Opposition Brief — Koziol v. Bombardier-Rotax GmbH Motorenfabrik (No. 05-633)

4

the issues argued in the Petition for Writ of Certiorari

relating to the decision of the New Jersey Federal

District Court. As a result, the sole issue that remains

open for consideration in the Petition for Writ of

Certiorari is whether the analysis of general personal

jurisdiction includes considerations of “reasonableness”

or “fairness”. On this issue, it is the Petitioners’

position that a court applying a general jurisdiction

long arm statute should ignore whether a finding of

such jurisdiction would be reasonable or fair. As shown

below, since there are no compelling reasons for

granting a Writ of Certiorari for any of the arguments

proffered by the Petitioners, the Petition should be

denied.

STATEMENT OF THE CASE

1. THE ILLEGAL FLIGHT

On March 20, 1999, the Petitioner Theodore

Koziol flew in the state of New Jersey as a passenger in

a borrowed home built aircraft. NTSB Rpt. p. 1, NJ-00

Dkt. 48. The pilot informed the Petitioner Koziol before

the flight commenced that the aircraft was not legal to

fly under applicable Federal regulations because it

carried too much fuel to qualify as an ultralight aircraft.

Id. at p. 1d. Additionally, the fight was illegal because

FAA regulations only allow dual occupancy of an

ultralight (if otherwise legal, which this was not) for

purposes of flight instruction, and Koziol emphatically

denied to the NTSB that he was a student on the flight.

Id. at pp. 1 & 1d.

On the day of the flight, the pilot initially told the

Petitioner Koziol that the flight must be cancelled due

to high winds, but later in the day the flight proceeded

a

after the pilot looked toward the windsock and said he

“thought it would be all right to fly.” /d. at p. 1. After

the Petitioner Koziol was outfitted to fly, the engine

was started, and then the engine stopped while the

airplane was still on the ground. /d. According to the

Petitioner Koziol, “{t}he motor was restarted, but no

one said anything as to why it stopped.” /d.

The aircraft headed down the runway for a

downwind takeoff. /d. at p. la. As the takeoff roll

commenced, the Petitioner Koziol felt gusts of wind.

Id. Once airborne, while still flying downwind, the

aircraft began to turn right. /d. The Petitioner Koziol

described to NTSB what he experienced while in the

right turn back towards the wind: “it felt like a gust of

wind turned the airplane to the right, and other gusts

were forcing the airplane up and down.” /d.

A witness said the plane reached an altitude of

roughly 60 to 70 feet over 40 foot trees with the engine

on. /d. at p. la. While in a right turn the engine

stopped. /d. According to a witness, the plane glided

for about two to four seconds after the stoppage, then

began a gradual turn. /d. The turn increased sharply,

and the plane “appeared to half-cartwheel.” = /d.

According to the Petitioner Koziol, the pilot did not

make any attempt to restart the engine.” /d. The

Petitioner Koziol felt the aircraft “go out of control”,

and the aircraft impacted the ground. /d.

Prior to the accident, the Pilot had been quoted in a New Jersey

newspaper ax saying, “You're in control of your safety. You're as

safe as your skill and training. Your engine could stop, but it means

nothing. You can easily glide down to a safe landing if you have the

skills.” (NTSB Rpt, p. Tb, NJ-00 Dit. 48).

6

Ii. KODIAK’S SALE OF THE ENGINE IN THE

BAHAMAS

Kodiak, a Bahamian corporation with its

principal place of business in Nassau, Bahamas, sells

engines in the Bahamas. Ronveaux Afft. 74 1,5, FL-02

Dkt. 23. Kodiak sold a Bombardier-Rotax 582-UL

light-aircraft engine serial number 5162734 (the

“Engine”) in the Bahamas to South Mississippi Light

Aircraft (“South Mississippi”). /d. at 47. Title to the

Engine passed to South Mississippi in the Bahamas,

and Tropix Air Limited, (“Tropix Air”), another

Ruhamian company, shipped the Engine in question

FOB Nassau, Bahamas to South Mississippi. /d. at 4 5;

Burrows Afft. 74 12-15, FL-02 Dkt. 37. Kodiak paid

Tropix Air for the shipment in Bahamian dollars by

transferring the fuads from Kodiak’s Bahamian bank

account to Tropix Airs Bahamian bank account.

Burrows Afft. 44 12-16, F L-02 Dkt. 37.

Tropix Air then delivered the shipment to

Miami, Florida, at which point, Tropix Express, Inc.

(“Tropix Express”), a separate Florida corporation,

received the shipment. /d. at § 10-13. Tropix Air

unilaterally decided to use Florida as the point of entry

into the United States based on its relationship with

Tropix Express, an independent Florida corporation

with which Tropix Air unilaterally contracted for

delivery. Id. at 4 6-7, 12-13. Tropix Express then took

delivery of the goods as a freight forwarder and

collected its shipping expenses from South Mississippi.

Id. 4 15.

As shown above, Kodiak’s involvement in the

sale of the Engine ended when the Engine was

purchased in the Bahamas by South Mississippi.

Kodiak was not involved with the shipment of the

‘

Engine into the United States since that was handled

by Tropix Air, on behalf of South Mississippi. Kodiak

was not involved with the transportation of the Engine

in the United States since that was handled by Tropix

Express, on behalf of Tropix Air. Kodiak had nothing

to do with the installation of the Engine into the

ultralight aircraft since it was an illegally constructed

home built aircraft, which was not even legal to fly, let

alone with a passenger.

Accordingly, there is no basis for the Petitioners

Lo assert personal jurisdiction over Kodiak - as found

by two Federal District Courts and one Circuit Court of

Appeal.

REASONS FOR DENYING THE PETITION

I. THERE IS NO SPLIT AMONG’ THE

CIRCUITS AS TO THE UNAVAILABILTY OF

DIRECT APPELLATE REVIEW OF A

TRANSFER ORDER ENTERED BY A

TRANSFEROR DISTRICT COURT LOCATED

IN A DIFFERENT REGIONAL CIRCUIT.

Contrary to the assertion of Petitioners, the

circuits are unanimous that the appellate review of a

transfer order entered by a transferor district court

located in a different regional circuit may not be the

subject of a direct appeal in the transferee circuit.

Instead, the party seeking to preserve the issue for

appeal must move for re-transfer in the transferee

court. See, ¢.g., Reyes v. DEA, S34 F.2d 109%, 1095 Cl"

Cir. 1987) (challenge to transfer in transferee circuit

needed to preserve for review); Songbyrd, Inc. v.

Estate of Grossman, 206 F.3d 172, 177 (2d Cir, 2000)

(re-transfer motion is required citing collected cases),

8

cert. denied, 531 U.S. 824 (2000); Nascone v. Spudnuts,

Inc., 735 F.2d 763, 765-776 (3d Cir. 1984) (re-transfer

motion and mandamus upon denial required to appeal

transfer order), /n re Carefirst of Maryland, Inc., 305

F 3d 253, 259 (4"" Cir. 2002) (indirect review of transfer

order available on denial of motion to re-transfer),

Painewebber, Inc. v. Chase Manhattan Private Bank,

260 F. 3d 453, 458-59 (5" Cir. 2001)(motion to retransfer

prior to addressing merits of transfer on appeal), Moses

v. Business Card Express, Inc., 929 F.2d 1131, 1136 (6"

Cir. 1991) (indirect review on denial of motion to re-

transfer), cert. denied, 502 U.S. 821 (1991); National-

Standard Co. v. Adamkus, 881 F.2d 352, 356 (7 Cir.

1989) (transfer order not subject to review without

motion to re-transfer) (citing 15 C. Wright, A. Miller

and E. Cooper, Federal Practice and Procedure § 3846

at 359-60 (1986)); Jn re Nine Mile Limited, 673 F 2d 242,

244 (8 Cir. 1982) (motion to re-transfer appropriate

method to seek review of transferred file (citing Wright

and Miller § 3846)); Posnanski v. Gibney, 421 F.3d 977,

980-81 (9° Cir. 2005) (transferee circnit may only

review denial of motion to re-transfer, not out of circuit

transferor court order of transfer (citing Wright and

Miller § 3846)); FDIC v. McGlamery, 74 F.3d 218, 222

(10° Cir. 1996) (re-transfer motion required for indirect

review of transfer erder for lack of personal

jurisdiction); Roofing :& Sheet Metal Services, Inc. v. La

Quinta Motor Inns, fuc,, 689 F.2d 982, 989 (11 Cir.

1982) (motion to re-transfer appropriate means of

seeking appellate review of outside circuit transfer

order); Starnes v. McGuire, 512 F.2d 918, 924 (D.C. Cir.

1974) (motion to re-transfer appropriate course of

action to preserve issue for review by transferee

9

circuit). Where, as here, the Petitioners never sought

re-transfer the issue is waived. See, e.g., National-

Standard, 881 F.2d at 356 (right to appeal transfer

waived when record shows no attempt to object to

transfer order prior to appeal).

Since the Petitioners failed to make a motion to

re-transfer the case back to the New Jersey Federal

District Court, the Eleventh Circuit was following

settled precedent when it dismissed the appeal as to

issues relating to the transfer order entered by the

New Jersey Federal District Court. Pet.App. 16a.

The Petitioners cite many cases in support of

their contention that pre-transfer orders may be

reviewed by the Circuit Court presiding over the

transferee district court. However, none of the cited

cases are applicable to the instant case involving the

attempt by Petitioners to appeal the transfer order

itself. For example, in Chaiken v. VV Publishing

Corp., 119 F.3d 1018, 1024-25 (2d Cir. 1997), cert.

denied, 522 U.S. 1149 (1998) (Petition, at 13), the

interlocutory order dismissing some, but not all, of the

defendants was entered over eight months before the

agreed transfer order was entered and was unrelated to

the reason for the transfer. /d. The propriety of the

transfer order itself was not appealed. /d. at 1025.

In other cases cited by Petitioners, the rulings

by the respective transferor courts were on substantive

legal issues whose determination was incorporated into

the final judgment, rather than as here where the

issues sought to be appealed relate only to the

propriety of the transfer itself and have no bearing on

the merits. See, e.g., Tel-Phonic Services, Inc. v. TBS

" Publie records indicate that Federal Circuit decisions are

likewise in accord with the above-cited decisions.

10

Int'l, Inc., 975 F.2d 1134, 1187 (5 Cir. 1992) (dismissal

of RICO claims); Equal Employment Opportunity

Comm'n v. Northwest Airlines, Inc., 188 F.3d 695, 697

(6" Cir. 1999) (summary judgment on sexual

harassment claims); Astarte Shipping Co. v. Allied

Steel & Export Svc., 767 F.2d 86, 87 (5 Cir. 1985)

(maritime attachment); Petition, at 13-14.

In sum, all of these cases are unlike the present

case in which the Petitioners, by their own request to

the New Jersey Federal District Court timely modified

the final dismissal order into a transfer order, which

they now seek to appeal. Had the Petitioners elected to

appeal the final dismissal to the Third Circuit, they

could have done so since that final dismissal closed the

case (Kod.App. 1b-2b) and was appealable at the time.

In fact, the Petitioners had until May 24, 2008 to take

the appeal to the Third Circuit, and instead rushed to

modify the April 24, 2003 order, which they succeeded

in doing on May 22, 2003, obviously in order to get a

transfer in place prior to the expiration of the appeal

period,

The sole case cited by Petitioners which appears

to support appellate jurisdiction over an out-of-circuit

transfer order is American Fidelity Fire Insurance Co.

v. USDC for the Northern Dis. of Cal, 588 F.2d 1371 (9"

Cir. 1976) (Petition, at 14). An examination of that

ruling shows that the court’s commentary arose as dicta

in the consideration of a writ of mandamus directed to a

transfer order entered by a district court within the

Ninth Cireuit, and cited only two supporting

references, both mandamus cases involving requests for

mandamus to prevent transfers from district courts

within the respective appellate court's circuit. /d. at

1377 n.4. Though not mentioned by the Petitioners, the

Ninth Cireuit has since rejected the American Fidelity

1]

logic, holding that that “|ojur statement in footnote four

was both overbroad and dicta”. Posnanski, 421 F Ad at

979.

Thus, the cases cited by the Petitioners do not

reflect a split in the circuits, but more importantly to

this appeal address wholly different situations than the

one faced by the Eleventh Circuit in this case. Since

there is no split among the circuits as to the actual issue

at hand, there is no compelling reason for this Court to

grant the Writ of Certiorari based on the Eleventh

Cireuit’s correct dismissal of Petitioners’ improper

attempt to appeal the ruling of the New Jersey Federal

District Court dismissing and transferring the case to

Florida.

Il. THE PETITIONERS’ ADMIT THAT THE

TRANSFER OF THE NEW JERSEY ACTION

TO FLORIDA ELIMINATED ANY

INJUSTICE CAUSED BY THE FINDING

THAT THE NEW JERSEY FEDERAL

DISTRICT COURT LACKED PERSONAL

JURISDICTION OVER THE DEFENDANTS.

In their reply brief to the New Jersey Federal

District Court in support of their motion to transfer the

dismissed case to the Florida Federal District Court,

the Petitioners state that “granting | Petitioner's] relief

from the Court’s Apnml 24, 2003 Order under Federal

Rule of Civil Procedure 5&e) or 6GO(b) will eliminate

any injustice caused by dismissing, for lack of personal

jurisdiction, this otherwise timely action.”

Plaintiffs’ Reply in Suppert of Their Motion, Pursuant te

Fed. R.Civ.P. 5&6) and Fed.R.Civ.1". Gb), for Relief from the

Dismissal Order Entered on April 24, 2005. at pp. 44, NJ-00

DOKL ED Connpehasis ached ).

12

Since the New Jersey Federal District Court

granted the transfer of the dismissed action from New

Jersey to Florida, the New Jersey Federal District

Court, by the Petitioners’ own admission, eliminated

any injustice caused by the decision entered by the

New Jersey Federal District Court dismissing the

claims for lack of personal jurisdiction for which the

Petitioners failed to take an appeal to the Third Circuit

at the time of the dismissal.

Moreover, the reason the Petitioners sought to

have the dismissed New Jersey litigation transferred to

Florida, rather than closed as originally done by the

New Jersey Federal District Court (Kod.App. 1b-2b),

was not for purposes of further litigating jurisdictional

issues relating to New Jersey. Rather, the Petitioners

sought to obtain the benefit of the April 24, 2000 filing

date for their otherwise time-barred litigation pending

in the Florida Federal District Court. Motion to

Modify, at 4-5 (“If the Court exercises its power to

transfer the complaint to the Southern District of

Florida, the defendants will not be able to claim that

the action filed in Florida is untimely.”). As

represented by Petitioners to the New Jersey Federal

District Court, the transfer to Florida “will not change

the substance of this Court's finding of lack of

jurisdiction in New Jersey”, but rather it will provide

protection to the Petitioners if the Jefendants in

Florida challenge the Florida complaint based on the

statute of limitations. /d. at 7-8. The Petitioners’

remained satisfied to litigate in Florida up until the day

that the Florida Federal District Court ruled against

them, as is shown by their decision not to move for re-

transfer. However, once the adverse ruling was

entered by the Florida Federal District Court, it was

too late to change their minds and the issue was not

SD LE TIT

13

preserved for appeal.

Since the Petitioners obtained the transfer they

requested from the New Jersey Federal District Court,

there is no compelling reason for this Court to grant a

Writ of Certiorari to address any issues relating to the

decision by the New Jersey Federal District Court.

ill. THE PETITIONERS CANNOT CLAIM

ERROR REGARDING THE APPLICATION

OF THE ASAHI METAL OPINION IN THIS

CASE.

A. The _ Petitioners’ Arguments Below

Applied Justice O’Connor’s Opinion To

The Facts And Never Raised The

Concurring Opinions Of Justices

Brennan And Stevens.

Without mentioning to the New Jersey Federal

District Court this Court’s plurality opinion in Asahi

Metal Indus. Co., Ltd. v. Superior Court of Cal., 480

U.S. 102 (1987), the Petitioners argued that the

defendants “engaged in additional conduct with the

forum State of New Jersey beyond placing the product

into the stream of commerce.” Pet.App. 28a n.6. Since

the Petitioners argued in favor of personal jurisdiction

under the standard set forth by Justice O’Connor in the

Asahi Metal plurality opinion, they cannot now argue

that the application of that jurisdictional standard was

incorrect.

On appeal to the Eleventh Circuit, the

Petitioners presumed that the Third Circuit would

adopt the standard set forth by Justice O’Cennor in the

Asahi Metal plurality opinion, once again never argued

against the application of that standard, ana cited

l4

factual references in support of the jurisdictional

analysis articulated in Justice O’Connor’s plurality

opinion in Asahi Metal.”

Now, for the first time, the Petitioners contend

that “the view of stream of commerce set out in the two

concurring opinions in Asahi Metal by Justices

Brennan and Stevens should control.” (Petition, at 17).

Since “this argument was neither raised nor considered

below” Kodiak submits that this Court should decline to

consider this point. Grupo Mexicano de Desarrollo,

S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318 n3

(1999). In other instances in which a party has failed to

raise an argument below, this Court has declined to

consider the point on appeal. See, ¢.g., Sprietsma v.

Mercury Marine, 587 U.S. 51, 56 nA (2002), TRW, Ine.

v. Andrews, 534 US. 19, 34 (2001), Grupo Mexicano,

527 U.S. at 318 n.3. Accordingly, since the Petitioners

are presenting an issue that was not presented to any

of the courts below, there is no compelling reason for

this Court to grant a Writ of Certiorari on this point.

Petitioner's Brief to Elewenth Cireuit. 11° Cir, Dkt. June 21.

2004, at 24.

15

B. Despite The Failure Of The Petitioners

To Advocate In Favor Of The

Concurring Opinions Of Justices

Brennan And Stevens In The Asahi

Metal Case, The New Jersey Federal

District Court Opinion Found That

Personal Jurisdiction Was Lacking Even

Under The Concurring Opinions Of

Justices Brennan And Stevens.

Since the New Jersey Federal District Court

determined that the Petitioners lacked personal

jurisdiction over the defendants under both Justice

O’Connor’s plurality opinion (Pet.App. 38a) as well as

the concurring opinions of Justices Brennan and

Stevens (Pet.App. 38a-39a n.10) there is no compelling

reason for this Court to grant the Petition for

Certiorari. Contrary to the assertion of the Petitioners

in their Petition for Certiorari, the New Jersey Federal

District Court did not apply only the plurality opinion

of Justice O'Connor, but rather it applied all of the

opinions in the Asahi Metal case.

The Third Circuit in Pennzoil Prods. Co. rv.

Colelli & Assocs., Inc., 149 F 3d 197, 207 n.11 Gd Cir.

1998) (Petition, at 17), stated that “[tlhe clear

satisfaction of both the O'Connor and the Brennan

standards obviates any need to adopt one over the

other.” Here, the failure of the Petitioners to establish

jurisdiction in New Jersey under any of the three

opinions in the Asahi Metal case, obviated both the

need for the lower courts to select one standard over

another and the need for this Court to grant certiorari

to resolve the issue.

In any event, many of the circuit courts

considering the proper analysis of personal jurisdiction

16

post-Asahi Metal have applied the type of standard

articulated by Justice O’Connor in requiring a plaintiff

to establish more than merely a stream of commerce to

sustain personal jurisdiction over a defendant. See, ¢.q.,

Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 451-

52 (3d Cir. 2008) (requiring more than merely stream of

commerce to sustain personal jurisdiction); Cybersell,

Inc. v. Cybersell, Inc., 130 F 3d 414, 418 (9° Cir. 1997)

(same); Lesnick v. Hollingsworth & Vose Co., 35 F Ad

939, 945-47 (4" Cir. 1994) (same), cert. denied, 513 U.S.

1151 (1995); Bout v. Gar-Tee Prods., Inc., 967 F 2d 671,

683 (1i" Cir. 1992) (Asahi Metal did not change

requirement in circuit that personal jurisdiction be

based on more than merely stream of commerce),

Falkirk Mining Co. ». Japan Steel Works, Lid., 906

F.2d 369, 375 (8" Cir. 1990) (requiring more than

merely stream of commerce to sustain personal

jurisdiction); Madara ». Hall, 916 F 2d 1510, 1519 C11"

Cir. 1990) (applying Justice O'Connor's standard for

personal jurisdiction).

Since the New Jersey Federal District Court

utilized both standards to review the factual allegations

of the Petitioners and many of the circuits to have

addressed this issue, including both the Third Circuit

and Eleventh Cireuit, are in conformity with the

application of the plurality opinion of Justice O’Connor,

there is no compelling reason for this Court to grant a

Writ of Certiorari to address the plurality opinion in

Asahi Metal.

17

C. The Plurality Nature of the Asahi Metal

Opinion Does Not Impact Upon The

Dismissal Of The Petitioners’ Florida

Action Since That Dismissal Was Based

On The Portion Of Justice O'Connor's

Opinion In Which All Justices

Concurred.

As to the failure of Petitioners to establish

jurisdiction over the defendants in Florida, this portion

of the Asahi Metal opinion is not at issue in reviewing

the decisions of the Florida Federal District. Court or

the Eleventh Circuit. Both of those decisions were

based on the failure of the Petitioners to establish that

the traditional notions of fair play and substantial

justice are satisfied. Specifically, the Eleventh Circuit

opinion stated that “even if... the Florida long-arm

statute conferred jurisdiction, we agree with the

district court that the exercise of jurisdiction would

offend traditional notions of fair play and substantial

justice.” (Pet.App. 7a-8a).

Accordingly, there is no compelling reason for

this Court to grant a Writ of Certiorari to examine this

aspect of the Asahi Metal decision.

18

IV. THERE IS NO BASIS FOR THIS COURT TO

REVIEW THE APPLICATION OF A TWO-

PART JURISDICTIONAL TEST TO CLAIMS

OF GENERAL PERSONAL JURISDICTION.

A. The Eleventh Circuit's Opinion Was

Based On The Failure Of Petitioners To

Establish Jurisdiction Under the

Florida Long Arm Statute And Whether

Asserting Personal Jurisdiction Would

Offend Traditional Notions Of Fair Play

And Substantial Justice Was Merely An

Additionai Point Of Consideration.

A review by this Court of whether a

jurisdictional analysis should include consideration of

the factors of fair play and substantial justice would not

affect the outcome of the personal jurisdiction dispute

between the parties in this action. The Eleventh

Circuit determined that the Petitioners failed to prove

the first prong of the jurisdictional analysis, namely

whether the Petitioners established “specific

jurisdiction” pursuant to the Florida long-arm statute

(Fla. Stat. § 48.19301Ma)) or “general jurisdiction”

pursuant to the Florida long-arm statute (Fla. Stat. §

48.193(2)). Pet. App. 5a-7a. Having determined that the

Petitioners failed to establish the first prong of the

jurisdictional test, there was no need for the Eleventh

Circuit to consider any further jurisdictional analysis.

Since any finding by this Court regarding the propriety

of examining “traditional notions of fair play and

substantial justice” in the context of a general

jurisdiction analysis would have no effect on the result

in this case, there is no compelling reason for this Court

to grant a Writ of Certiorari to address this issue.

19

B. Constitutional Due Process

Requirements Must Apply To The

Analysis Of General Jurisdiction.

There is no compelling reason for this Court to

address the application by the Eleventh Circuit of a

two-part jurisdictional analysis in general jurisdiction

eases. Whether addressed as part of a statutory

analysis or independently, Due Process considerations

are part of every jurisdictional analysis. Respondents

have reviewed many decisions in which courts

specifically recognize that a general jurisdiction

analysis includes determining whether asserting

personal jurisdiction in the forum state would be

reasonable, such that it does not offend traditional

notions of fair play and substantial justice. See, ¢.g.,

Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286,

291-92 (1980); Harlow v. Children’s Hospital, 482 F 3d

50, 57-58 (1" Cir. 2005); Intera Corp. v. Henderson, 428

F.3d 605, 615-16 (6° Cir. 2005); Horizon Aggressive

Growth, LP. v. Rothstein-Kass, P_A., 421 F.3d 1162,

1166-67 (iL Cir. 2005); Dever v. Hentzen Coatings,

lnc., 380 F.3d 1070, 1073-74 (8 Cir. 2004), cert. denied,

125 S.Ct. 1304 (2005); Freudensprung v. Offshore Tech.

Sves., lne., 379 F 3d 327, 343 (5 Cir. 2004).

As clearly articulated in a portion of Justice

O’Connor’s opinion in Asahi Metal joined by all

Justices, “[t)he strictures of the Due Process Clause

forbid a state court to exercise personal jurisdiction

over Asahi under circumstances that would offend

“traditional notions of fair play and substantial

justice.”""” Asahi Metal, 480 U.S. at 113 (citation

omitted). The constitutional mandates of the Due

Process clause must be complied with by all parties

seeking to assert personal jurisdiction over a party.

20

In Burnham v. Superior Court of California, 495

U.S. 604 (1990), this Court reiterated the settled

principle that “lilm what has become the classic

expression of the criterion, we said in /nternational

Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90

L.Ed. 95 (1945), that a state court’s assertion of

personal jurisdiction satisfies the Due Process Clause if

it does not violate “traditional notions of fair play and

substantial justice.”” Burnham, 495 U.S. at 609

(quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).

Some court opinions have condensed the factual

analysis under a long arm statute with the due process

analysis, especially in instances in which the conduct of

the defendant satisfies both statutory and

constitutional requirements for personal jurisdiction.

See, e.g., AutoNation, Inc. v. Whitlock, 276 F .Supp.2d

1258, 1262 (S.D. Fla. 2003); Nichols v. Paulucci, 652

So.2d 389, 391 (Fla. 5° DCA), rev. denied, 659 So.2d

1088 (Fla. 1995), cert. denied, 516 U.S. 1046 (1996).

However, this does not eliminate the requirement that

the court examine Due Process requirements in

determining whether a defendant is subject to personal

jurisdiction. See Burnham, 495 US. at 609.

Accordingly, there is no compelling reason for

this Court to grant a Writ of Certiorari to address the

personal jurisdiction analysis performed by the

Eleventh Circuit since it comports with the Due

Process analysis established by the Constitution and

followed by this Court.

2)

CONCLUSION

For the foregoing reasons, the Petition for a

Writ of Certiorari should be denied.

Respectfully submitted,

CONNIS 0. BROWN, III

Counsel of Record

SETH P. ROBERT

BROWN ROBERT, LLP

150 North Federal Highway

Suite 200

Fort Lauderdale, FL 33301

(954) 8382-9400

Attorneys for Respondent

Kodiak Research Ltd.

Ib .

Filed 4/24/2003

Civ. No. 00-1938 (GEB)

INITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

THEODORE KOZIOL and LOIS KOZIOL,

Plaintiffs,

v.

BOMBARDIER-ROTAX GmbH

MOTORENFABRIK; BOMBADIER INC.,,

KODIAK RESEARCH LTD.; and ROTECH

RESEARCH CANADA LTD., awa KODIAK

RESEARCH CANADA, LTD.

Defendants.

ORDER

This matter comes before the Court upon the motions to

dismiss by defendants, Bombardier-Rotax Gmbh

Motorenfabrik; Bombadier Inc., Kodiak Research Lid.;

and Rotech Research Canada Ltd, a.k.a. Kodiak

Research Canada, Ltd. on plaintiffs’ complaint; and the

Court having considered the parties’ submissions; and

having heard oral argument on March 3, 2003; and for

the reasons stated in the Memorandum Opinion

accompanying this order;

IT IS this 23" day of April, 2003

ORDERED that defendants’ motions to dismiss are

GRANTED; and it is further

ORDERED that the clerk should mark this case

CLOSED.

s/

GARRETT E. BROWN, JR., U.SDJ.

U)

No. 05-633

In The

Supreme Court of the United States

7

THEODORE KOZIOL and LOIS KOZIOL,

Petitioners,

Vs.

BOMBARDIER-ROTAX GmbH MOTORENFABRIK;

KODIAK RESEARCH, LTD.; ROTECH

RESEARCH CANADA LTD., a/k/a KODIAK RESEARCH

CANADA, LTD.; AERO DISTRIBUTION LIMITED;

AERO DISTRIBUTION INTERNATIONAL

LIMITED; and PASCAL RONVEAUX,

Respondents.

.

On Petition For Writ of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

S

RESPONDENT BOMBARDIER-ROTAX

GmbH MOTORENFABRIR’S BRIEF IN

OPPOSITION TO PETITION FOR CERTIORARI

——— @

JOSHUA D. LERNER*

Scott M. SARASON

ALEXIS A. CALLEJA

RUMBERGER, KIRK & CALDWELL

Brickell Bayview Centre, Suite 3000

80 S.W. 8th Street (33130-3037)

Post Office Box 01-9041

Miami, Florida 33101

Telephone: (305) 358-5577

Telecopier: (305) 371-7580

Counsel for Respondent

Bombardier-Rotax GmbH

Motorenfabrik

*“Denotes counsel of record.

February 17, 2006

|

QUESTIONS PRESENTED

Respondent submits the following questions more

accurately reflect the issues to be decided by the

Court in determining whether to grant the Petition for

Certiorari.

l.

Whether there is a conflict among the circuits

regarding a circuit court’s appellate

jurisdiction to review an _ immediately

appealable pre-transfer order by a transferor

district court located outside the circuit?

Whether this case is an appropriate vehicle for

review of Asahi Metal's stream of commerce

analyses?

Whether the Eleventh Circuit adhered to this

Court’s well-settled precedent in concluding

the Florida District Court lacked personal

jurisdiction over Respondent?

LIST OF ALL PARTIES IN COURT BELOW

Petitioners correctly identify the parties in the court below.

Pet. at iil.

TABLE OF CONTENTS

QUESTIONS PRESENTED .cccccoccccsccccccsecsqesosccscccsccsescescorece i

LIST OF ALL PARTIES IN COURT BELOW .............. ii

BABE OF CITATIONS ceccocecnsesescrerescevesseveenevosessosooosset iv

STATEMENT OF THE CASE ..cccccccocecosssessoscccssessssscsscovsees |

REASONS FOR DENYING THE WRIT..........-ccccceseseeeees 8

I. There Is No Conflict In The Circuits On

The Question Presented By This Case:

Whether A Circuit Court May Review An

Immediately Apypealable Pre-Transfer

Order Of A Transferor District Court

Located Outside The Circuit..............cccscrsssessserees 10

il. The Facts Of This Case Make It A Poor

Vehicle For Supreme Court Review Of

Asahi NAfleta/y Stream of Commerce

PROGTY cosccrecespeevecccersensnnssnecenewicquvecbeesrenemnnsesstoanseioies 21

ill. The Eleventh Circuit Properly Applied

This Court’s Settled Precedent In Finding

The Florida District Court Lacked

Personal Jurisdiction Over Respondent............... 26

BING LLUSIOIIN cncsssccrccccccccecerssocssccsneenevenscssuscocoseosseseesteosseees 29

TABLE OF CITATIONS

Cases 4

American Fidelity Fire Ins. Co. v. United States District

Court,

538 F.2d 1371 (9th Cir. 1976)......eccccrcserseoees 16, 18, 19

Asahi Metal Industry Co., Ltd. v. Superior Court of Calif,

Solano Co..,

480 U.S. 102 (1987)......... 2, 3r 4, Do Oly a5 Bay Say 20

Asarte Shipping Co. v. Allied Steel &

Export Svc.,

POT P20 BGT” Ce FID ess pivcsorsisteonsaricceer 16, 19

Barone v. Rich Brothers Interstate Display Fireworks

Company,

Bo Fe Fe Ce Cle Fe eotndnvcsichisiacbtitepionicacicecens 24

Beverly Hills Fan Company v. Royal Sovereign Corporation,

BE Oe LOI A, FR ii ccenttsccnmiervjaniedivapaiverns 25

Boit v. Gar-Tec Products, Inc.,

a pg TSE ST Le SS. « | MERU pRRn i orapben, 24

Brock v. Entre Computer Ctrs., Inc.,

FEF Fle Fae PE ls BFF oc sevlcssipnessincerpixiewbtiieen 17

Carteret Sav. Bank, FA v. Shushan,

SEF Fi 2A IG GE Cir i ivticittdersithnlsitiscsanianasicn 13

Chapple v. Levinsky,

ee PP Le 6 AE). ed aeration eee) 13

Cohen v. Beneficial Industrial Loan Corp.,

FAT Wee FOE CEPTFD i svcsnipsoensienicoveputeninnavebeamstbiginn 1}

Coopers & Lybrand v. Livesay,

EE ReaD COW Fe cvccncevesninsnevrsnsiusannibansintncbevinieantn 12

Dehmlow v. Austin Fireworks,

§ key fe S.A eee 13

FDIC v. McGlamery,

Pee 7) fi lk | ene 13

Gulf Research & Dev. Co. v. Harrison,

Re 2 7g. ee. eee ee 18

Harding v. Williams Prop. Co.,

1998 U.S. App. LEXIS 21269 (4th Cir. 1998)......... 14

Helicopteros Nacionales de Colombia, S. A. v. Hall,

466 U.S. 408 (U.S. 1984)..........cccccccsccoseserecerereeeaOy 27

Hill v. Henderson,

yy bk Rois ® , eee 14

Illinois Tool Works, Inc. v. Sweetheart Plastics, Inc.,

fb fyi 7a. Lo #) .) | eo 17

In re Corrugated Container Anti-Trust Litigation,

620 F.2d 1086 (Sth Cir.-OLD 1980).............:ccceeee 20

In re Grand Jury Proceedings,

ee Fae I Ce Ge SONY icccctvsstiscaviinicoenvecneienaietss 12

Interfirst Bank Clifton ». Fernandez,

ie Py i fe & cn

International Shee Co. v. Washington,

Bp Raa atte EG I cacecbvecetinevcnvennesveesecicientonsticmitas ap

Jones v. Infocure Corp.,

SIO F S8 DEP CFU CU, FICE Picerercecescoensesssocivenssonseesh 14

Lewelling v. Farmers Ins. of Columbus, Inc.,

og ke bird le Bn 17

Linnell v. Sloan,

pf lf le 8 17

Madara v. Hall,

opm be tl, Le & | a eR eee. 24

Magnetic Eng'g & Mfg. Co. v.

Dings Mfg. Co.,

178 F.2d 866 (2d Cir. 1950)..........c-cceeeeseees 16, 18, 19

McGeorge v. Continental Airlines, Inc.,

S71 F.2d 952 (10th Cig. 1969)......cccccoccccvvccececccccccssoce 14

Pennzoil Prods. Co. v. Colelli & Assocs.,

cog ft fi sgk fe S| Mere AS 25

Perkins v. Benguet Consolidated Mining Co.,

PO A SEE Gi eee ticttciericteininindclndeeiochioiocdinn 27

Posnanski v. Gibney,

421 F.3d 977 (9th Cir. 20085)..........cccceccreseees 16,17, 19

Preston Corp. v. Raese,

DIE FT Ns CR irrcctitnecessttdstantancomepinds 18

Purex Corp. v. St. Louis Nat'l

Stockyards Co.,

cy gw ty le MD, ) NREL Denne Aa 17

Reves v. Supervisor of DEA,

oem § tis fe AD : emo 17

Roofing & Sheet Metal Services v. LaQuinta Motor Inns,

689 F.2d 982 (11" Cir. 1982)........... 12, 13, 14, 16,17

Vil

Ruston Gav Turbines, Inc. v. Donaldson Company,

DF» -GEF Ole Che ID ecccreccceseccsessssnsinvsconsbenss 24

Shaffer v. Heitner,

SID Ue SCTE 1 Pcccnctstcecrivnscevtaininitiainainainlapeitnalin 27

Shute v. Carnival Cruise Lines,

897 F.2d 377 (9th Cir. 1990),

rev'd on other grounds, 499 U.S. 585 (1991)........... 25

Starnes v. McGuire,

168 U.S. App. D.C. 4, 512 F.2d 918 (D.C. Cir. 1974)

sahsiiaiciesiatiuibadiiniteaisianlteccadicea tie abasic ti-on cla lssiae i Cie) aaa 17

TechnoSteel, LLC v. Beers Constr. Co.,

rope & Be Le Ay.) Se, eco 1]

Tobin v. Astra Pharmaceutical Products, Inc.,

SPS FG SAe Bae CW 89a iviscsidccicssecetinicecamtvets 25

United States v. Copley,

EF Fe Cee en Ce Bi ccincttbtiestotitctiesitcipicshaaits 17

United States v. French,

FOr Fale Be CHU, Se inteintcietioetthanees 19

Vermeulen v. Renau!t, U.S.A., Inc. ,

SOS FZ USS4 ChE Cae, BO a hiceiececctcinsivccacetiinsebnescs 25

Wade v. Farmers Ins. Group,

1996 U.S. App. LEXIS 23393 (7th Cir. 1996)......... 13

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286

CI ysliscactithecbicsisa.s dascibbdceddamiasaidilincememeaidaass ta aanrn

Vill

Statutes

28 U.S.C. § 1291. SRE nee

I occas peaciinnineaspepetnianibiiasasientiieniendnin a

28 U.S.C. § 1292(b)............ a A Se Se OS OR

EEE Ee aan eee eee a

, ALS ST olt Dy. | ) rT ee 11,14

28 U.S.C. § 1404(a) .............. Hise : 5

Se | | MAGE: 5

28 U.S.C. § 1651....... scale : 1}

Other Authorities

23 Moore's Federal Practice § 510.21[3][a] (3d ed. 1991) ..28

Frankfurter and Hart, The Business of the Supreme Court at

the October Term, 1933 Harvard L. Rev. 238, 268

ORE 28

STATEMENT OF THE CASE

Petitioners’ procedural history of the case and

statement of opinions below are largely correct, except

Petitioners misstate the date of the New Jersey District

Court's order dismissing the Complaint for lack of personal

jurisdiction. Petitioners state this opinion was entered on

April 24, 2004. The correct date, however of this opinion is

April 24, 2003. Pet. App. 20a. Although Petitioners’ history

of the case is largely correct in what it does say, it omits

important points. Consequently, rather than restate the entire

case history, Respondent Bombardier-Rotax GMBH

Motorentabrik (“Respondent”) will focus on Petitioners’

OMISSIONS.

On March 20, 1999, an ultra-light aircraft containing

an engine manufactured by Respondent, in which Petitioner

Theodore Koziol was a passenger. crashed in New Jersey.

Petitioners, residents of New Jersey, filed a products liability

action against Respondent and some of its distributors in the

United States District Court for the District of New Jersey

based on diversity of citizenship. Pet. at 3.

Respondent is an Austrian corporation with its

principal place of business in Gunskirchen, Austria. Pet.

App. 53a. It manufactures ultra-light engines in Austria and

sells some of its engines to Kodiak Research Ltd.

(“Kodiak”), a Bahamian corporation with its principal place

of business in the Bahamas. Pet. App. 55a - 56a. Kodiak

distributes some of Respondent's engines pursuant to an

international distribution agreement that permits but does not

require Kodiak to distribute Respondent's engines in the

territories of North and South America, which may include

the United States, Brazil, Chile, Argentina and Colombia.

Pet. App. 44a - 45a, 55a - 56a. In the instant case,

Respondent sold the subject engine to Kodiak pursuant to the

international distribution agreement. Pet. App. 65a. As in

all cases where Kodiak purchases engines from it,

2

Respondent sold and transferred title to the subject engine to

Kodiak in Austria. Pet. App. 55a - 56a.

After Petitioners filed suit in the New Jersey District

Court, all defendants moved to dismiss the complaint for

lack of personal jurisdiction. Before the New Jersey District

Court ruled on Respondent’s motion to dismiss, Petitioners

filed another complaint (a “saving action”) against

Respondent in the Southern District of Florida. On April 24,

2003, the New Jersey District Court granted all defendants’

motions to dismiss for lack of personal jurisdiction, finding

all defendants lacked minimum contacts with New Jersey.

Pet. App. 20a - 39a. The April 24, 2003 order dismissing the

Complaint states it is “ORDERED that defendants’ motions

to dismiss are GRANTED; and it is further ORDERED that

the clerk should mark this case CLOSED.” Resp. App. 16a -

7a.

In its April 24, 2003 opinion supporting its dismissal

of the Complaint for lack of personal jurisdiction, the New

Jersey Court, adopting the steam of commerce view stated in

Justice O’Connor’s plurality opinion in Asahi Metal Industry

Co., Ltd. v. Superior Court of Calif., Solano Co., 480 U.S.

102 (1987), held all defendants lacked minimum contacts

with the state of New Jersey. The New Jersey Court found

that Respondent's mere knowledge that the stream of

commerce may sweep its engines into New Jersey, absent

other additional conduct showing purposeful availment, was

insufficient to establish minimum contacts consistent with

Due Process. Pet. App. 29a - 30a.

Notably absent from the Petition is any explanation

of the reasons why the New Jersey Court adopted Justice

O°Connor’s view of stream of commerce over the views of

the other plurality opinions in reaching its decision that

Respondent lacked minimum contacts with New Jersey.

Such an explanation is essential to a full understanding of the

——_

3

New Jersey District Court's decision finding a lack of

personal jurisdiction over the foreign defendants in this case.

In explaining, in footnote 6 of its April 24, 2003

opinion, why it adopted Justice O’Connor’s stream of

commerce view, the New Jersey District Court expressly

considered the opinions that Justice Brennan and Justice

Stevens authored in Asahi Metal:

There are two other standards based on the

stream of commerce theory found in Asahi .

. . Justice Brennan opined that additional

conduct in the forum state did not have to be

shown . . . [because] awareness that the final

product is being marketed in the forum state

is sufficient . . . [however] Justice Brennan

determined that jurisdiction was not

appropriate over Asahi because it would not

comport with ‘fair play and substantial

justice’... Justice Stevens ... [concluded]

that additional conduct with the forum state

was not necessary to the Court’s

determination . . . [but held] jurisdiction

over Asahi cannot be exercised because it

would be ‘unreasonable and unfair.’

Pet. App. 28a.

After considering the differing views of stream of

commerce set forth in Asahi Metal, the New Jersey Court

explained the Third Circuit had not yet adopted any one

approach from Asahi Metal. Pet. App. 28a. Significantly,

the New Jersey Court decided to adopt Justice O’Connor’s

stream of commerce view in this case because Petitioners

themselves had argued throughout the case that the

defendants engaged in “additional conduct” in New Jersey

sufficient to establish minimum contacts. Footnote 6 of the

New Jersey Court's opinion further states: