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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005

## Text

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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

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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 ).

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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

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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:

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0475%3A2. Public record. Not legal advice.