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The court is reminded that personal jurisdiction may arise without the defendant's ever stepping foot on the forum state's soil. In opposition, the parties asserting that jurisdiction over Boto exists, Hobby Lobby (third-party plaintiff), Everstar (cross-claimant), Woodrow Smith, Administrator of the Estate of Mary Elizabeth Smith (plaintiff), and State Farm Fire Casualty Company (plaintiff), inform the court that the gross amount of Boto manufactured products sold in the United States (in Hong Kong dollars) was $187 million for the year ending March 31, 1993, $171 million for the year ending March 31, 1994, $241 million for the year ending March 31, 1995, $328 million for the year ending March 31, 1996, and $415 million for the year ending March 31, 1997. The fireworks displays were intended for use by municipalities or organizations. Boto contends it is not subject to suit in Arkansas. Boto did not contract to sell any goods or services to any citizens of Arkansas over the Internet site. 1994) (absence of direct sales or shipments is not dispositive if it appears there is some other type of activity which shows purposeful availment). Thus, they contend this case is closely akin to that presented in Barone and the court should deny the motion to dismiss. 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. It is argued that it is indisputable that Boto knew or should have known that its products were being sold in Arkansas. 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 . Boto argues that sales to direct customers, even if the direct customers are nationwide retailers, are not the same as utilizing a distribution system. Barone sued the distributor of the fireworks, Rich Brothers, and the manufacturer, Hosoya Fireworks Co. of Tokyo, Japan. lobby 1868, 1872 nn. In Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp.

lobby . Bell Paper Box, Inc. v. Trans Western Polymers, Inc., 53 F.3d 920, 921 (8th Cir. 1213, 1216, 92 L.Ed. The court conducted a review of the cases and other materials and stated that this review: In this case, at the most, Boto's advertisement in a trade publication appears on the Internet. However, Boto has only dealt with Pacific Resources. hobbylobby "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." The orders came from Pacific Resources Export, Limited, a Hong Kong company. 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 . . As the Supreme Court has stated on more than one occasion, the determination of whether minimum contacts exist "is one in which few answers will be written `in black and white. . 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." Those nine distributors purchased between $250,000 and $1,000,000 in fireworks annually. However for purposes of this motion, Boto assumes it manufactured the tree in question. allthatglitters810 1119 (W.D.Pa. 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. 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. About sixteen percent of the fireworks purchased were eventually resold into Nebraska. bear covers lobby hobby switch light outlet decor Arkansas, Fayetteville Division. We found that Hobby Lobby had advanced no facts tending to show that this court had personal jurisdiction over Boto. as we have continued to grow by adding stores in other states (geographically surrounding Arkansas) as well as additional stores in the state of Arkansas;" (6) in January, 1995, Hobby Lobby purchased 7.5 foot non-flocked green artificial Christmas trees from Boto which were distributed to all ten stores in Arkansas; (7) the only 7.5 foot non-flocked Christmas trees that Hobby Lobby purchased in 1993 through 1995 were from Boto; (8) the only Christmas trees distributed to Hobby Lobby stores were purchased direct from Boto out of their Hong Kong office, shipped by ocean liner to California, transported to a warehouse in Dallas, and then transferred to a warehouse in Oklahoma City where they were distributed; (9) he is "confident that Michael Kao of Boto . Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 654 (8th Cir. .

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 . switch plate light cowboy double cabin log boots covers decor rustic lodge lobby hobby hobbylobby western

Hobby Lobby seeks indemnity from Boto as a manufacturer pursuant to Ark. . The district court granted the motion and the Eighth Circuit reversed. . 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. Kulko v. California Superior Ct., 436 U.S. 84, 92, 98 S.Ct. Justice O'Connor noted that some courts had rejected this broad reading of World-Wide. 1982), citing, World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. denied, 513 U.S. 1151, 115 S.Ct. Gary Jech, a buyer for Hobby Lobby, also saw the shipping boxes "stamped for destination labeled `Bentonville, Arkansas.'". "When personal jurisdiction is challenged, the plaintiff has the burden to show jurisdiction exists." These products in turn are distributed by Hobby Lobby to its retail outlets. 1994), cert.

By affidavit Chan Kit Fun states that Boto often sells products under a "private label" arrangement. 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." Boto is a foreign corporation which does business in Hong Kong. 1690, 1697, 56 L.Ed.2d 132 (1978) ( quoting Estin v. Estin, 334 U.S. 541, 545, 68 S.Ct. laser cut metal switch lobby hobby plate plates single The complaint alleges that on December 12, 1995, Woodrow and Mary Elizabeth Smith purchased a seven and one-half foot artificial Christmas tree and three 100-bulb strands of electric Christmas lights from Hobby Lobby Store No.

The Arkansas long-arm statute formerly provided certain listed bases for personal jurisdiction. The Eighth Circuit cited Giotis v. Apollo of the Ozarks, Inc., 800 F.2d 660 (7th Cir. It noted: The Eighth Circuit went on to decide whether Giotis correctly stated the law in view of Asahi. For the reasons stated, the motion to dismiss will be granted by a separate order entered concurrently herewith. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 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. CompuServe, 89 F.3d at 1268. cabin 16-4-101 (Repl. 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. "[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." United States District Court, W.D. The third-party complaint alleges that Boto was the manufacturer and supplier of the artificial Christmas tree. 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. 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. 1103, 130 L.Ed.2d 1070 (1995); Renner v. Lanard Toys, Ltd., 33 F.3d 277 (3d Cir. 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. 1994). 8 9, 104 S.Ct.

1965). Boto contends the court lacks personal jurisdiction over it. Kids, Inc., 22 F.3d 816, 819 (8th Cir. Plaintiffs contend that Boto has significant connections with Arkansas. Hosoya moved to dismiss for lack of personal jurisdiction. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. Code Ann. Neither the Eighth Circuit in Barone nor the Supreme Court in Asahi has given the stream of commerce theory the breadth suggested by plaintiffs. 154, 90 L.Ed. The greys are dominant and even among them the shades are innumerable.'" It is alleged that the fire began in the vicinity of the artificial Christmas tree. The focus of the inquiry is on the relationship "among the defendant, the forum, and the litigation." This wrongful death products liability case was filed as a result of the occurrence. Something went wrong. ., 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. 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. Aaron Ferer Sons Co. v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir. See also Asahi Metal Indus. 559, 62 L.Ed.2d 490 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 16-4-101(B) (Supp. Make your practice more effective and efficient with Casetexts legal research suite. There must be some showing that the manufacturer purposefully availed itself of the privilege of doing business in the forum state or in some manner directed its activities at the forum state. . 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. The court concluded the only "fair thing" to do was to allow Hobby Lobby to attempt once again to assert a claim against Boto. 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. Mr. Kao travels to the United States once a year for both personal and business reasons. She stated: In Barone v. Rich Bros. Interstate Display Fireworks, 25 F.3d 610 (8th Cir. Barone v. Rich Bros. Interstate Display Fireworks Co., 25 F.3d 610, 612 (8th Cir. 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 court agrees. Boto knows the port of destination and nothing more. See also Dakota Industries, Inc. v. Ever Best Ltd., 28 F.3d 910, 915 (8th Cir. 1994) (must have engaged in some activity purposefully directed toward the forum state), cert. 1994). As we noted in our prior opinion, the stream of commerce theory of personal jurisdiction is merely a type of specific jurisdiction. 1995); Barone v. Rich Bros. Interstate Display Fireworks Co., 25 F.3d 610, 612 (8th Cir. ." 1994), the Eighth Circuit discussed the concept. Unlike the situation in Barone, supra, Boto did not purposefully set up a network of distributors designed to blanket the country or a particular region of the country. Boto simply sells the goods to the customer and arranges at the customer's expense for shipping from Hong Kong. hobbylobby 1561 (1948)). The labels on the boxes which referred to Bentonville, Arkansas, are "private labels" which were furnished to Boto by Pacific Resources Export Limited. Boto has no agent for service of process in Arkansas. Rich Brothers sold fireworks displays through its six regional salesmen and through a catalog by mail. Hobby Lobby sought and was granted leave to file a third-party complaint against Boto and Everstar Merchandise Co., Ltd. Bell Paper Box, Inc. v. U.S. See also Lesnick v. Hollingsworth Vose Co., 35 F.3d 939 (4th Cir. Cir. 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. hobbylobby lobby For simplicity's sake the court will refer collectively to these parties as the plaintiffs. plate 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. cave hobbylobby ." 1026, 94 L.Ed.2d 92 (1987). . 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. Kendall B. Jones, Fort Smith, AR, for Hobby Lobby. It purchases products, the court assumes, from any number of companies. 1992). Courts analyze a defendant's contacts with the State under "general" and "specific" jurisdictional inquiries., " 1997 WL 97097 at *10. 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. 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. Co. v. Superior Court of Calif., 480 U.S. 102, 107 S.Ct. 1103, 130 L.Ed.2d 1070 (1995); Renner v. Lanard Toys, Ltd., 33 F.3d 277 (3d Cir. 2569, 2580, 53 L.Ed.2d 683 (1977). Radaszewski v. Telecom Corp., 981 F.2d 305, 309 (8th Cir. Hobby Lobby is not a distributor of Boto's products; rather, Hobby Lobby is itself a retailer. With regard to the alleged sales to Wal-Mart, Boto points out it dealt only with Pacific Resources Export Limited. . One of the six salesmen was located in Nebraska. Hosoya sold products throughout the United States by utilizing nine distributors in six states. Aftanase v. Economy Baler Co., 343 F.2d 187 (8th Cir. switch plates rust plate iron cast double lobby hobby 1977). It did not advertise in Nebraska or directly send any products in Nebraska. 1996). The complaint alleges Hobby Lobby is liable under various theories including negligence, breach of warranty, and strict liability. switch lobby hobby covers plate horseshoe iron cast light . "While the facts adduced in a Rule 12(b)(2) Motion to Dismiss for lack of personal jurisdiction must be viewed in the light most favorable to the party opposing the motion, there must nonetheless be some evidence upon which a prima facie showing of jurisdiction may be found to exist, thereby casting the burden upon the moving party to demonstrate a lack of personal jurisdiction." was aware that Boto'[s] . See CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. . With regard to the advertising on the "World Wide Web," Boto states the Internet address does not contain any advertising or listing for Boto. This company apparently has authority to purchase products for Wal-Mart.

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