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REVERSE VENDING ASSOCS. v. TOMRA SYS. US

March 10, 1987

Reverse Vending Associates
v.
Tomra Systems US, INc. and A/S Tomra Systems



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 Plaintiff Reverse Vending Associates brings this diversity action against defendants A/S Tomra Systems and Tomra United States, Inc. Presently before this Court is defendant A/S Tomra Systems' motion to dismiss pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure on the ground that this Court lacks personal jurisdiction over it. Defendant's motion will be granted.

 A/S Tomra Systems ("Tomra Norway") is a corporation organized and existing under the laws of Norway with its principal place of business in Asker, Norway. Tomra Norway manufactures at its European facilities reverse vending machines which are capable of receiving used aluminum cans for recycling as aluminum scrap. Tomra Norway has never manufactured or sold reverse vending machines in the United States. It has never sought nor obtained a certificate of authority, or other license, to transact business in Pennsylvania, or in any other state of the United States. Nor has it ever maintained any place of business, salesman or employee at any location in the United States. It has never maintained a telephone listing in any Pennsylvania directory. It has no property, and maintains no bank accounts or other assets, in Pennsylvania. Also, it has never paid any type of taxes to Pennsylvania, and has never appointed any entity in Pennsylvania to act as its agent for service of process.

 Tomra Norway is the parent corporation of its wholly owned subsidiary Tomra United States, Inc. ("Tomra U.S."). Tomra U.S. is a Georgia corporation with its principal place of business in Atlanta. Established in 1983, Tomra U.S. is the sole distributor of its parent's product in the United States. Tomra U.S. solicits from its customers in this country orders for the purchase of reverse vending machines. It purchases the components for the machines at arm's length prices from its parent. It then assembles and sells the machines in the United States, and also services the machines. Tomra U.S. has never been given any license from its parent. Furthermore, Tomra U.S. has a different board of directors and different officers than Tomra Norway. Each board keeps complete and distinct minutes of their meetings.

 Plaintiff Reverse Vending Associates ("RVA"), a Pennsylvania limited partnership, entered into two contracts with Tomra U.S. Tomra Norway's role in these transactions pivots upon its unconditional guaranty of full and punctual performance by its subsidiary. Tomra Norway's President executed the guaranty in Norway.

 Under Pennsylvania's long-arm statute, 42 Pa.Cons.Stat. Ann. § 5301, et seq. (Purdon's 1981 and Supp. 1986), there are two bases by which a non-resident defendant may become subject to the jurisdiction of this Court. The first, "general jurisdiction", exists when a non-resident defendant is carrying on "a continuous and systematic part of its general business within [the] Commonwealth." 42 Pa.Cons.Stat.Ann. § 5301. The second, "specific" or forum related jurisdiction, exists when a non-resident defendant does any of the acts specifically set forth in the statute, limited to causes of action arising out of or related to the defendant's forum related activities. 42 Pa.Cons.Stat.Ann. § 5322. Furthermore, under Pennsylvania's long-arm statute, a court may exercise specific jurisdiction over a person to the fullest extent allowed under the Constitution of the United States, and may base its jurisdiction on the most minimum contact with Pennsylvania allowed under the Constitution. 42 Pa.Cons.Stat.Ann. § 5322(b). Thus, the reach of the Pennsylvania long-arm statute is coextensive with the due process clause of the Constitution. Dollar Savings Bank v. First Security Bank of Utah, 746 F.2d 208, 211 (3d Cir. 1984).

 When a defendant challenges a court's in personam jurisdiction, the plaintiff bears the burden of proving that the defendant's contacts with the forum are sufficient. Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984) (citing Compagnie des Bauxites de Guinee v. L'Union, 723 F.2d 357 (3d Cir. 1983)). The plaintiff must come forward with sufficient jurisdictional facts either through sworn affidavits, answers to interrogatories, depositions or other competent evidence to establish the court's jurisdiction over the defendant. Time Share, 735 F.2d, at 66-7 n.9.

 Plaintiff has failed to establish the "continuous and systematic" contacts necessary for this Court to exercise general personal jurisdiction over defendant Tomra Norway. Plaintiff has offered no evidence that Tomra Norway carried on any of its business in Pennsylvania. The record reveals that Tomra Norway has never maintained any place of business, salesman or employee in Pennsylvania. It has never maintained a telephone listing in any Pennsylvania telephone directory, and it has no property, bank accounts or other assets in Pennsylvania. It has never manufactured or sold its product in Pennsylvania. In short, there is no evidence that Tomra Norway has any tie to Pennsylvania which might be considered relevant to the general personal jurisdiction of this forum.

 Our next inquiry is whether plaintiff has established sufficient facts to support this Court's exercise of specific in personam jurisdiction over Tomra Norway. Plaintiff's evidence seeks to establish the minimal requirements of the federal due process standard as incorporated in the Pennsylvania long-arm statute. Thus, we need only inquire whether the evidence of in personam jurisdiction over Tomra Norway comports with the due process requirements of the Constitution. Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 489-90 (3d Cir. 1985); Mantua Oil, Inc. v. C.J. Marketing Company, 621 F. Supp. 1194, 1196 (E.D. Pa. 1985).

 The due process clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful "contacts, ties or relations." Burger King Corporation v. Rudzewicz, 471 U.S. 462, , 105 S. Ct. 2174, 2181, 85 L. Ed. 2d 528 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S. Ct. 154, 160, 90 L. Ed. 95 (1945)). This due process protection requires that individuals have "fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign," Burger King, 105 S. Ct. at 2182 (quoting Shaffer v. Heitner, 433 U.S. 186, 218, 97 S. Ct. 2569, 2587, 53 L. Ed. 2d 683 (1977)), and thus "gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit," Burger King, 105 S. Ct. at 2182 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490 (1980)).

 The constitutional touchstone remains whether the defendant purposefully established "minimum contacts" in the forum state. Burger King, 105 S. Ct. at 2183 (quoting International Shoe, 326 U.S. at 316, 66 S. Ct. at 158). In interpreting this constitutional standard, the Supreme Court has determined that, where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, the defendant must have purposefully availed itself of the privilege of acting within the forum state. World-Wide Volkswagen, 444 U.S. at 295, 100 S. Ct. at 566; Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1239, 2 L. Ed. 2d 1283 (1958).

 In an attempt to satisfy the constitutional minimum contacts requirement, plaintiff submitted a copy of the contract between RVA and Tomra U.S and an affidavit from RVA's General Partner, Mr. McCain. However, the bulk of plaintiff's averments consists merely of a recitation of unilateral activity on its part which is insufficient to establish minimum contacts. As the Supreme Court has noted:

 
The unilateral activity of those who claim some relationship with a non-resident defendant cannot satisfy the requirement of contact with the forum state . . . it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities ...

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