trucks as required by work orders received exclusively from Ford. In
addition to listing the specific equipment intended for each truck, the
work order included the code, name, and address of the dealer who ordered
the truck from Ford and the name and address of the customer who ordered
the truck from the dealer. After modifying the truck as dictated by the
work order, Manning would bill Ford and return the truck to Ford's nearby
parking lot to await shipment. Ford would then deliver the truck to the
Manning did all of its business in Kentucky. It had no customers other
than Ford, and it received work orders exclusively and directly from
Ford. Manning did not advertise, produce product catalogs, or provide any
other product information to dealers or other purchasers of Ford trucks.
Manning never initiated contact with or directly delivered a vehicle to
any Ford dealer or customer. Many of the dealers and purchasers of trucks
built and sold by Ford and modified by Manning were Pennsylvania
residents, a fact made known to Manning only because Ford's work orders
included it, along with a lot of other information.
In this case, Ford contends that Manning purposefully placed its
products and services into the "stream of commerce" with the knowledge
that such products and services would reach Pennsylvania. Ford asserts
that this court may exercise either general or specific in personam
jurisdiction over Manning.
A federal district court may assert personal jurisdiction over a
nonresident defendant to the extent authorized by the law of that state
in which the action is brought, consistent with the demands of the
Constitution. See Provident Nat'l Bank v. California Fed. Sav. & Loan
Ass'n, 819 F.2d 434, 436 (3d Cir. 1987) (citing Fed.R.Civ.P. 4(e)).
Pennsylvania law permits courts to "exercise personal jurisdiction over
nonresidents to the constitutional limits of the due process clause of
the fourteenth amendment." Mellon Bank (East) PSFS, Nat'l Ass'n v.
Farino, 960 F.2d 1217, 1221 (3d Cir. 1992); 42 Pa. Cons.Stat. Ann. §
5322(b). Once a jurisdictional issue has been raised, the plaintiff
bears the burden of establishing with reasonable particularity contacts
sufficient to support the court's exercise of personal jurisdiction. See
Provident Nat'l Bank, 819 F.2d at 437.
Ford asserts that Manning is subject to this courts' general personal
jurisdiction. The exercise of general jurisdiction does not require that
"the subject matter of the cause of action ha[ve] any connection to the
forum." Farino, 960 F.2d at 1221. Rather, a court has general
jurisdiction over a nonresident corporation only if the corporation's
contacts with the forum are continuous, systematic, and substantial. See
Provident Nat'l Bank, 819 F.2d at 437; 42 Pa. Cons.Stat. Ann. §
5301(a)(2)(iii). The standard for general jurisdiction "is not an easy one
to meet." Surgical Laser Technologies v. C.R. Bard, Inc.,
921 F. Supp. 281, 284 (E.D.Pa. 1996). In fact, only a showing of
"significantly more than mere minimum contacts" will suffice.
See Provident Nat'l Bank, 819 F.2d at 437.
It is undisputed that Manning did not do business in Pennsylvania. It
had no customers, agents, distributors, offices, or employees in
Pennsylvania. It did not advertise here. It never had any business
contact or communication with residents of the Commonwealth. While many
of the trucks which Manning modified as a result of its business dealing
with Ford did end up in Pennsylvania, such contact cannot be said to have
been continuous or systematic. The evidence does not demonstrate that any
contacts with Pennsylvania were a substantial part of Manning's overall
business operations. In sum, Ford has not established that Manning had
the "extensive and pervasive" contacts with
Pennsylvania necessary for general personal jurisdiction. Reliance Steel
Prods. Co. v. Watson, Ess, Marshall, & Enggas, 675 F.2d 587, 589 (3d
Ford also contends that Manning is subject to specific personal
jurisdiction within Pennsylvania. "Specific personal jurisdiction exists
when the defendant has `purposefully directed his activities at residents
of the forum and the litigation results from alleged injuries that "arise
out of or related to" those activities.'" BP Chems. Ltd. v. Formosa
Chem. & Fibre Corp., 229 F.3d 254, 259 (3d Cir. 2000) (quoting Burger
King, 471 U.S. at 472, 105 S.Ct. 2174). For a court properly to exercise
specific jurisdiction under the Due Process Clause, the plaintiff must
satisfy a two-part test. See IMO Industries, Inc. v. Kiekert AG,
155 F.3d 254, 259 (3d Cir. 1998). First, the plaintiff must demonstrate
that the defendant had the constitutionally sufficient "minimum contacts"
with the forum. Id.; see Burger King, 471 U.S. at 474, 105 S.Ct. 2174.
Second, the court, in its discretion, must determine that the exercise of
specific jurisdiction is consistent with "traditional notions of fair play
and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310,
316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); see Kiekert AG, 155 F.3d at 259.
A defendant may be said to have established "minimum contacts" if there
is "some act by which the defendant purposefully avails itself of the
privilege of conducting activities within the forum State," thus ensuring
that "a defendant will not be haled into a jurisdiction solely as a
result of `random,' `fortuitous,' or `attenuated' contacts." Burger
King, 471 U.S. at 475, 105 S.Ct. 2174 (quoting Hanson v. Denckla,
357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790
(1984); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299, 100
S.Ct. 559, 62 L.Ed.2d 490 (1980)). "[W]ith regard to producers or sellers
of goods, `the mere foreseeability that a product one sells may end up in
the forum state' does not render the seller amenable to suit in the forum
state." Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 203
(3d Cir. 1998) (quoting Renner v. Lanard Toys Ltd., 33 F.3d 277, 279 (3d
Cir. 1994)); see Woodson, 444 U.S. at 291, 295-96, 100 S.Ct. 559.
Ford seeks to base the exercise of specific jurisdiction on a "stream
of commerce" theory. Such a theory provides for jurisdiction "over a
nonresident defendant which injected its goods, albeit indirectly, into
the forum state and either `derived [a] substantial benefit from the
forum state or had a reasonable expectation of [deriving a substantial
benefit from it].'" Id. at 203 (quoting Max Daetwyler Corp. v. R. Meyer,
762 F.2d 290, 300 (3d Cir. 1985)).
The Supreme Court specifically addressed the stream-of-commerce
jurisdiction theory in Asahi Metal Industry Company v. Superior Court of
California, Solano County, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92
(1987). In that case, Asahi Metal, a Japanese corporation, sold tire
valve assemblies to a tire manufacturer in Taiwan. Eventually, tires with
Asahi Metal's valves found their way into California where an alleged
tire defect caused an accident. The accident victim sued the Taiwanese
tire manufacturer in California state court, and the manufacturer
impleaded Asahi Metal. The latter challenged the court's jurisdiction.
Despite the fact that Asahi Metal did no business in California and had
no control over the distribution system that brought its products into
the forum state, the California Supreme Court upheld jurisdiction on the
ground that Asahi Metal knew that its valve assemblies would be put in
tires sold in California and benefitted indirectiy from those sales.
The Supreme Court reversed. Its attempt to define the elements required
specific jurisdiction under a stream-of-commerce theory, however, failed
to produce a majority opinion. Writing for a plurality of four,*fn2
Justice O'Connor stated that "[t]he placement of a product into the
stream of commerce, without more, is not an act of the defendant
purposefully directed toward the forum State." Asahi Metal, 480 U.S. at
112, 107 S.Ct. 1026. Rather, some "additional conduct" indicating the
defendant's "intent or purpose to serve the market in the forum State" is
necessary before personal jurisdiction may be exercised. Id. Such
additional conduct may include "designing the product for the [forum
State's] market. . . ., advertising in the forum State, establishing
channels for providing regular advice to customers in the forum State, or
marketing the product through a distributor who has agreed to serve as
the sales agent in the forum State." Id. While not conclusively limiting
"additional conduct" to the examples provided, Justice O'Connor clearly
excluded "a defendant's awareness that the stream of commerce may or will
sweep the product into the forum State." Id. Such knowledge simply "does
not convert the mere act of placing the product into the stream into an
act purposefully directed toward the forum State." Id.
Justice Brennan, also writing for four justices,*fn3 disagreed with
Justice O'Connor's "stream of commerce plus" theory. Vermeulen v.
Renault, U.S.A., Inc., 985 F.2d 1534, 1548 (11th Cir. 1993). He concluded
that "jurisdiction premised on the placement of a product into the stream
of commerce is consistent with the Due Process Clause, and [does not
require] a showing of additional conduct." Id. at 117, 107 S.Ct. 1026
(Brennan, J., concurring in part and concurring in the judgment). In
contrast to Justice O'Connor's view, Justice Brennan stated that as long
as a defendant "is aware that [its] final product is being marketed in
the forum State," minimum contacts have been established. Id.
Justice Stevens, joined by Justices White and Blackmun,*fn4 believed
that the constitutional determination of minimum contacts cannot assume
an "unwavering line . . . between `mere awareness' that a component will
find its way into the forum State and `purposeful availment' of the
forum's market." Id. at 122, 107 S.Ct. 1026 (Stevens, J., concurring in
part and concurring in the judgment). Rather, an evaluation of "the
volume, the value, and the hazardous character" of the defendant's
product is necessary to decide purposeful availment. Id.
Pennzoil Products Company v. Colelli & Associates, Inc., 149 F.3d 197
(3d Cir. 1998) is the most recent opinion of the Court of Appeals for the
Third Circuit concerning the stream-of-commerce theory and the differing
opinions of Asahi Metal. Colelli was an Ohio corporation which
manufactured solvents used by oil producers to reduce the buildup of wax
in the shafts of their oil wells. Colelli never sold its product to any
Pennsylvania resident, but much of the oil produced by Colelli's
customers was delivered to Pennzoil's refinery in western Pennsylvania.
In a lawsuit in Pennsylvania federal court, Pennzoil alleged that
Colelli's solvent contained chemicals which damaged its refinery. Colelli
moved to dismiss the suit for lack of personal jurisdiction.
In addressing the applicability of the stream-of-commerce theory, the
Court of Appeals declined to chose among any of the Asahi Metal
standards. It found it unnecessary to do so because the requirements for
the exercise of personal jurisdiction of all three tests were met. Id. at
206-7, 207 n. 12. Four facts influenced this
determination. First, approximately sixty percent of the oil produced by
Colelli's customers found its way into the Pennsylvania market. Second,
Colelli knew that much of this oil was going specifically to Pennzoil's
refinery. Third, "Colelli sent samples of [its] solvents to laboratory
personnel at Pennzoil's refinery to preclude future contamination
problems." Id., 149 F.3d at 206. Finally, Colelli had numerous telephone
conversations with Pennzoil's lab in order to discuss testing procedures
and methodology. Id. The court concluded that these acts, taken
together, satisfied "Justice O'Connor's touchstone of additional conduct"
and "even more clearly satisfied" Justice Brennan's standard. Id., 149
F.3d at 207. It also noted `that Colelli even had minimum contacts under
Justice Stevens'" understanding of the stream-of-commerce theory. Id.,
149 F.3d at 207 n. 12.
Under the test enunciated by Justice O'Connor in Asahi Metal, we do not
believe that this court can exercise personal jurisdiction over Manning.
Like Colelli, Manning never directly sold its products or services in
Pennsylvania. As noted above, Manning had no customers other than Ford
and had no other business contacts with Pennsylvania. Unlike Colelli,
however, Manning's activity failed to meet any of the examples of
"additional conduct." Asahi Metal, 480 U.S. at 112, 107 S.Ct. 1026.
First, Manning did not design products for the Pennsylvania market. See
id.; Colelli, 149 F.3d at 206. It adhered instead to Ford's design for
each truck as detailed in the work order. Manning also did not advertise
its products or services in the Commonwealth. See Asahi Metal, 480 U.S.
at 112, 107 S.Ct. 1026. Manning neither established channels to provide
regular advice or product information to Pennsylvania consumers nor
marketed its products through a Pennsylvania distributor or sales agent.
See id.; Colelli, 149 F.3d at 206. Instead, Manning's entire and
exclusive business relationship was with Ford and its Kentucky
manufacturing plant. The products provided and services performed by
Manning were ordered by Ford, delivered to Ford, and paid for by Ford in
Kentucky. Ford's business relationships and commercial transactions, not
Manning's, dictated where and to whom modified Ford trucks would be
Ford acknowledges that its Kentucky plant was Manning's only customer
and that Manning never directly did business in Pennsylvania. It also
concedes that "mere foreseeability" that a product might travel to the
forum state is insufficient to establish minimum contacts with that
state. Colelli, 149 F.3d at 203; see Asahi Metal, 480 U.S. at 112, 107
S.Ct. 1026; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 296,
100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Ford contends, however, that it was
more than foreseeable that the trucks modified by Manning would finds its
way into the Commonwealth. In point of fact, Manning knew — months
before hand — that Pennsylvania was the intended final destination
of hundreds of trucks because the work orders indicated as much.
According to Ford, this confirmed expectation must be distinguished from
the mere foreseeability that the courts have rejected.
The distinction pressed by Ford between knowledge and foreseeability is
unavailing. "[A] defendant's awareness that the stream of commerce . . .
will sweep the product into the forum State does not convert the mere act
of placing the product into the stream" into minimum contacts acceptable
under the Due Process Clause. Asahi Metal, 480 U.S. at 112, 107 S.Ct.
1026 (O'Connor, J., plurality opinion). Manning's knowledge that Ford had
sold trucks to Pennsylvania residents does not demonstrate that Manning
"purposefully avail[ed] itself of the privilege of conducting activities
within" Pennsylvania. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct.
1228, 2 L.Ed.2d 1283 (1958). In fact, the knowledge possessed by Manning
upon which Ford now relies resulted from
Ford's unilateral decision to include dealer and customer information in
its work orders. See Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408, 417, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). The information
was completely unnecessary for Manning to fulfill its contractual
obligations to Ford. Furthermore, because the final destination of the
modified trucks was decided by Ford and its customers long before Manning
became involved in the process, Manning lacked any ability "to structure
[its] primary conduct with some minimum assurance as to where that
conduct [would and would not] render [it] liable to suit." Woodson, 444
U.S. at 297, 100 S.Ct. 559. Finally, awareness of the final delivery
point of a truck did not in any way indicate Manning's "intent or purpose
to serve the market of the forum State." Asahi Metal, 480 U.S. at 112,
107 S.Ct. 1026 (O'Connor, J., plurality opinion) (emphasis added).
Whatever contacts Manning may have had with Pennsylvania were "random,
fortuitous, or attenuated." Burger King Corp. v. Rudzewicz, 471 U.S. 462,
475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (internal quotes omitted).
Ford has simply failed to show that Manning maintained the
constitutionally minimum contacts required by Justice O'Connor's
stream-of-commerce analysis to permit a exercise of personal jurisdiction
We acknowledge that the facts of this case might lead to a different
result under the much broader stream-of-commerce standards enunciated by
Justice Brennan or Justice Stevens in Asahi Metal. However, we believe
that their approaches would render "`foreseeability' alone . . . a
sufficient benchmark for personal jurisdiction under the Due Process
Clause." Woodson, 444 U.S. at 295, 100 S.Ct. 559. While modern advances
and trends in technology have "substantially relaxed" the barriers
imposed on state jurisdiction, the Supreme Court has "never accepted the
proposition that state lines are irrelevant for jurisdictional purposes."
Id. at 293, 100 S.Ct. 559; see Denckia, 357 U.S. at 250-251, 78 S.Ct.
1228; McGee v. Int'l Life Ins Co., 355 U.S. 220, 222-23, 78 S.Ct. 199, 2
L.Ed.2d 223 (1957). The opinions of Justices Brennan and Stevens too
closely approximate that very proposition. We believe that Justice
O'Connor's stream-of-commerce analysis is the best-reasoned of the three
opinions and the one which is likely to be adopted by the current Supreme
Subjecting Manning to this court's personal jurisdiction would also
offend "traditional notions of fair play and substantial justice." Int'l
Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95
(1945). First, the burden on Manning would be significant. See Asahi
Metal, 480 U.S. at 113, 107 S.Ct. 1026; Woodson, 444 U.S. at 292, 100
S.Ct. 559. The record in this case establishes that Manning was a company
whose corporate activity was limited to the area of Louisville,
Kentucky. Second, we are unconvinced that Pennsylvania has an articulable
interest in adjudicating the dispute between Ford and Manning. See id.
These two parties entered into their contractual relationship outside of
the Commonwealth. While Ford contends that Pennsylvania law would apply
to its claims, that has yet to be determined. We see no advantage to
having a court in this forum apply what may be the laws of other states
to a dispute between these corporations. In sum, Manning's contacts with
Pennsylvania are so fortuitous and incidental that an exercise of
personal jurisdiction would be unreasonable and unfair.
Accordingly, we will grant the motion of Manning Enterprises, Inc. and
Manning Truck Modification, Inc. to dismiss Ford's complaint for lack of