. ., has in the past, including calendar year 1995, sold directly or through a distributor to national chain stores, Target and K-Mart, both of which have numerous stores in Arkansas;" (15) it is my information that Boto is currently selling to Wal-Mart whose home office is in Bentonville, Arkansas; (16) Hobby Lobby receives at its home office a monthly trade publication entitled Hong Kong Enterprise in which Boto advertises and which is also available on the Internet at HTTP://www.tdc.org.hk; and (17) while at Boto's home office in Hong Kong on April 17, 1997, he saw shipments in boxes with a stamped destination of Bentonville, Arkansas. 8 9, 80 L.Ed.2d 404 (1984) the Eighth Circuit "elaborated on the third factor (the relationship of the cause of action to the contacts), distinguishing between specific jurisdiction and general jurisdiction." The labels on the boxes which referred to Bentonville, Arkansas, are "private labels" which were furnished to Boto by Pacific Resources Export Limited. 
Hosoya moved to dismiss for lack of personal jurisdiction. Plaintiffs suggest that, by selling millions of dollars worth of its product each year to the country's largest national retailers, Boto is utilizing a significant United States distribution network. Hobby Lobby sought and was granted leave to file a third-party complaint against Boto and Everstar Merchandise Co., Ltd. . 1994). The orders came from Pacific Resources Export, Limited, a Hong Kong company. This wrongful death action was filed on August 9, 1996, in the Circuit Court of Benton County, Arkansas by Woodrow Smith, individually and in his capacity as administrator of the estate of Mary Elizabeth Smith. Boto simply sells the goods to the customer and arranges at the customer's expense for shipping from Hong Kong. In that case Barone was injured in Nebraska when a fireworks display he was helping set up went awry.
However, they contend the facts here show more than just foreseeability. We found that Hobby Lobby had advanced no facts tending to show that this court had personal jurisdiction over Boto. 1996). Even before this amendment, Arkansas's long-arm statute had been interpreted to extend to the limits of federal due process. . ." Arkansas, Fayetteville Division. 1994), cert. It was pursuant to this type of arrangement that the labels identifying Wal-Mart as the marketer of the trees were placed on the product boxes.
1996) (injection of the product into the stream of commerce, without more, would be at best a dubious ground for jurisdiction); Lesnick v. Hollingsworth Vose Co., 35 F.3d 939 (4th Cir. 1994). Kendall B. Jones, Fort Smith, AR, for Hobby Lobby. 55, in Rogers, Arkansas. Code Ann. Following the Supreme Court's decision in Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn. Burlington Industries, Inc. v. Maples Industries, 97 F.3d 1100, 1102 (8th Cir. With regard to the alleged sales to Wal-Mart, Boto points out it dealt only with Pacific Resources Export Limited.
Michael Shannon, Rose Law Firm, Little Rock, AR, for Boto. In his second affidavit, Green made the following statements regarding his conversations with Kao at Hobby Lobby's home office: All parties cite to and rely on cases dealing with the stream of commerce theory. Cir. It merely sold to customers who placed orders and then such customers determined where the goods would go without direction, or even input, from Boto. However, Boto has only dealt with Pacific Resources. 16-4-101 (Repl.
The court noted that: The court was careful to state it was not holding that Patterson would be subject to suit in any state where his software was purchased; nor did it hold that CompuServe could sue any "regular subscriber of its service for nonpayment in Ohio, even if the subscriber is a native Alaskan who has never left home." denied, 513 U.S. 1151, 115 S.Ct. . Rich Brothers purchased about $100,000 annually. Those nine distributors purchased between $250,000 and $1,000,000 in fireworks annually. This case is currently before the court on the motion of Boto Co., Ltd., to dismiss all claims against it. Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. About sixteen percent of the fireworks purchased were eventually resold into Nebraska. United States District Court, W.D. Under this type of arrangement, the products do not bear Boto's name but will instead bear the name of the customer or some other distinguishing mark. 1997) the court discussed in detail the impact of the Internet on the personal jurisdiction analysis. 1997), the Court found that an advertisement in a trade publication was an insufficient contact with the forum state because the defendant "did not contract to sell any goods or services to any citizens of Arkansas over the Internet site.". The court concluded the only "fair thing" to do was to allow Hobby Lobby to attempt once again to assert a claim against Boto. The Eighth Circuit cited Giotis v. Apollo of the Ozarks, Inc., 800 F.2d 660 (7th Cir. By affidavit, David Green, president of Hobby Lobby, states: (1) Hobby Lobby first established a store in Arkansas in 1984; (2) Hobby Lobby began purchasing from Boto in approximately 1985; (3) he has had "face-to-face discussions and conversations with Michael Kao . . 1994).
Hosoya sold products throughout the United States by utilizing nine distributors in six states. 16-116-107 (1987). On December 18, 1995, a fire occurred at the Smith residence. They argue Kao's purported ignorance that Boto's products are distributed in Arkansas by Hobby Lobby, or other Boto customers, defies reason and is willful. View cart for details. David McCune, Don Taylor, Davis, Cox Wright, Fayetteville, AR, for Everstar. Copyright 1995-2022 eBay Inc. All Rights Reserved. In the case of CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. Make your practice more effective and efficient with Casetexts legal research suite. It is alleged that the fire began in the vicinity of the artificial Christmas tree. One of the six salesmen was located in Nebraska. "[A] complaint should not be dismissed for want of jurisdiction, before trial, if there is any genuine issue as to any fact material to the jurisdictional question." The Supreme Court in Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. . Aaron Ferer Sons Co. v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir. 559, 62 L.Ed.2d 490 (1980) has been cited for the proposition that personal jurisdiction may follow a product if it is delivered "into the stream of commerce with the expectation that [it] will be purchased by consumers in the forum state." Barone, 25 F.3d at 614. Barone, 25 F.3d at 615. The third-party complaint alleges that Boto was the manufacturer and supplier of the artificial Christmas tree. 2569, 2580, 53 L.Ed.2d 683 (1977). Barone v. Rich Bros. Interstate Display Fireworks Co., 25 F.3d 610, 612 (8th Cir.
1992). This wrongful death products liability case was filed as a result of the occurrence. 1994), the Eighth Circuit discussed the concept. The court held that it did. The court is reminded that personal jurisdiction may arise without the defendant's ever stepping foot on the forum state's soil. . "The test for due process is whether there are sufficient `minimum contacts' between the nonresident defendant and the forum state so that the assertion of personal jurisdiction over the nonresident defendant is consistent with traditional notions of fair play and substantial justice." 1986) in which the court held that "[a] seller at the head of a distribution network thus satisfies the requisite foreseeability of due process where it `delivers its products into the stream of commerce with the expectation that [these products] will be purchased by consumers in the forum state.'". Plaintiffs have presented no evidence suggesting Boto has any input into the decision making process of its customers regarding the manner or places of distribution. Justice O'Connor noted that some courts had rejected this broad reading of World-Wide. For the reasons stated, the motion to dismiss will be granted by a separate order entered concurrently herewith. ." Instead, those courts have read World-Wide to require more of the defendant than mere knowledge of the product's entry into the forum state through the stream of commerce. Thus, they contend this case is closely akin to that presented in Barone and the court should deny the motion to dismiss. trees would be distributed to our stores in Arkansas and those trees sold by our stores in Arkansas thereby generat[e] revenue to Boto . 1965). The Bentonville, Arkansas, address was not an indication of the ultimate destination of the products manufactured by Boto. The focus of the inquiry is on the relationship "among the defendant, the forum, and the litigation." Boto did not contract to sell any goods or services to any citizens of Arkansas over the Internet site. See also Lesnick v. Hollingsworth Vose Co., 35 F.3d 939 (4th Cir. Sometimes the identifying labels are provided by the purchaser and placed on the product boxes by Boto. . . 1977). 1994) (absence of direct sales or shipments is not dispositive if it appears there is some other type of activity which shows purposeful availment). was aware that Boto'[s] . However, the court in assessing minimum contacts produced three opinions. By affidavit Chan Kit Fun states that Boto often sells products under a "private label" arrangement. By order entered on March 13, 1997, the court took the issue of Boto's amenability to suit under advisement and directed the parties to conduct expedited discovery on this issue. Thus, the court finds that the alleged Internet posting by or in behalf of Boto is simply an insufficient "contact" with Arkansas to support haling this Hong Kong business into the courts of Arkansas. . As we noted in our prior opinion, the stream of commerce theory of personal jurisdiction is merely a type of specific jurisdiction. See also Dakota Industries, Inc. v. Ever Best Ltd., 28 F.3d 910, 915 (8th Cir. 1996) the court considered the impact on the Internet in the context of analyzing the existence of personal jurisdiction over an individual who operated a business over the Internet. It asks the court to consider the following facts: (1) Boto is a foreign corporation doing business in Hong Kong; (2) it is not authorized to do business in Arkansas; (3) it has no United States customers with a principal place of business in Arkansas for the five years preceding this lawsuit; (4) all sales made to customers in the United States are sold on FOB (free on board) Hong Kong terms at the customer's direction and cost, Boto arranges for the products to be loaded on shipping liners in Hong Kong bound for a port of the customer's choosing; (5) Boto has no knowledge regarding the method or manner of any further transportation or distribution of the products made by its customers; (6) no employee, representative, or agent of Boto has ever set foot in Arkansas or negotiated any sales with corporations located in Arkansas; (7) all contact between Hobby Lobby and Boto has been in Oklahoma or between Hong Kong and Oklahoma; (8) Boto makes no effort to study the United States market but does receive requests for products and features in Hong Kong directly from its customers; and (9) it does not have a distribution system fifty percent of its sales in the United States are through direct channels, the remaining sales are through a third-party importer. The long-arm statute has been amended and now provides that "[t]he courts of this state shall have personal jurisdiction of all persons, and all causes of action or claims for relief, to the maximum extent permitted by the due process of law clause of the Fourteenth Amendment of the United States Constitution." Arkansas, Fayetteville Division, In Smith v. Hobby Lobby Stores, Inc., 968 F. Supp. 1994) (citation omitted). 1690, 1697, 56 L.Ed.2d 132 (1978) ( quoting Estin v. Estin, 334 U.S. 541, 545, 68 S.Ct. By memorandum opinion and order entered on February 28, 1997, the court granted Boto's motion to dismiss the third-party complaint filed by Hobby Lobby. 1994) (The nonmoving party need only make a prima facie showing of jurisdiction). in our home office in Oklahoma City"; (4) since Boto began soliciting Hobby Lobby's business, "there has been a map on display at our home office . The greys are dominant and even among them the shades are innumerable.'" Finally, Boto points out that plaintiffs have provided no evidence that any advertising done by Boto in the Hong Kong Enterprise magazine was directed at or designed to reach Arkansas or in fact has ever found its way to Arkansas. . Boto also offers the affidavit of its managing director, Michael Kao, who has for the past few years traveled to Hobby Lobby's headquarters in Oklahoma City, Oklahoma. Mike D. Beebe, A. Watson Bell, Lightle, Beebe, Raney Bell, Searcy, AR, Howard L. Slinkard, Rogers, AR, Brian Wood, Roy Lambert, Springdale, AR, for Woodrow W. Smith. Ark. She stated: In Barone v. Rich Bros. Interstate Display Fireworks, 25 F.3d 610 (8th Cir. Bell Paper Box, Inc. v. Trans Western Polymers, Inc., 53 F.3d 920, 921 (8th Cir. 1996) (citation omitted). 1982), citing, World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. The Arkansas long-arm statute formerly provided certain listed bases for personal jurisdiction. . 95 (1945). Bell Paper Box, Inc. v. U.S. After the filing of this lawsuit, Boto has received two purchase orders relating to Wal-Mart. Boto is a foreign corporation which does business in Hong Kong. A non-resident manufacturer is not subjected to the jurisdiction of each state in which its product ends up. The United States District Court for the Western District of Arkansas recently, Full title:Woodrow W. SMITH, Administrator of the Estate of Mary Elizabeth Smith, Court:United States District Court, W.D. 154, 90 L.Ed. Kilcrease v. Butler, 293 Ark. It noted: The Eighth Circuit went on to decide whether Giotis correctly stated the law in view of Asahi. The type of activity required to satisfy the Due Process Clause is simply lacking in this case. . See CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1994). 1026, 94 L.Ed.2d 92 (1987) discussed the stream of commerce theory. 1868, 1872 nn. With regard to the advertising on the "World Wide Web," Boto states the Internet address does not contain any advertising or listing for Boto. It held that: In Asahi it "appears that five justices agreed that continuous placement of a significant number of products in the stream of commerce with knowledge that the product would be distributed into the forum state represents sufficient minimum contacts to satisfy due process." Refresh your browser window to try again. "When personal jurisdiction is challenged, the plaintiff has the burden to show jurisdiction exists." Hobby Lobby is not a distributor of Boto's products; rather, Hobby Lobby is itself a retailer. which map has marks and tags which indicate the cities in which we have stores and which indicate the states these stores are in as well as circles around the cities and states in which we have stores;" (5) "Michael Kao has seen this map (which includes Arkansas) and we have discussed our continuing growing business . Kulko v. California Superior Ct., 436 U.S. 84, 92, 98 S.Ct. Plaintiffs have made no showing that Boto is involved in any manner in creating or maintaining this distribution system or even has any specific knowledge of Hobby Lobby's distribution system. Courts analyze a defendant's contacts with the State under "general" and "specific" jurisdictional inquiries., " 1997 WL 97097 at *10. Plaintiffs contend that Boto has significant connections with Arkansas. 454, 455, 739 S.W.2d 139 (1987) (citations omitted). In Justice O'Connor's opinion, she rejected that idea that the language in World-Wide Volkswagen might be read to allow jurisdiction over any manufacturer that is aware that its product may be sold in the forum state. Plaintiffs concede that the Eighth Circuit has consistently held that more than mere foreseeability is required to establish personal jurisdiction over a foreign defendant. 1356 (W.D.Ark. The issue is now ready for resolution. denied, 513 U.S. 1151, 115 S.Ct. The court's attention is also drawn to the fact that Kao testified that it was foreseeable that Boto's products could end up in any state in the United States. Radaszewski v. Telecom Corp., 981 F.2d 305, 309 (8th Cir. See also Asahi Metal Indus. Boto contends it is not subject to suit in Arkansas. For simplicity's sake the court will refer collectively to these parties as the plaintiffs. However for purposes of this motion, Boto assumes it manufactured the tree in question. These products in turn are distributed by Hobby Lobby to its retail outlets. The fire destroyed the Smith home and Mary Elizabeth died from injuries sustained during the fire. 1995); Barone v. Rich Bros. Interstate Display Fireworks Co., 25 F.3d 610, 612 (8th Cir. Hosoya had no agent for service in Nebraska, no office in Nebraska, and no distributor in Nebraska.
The Court of Appeals for the Eighth Circuit has determined that satisfaction of the due process standard may be measured by weighing the following factors: the nature and quality of defendant's contacts with the forum state; quantity of contacts; source and connection of the cause of action with those contacts; and, to a lesser degree, the interest of the forum state in providing a forum for its residents; and the convenience of the parties. Thus the sole question is whether the exercise of personal jurisdiction is consistent with the due process clause. The theory provides an "analytical tool useful in cases in which the defendant's contacts are the result of establishing a distribution network in the forum State for the sale of defendant's products. This was true because by that point in time Everstar had asserted claims against Boto and plaintiffs had sought leave to assert claims against Boto and Everstar. Kids, Inc., 22 F.3d 816, 819 (8th Cir. 8 9, 104 S.Ct. from the sale of these trees in Arkansas;" (10) he is "confident" that Michael Kao has known since 1985 the trees it sold Hobby Lobby were distributed among "all our stores including the stores we had in Arkansas;" (11) in 1995 Boto was aware that we had stores in nine states, all of which surround Arkansas; (12) in 1995 Hobby Lobby did $2.3 million worth of business with Boto and purchased 101,100 trees; (13) in 1996 Hobby Lobby did an estimated $3.0 million worth of business with Boto; (14) "[i]t is my information that Boto . CompuServe, 89 F.3d at 1268. Code Ann. Boto has no agent for service of process in Arkansas. Plaintiffs have shown no contact with the State of Arkansas other than the fact that Boto's customer, Hobby Lobby, and perhaps other Boto customers, distributed Boto's goods to its stores in Arkansas. Boto knows the port of destination and nothing more.
It purchases products, the court assumes, from any number of companies. . Courts have not abandoned the notion that jurisdiction must be premised on activity deliberately directed toward the forum state or on proof of purposeful availment of the privilege of doing business in the forum state. Barone sued the distributor of the fireworks, Rich Brothers, and the manufacturer, Hosoya Fireworks Co. of Tokyo, Japan. The complaint alleges Hobby Lobby is liable under various theories including negligence, breach of warranty, and strict liability. Ark. 16-4-101(B) (Supp.
Boto states it is unclear at this time whether or not it manufactured the tree in question. Subsequently, the court allowed Hobby Lobby to file an amended third-party complaint against Boto and Everstar also asserting claims against Boto. The courts have not abandoned the notion that jurisdiction must be premised on activity deliberately directed toward the forum state or on proof of purposeful availment of the privilege of doing business in the forum state. Boto contends that the mere fact that it manufactured the tree and distributed it to Hobby Lobby Stores, Inc., does not provide a sufficient basis for personal jurisdiction. 1994) (must have engaged in some activity purposefully directed toward the forum state), cert. Gary Jech, a buyer for Hobby Lobby, also saw the shipping boxes "stamped for destination labeled `Bentonville, Arkansas.'". . The Eighth Circuit stated that, if Giotis was the law, applying it to the facts of the case before it was quick work. The fireworks displays were intended for use by municipalities or organizations. 1119 (W.D.Pa. Seller assumes all responsibility for this listing. Viam Corp. v. Iowa Export-Import Trading Co., 84 F.3d 424, 427 (Fed. Kao states: (1) he has never visited the State of Arkansas and has had no dealings with any persons in Arkansas; (2) he was not aware that Hobby Lobby had any stores in Arkansas nor was he aware of the location of Arkansas in the United States until this lawsuit; (3) he recalls seeing a map of the United States in a corridor adjacent to a meeting room in Hobby Lobby's Oklahoma office; (4) the products sold to Hobby Lobby were placed on an ocean liner by Boto in Hong Kong destined at Hobby Lobby's cost and direction for a port in the United States; (5) he has no knowledge of how or where the products were distributed or sold by Hobby Lobby; (6) he has no knowledge of whether any products purchased by Hobby Lobby were resold in Arkansas; and (7) he has not discussed the method or manner of distribution of products purchased from Boto by Hobby Lobby with any representative of Hobby Lobby.
- Plastic Colored Clothespins
- All Saints Jewellery Sale
- Benefit Hoola Bronzer Large
- Sunny Bunnies Toys Walmart
- Eucerin Mineral Sunscreen Ingredients
- German Packaging Act 2022
- Used Gazebos For Sale On Ebay
- Doubletree By Hilton Missoula
- Outdoor Pillow Covers Only
- Planter With Privacy Screen
- Backlit Frame For Stained Glass
- Braided Ponytail Hairpiece
