May 3, 2012

JEFFREY WILLEMSEN v. INVACARE CORPORATION

S059201

January 12, 2012 03:29 PM

IN TI-IE SUPREME COTIRT OF THE STATE OF OREGON

JEFFREY WILLEMSEN, as Personal Representative of the Estate of KARLENE J. IVILLEMSEN and JAMES WILLEMSEN,

Supreme Court No. sc s059201

Plaintif - Adverse Parties,

V

Multnomah County Circuit Court No. 0902-01653

INVACARE CORPORATION, a foreign corporation; UI{ITED SEATING & MOBILITY, LLC, a foreign limited liability company; CHINA TERMINAL & ELECTRIC CORP., a foreign corporation;
CTE TECH CORP., a foreign corporation; MOTION CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS & SEYMOIIR, INC., a fbreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, INC., flIWA Siemens Energy and Automation, Inc., a foreign corporation; STIMMERS GROUP, fNC., dba REXEL, a foreign corporation; and GAV/ ELECTRIC, INC., an Oregon corporation, l)efendants,
and

CORP., a foreign corporation; and CTE TECH CORP.. foregn corporation, Defendats-Relators.

CHINA TERMINAL 8. ELECTRIC

RELATOR'S OPENING BRIEF AND SUPPLEMENTAL EXCERPT OF RECORI)

Mary-Anne Rayburn, OSB No. 803680 Jonathan M. Hoffman, OSB No. 754180 Joan L. Volpert, OSB No. 803942 Martin Bischoff Templeton Langslet & Hoffman LLP 888 S.W. Fifth Ave., Ste. 900 Portland, OR 97204 Telephone: 503-224-3113 E-Mail: n bischoff, colT mravburn
j

Jeffrey A. Bowersox, OSB No. 814422 Bowersox Law Firm PC 5385 Meadows Road, Ste. 320 Lake Oswego, OR 97035 Telephone: 503-452-5858 E-Mail : j effrey@blfpc.com

Kathryn H. Clarke, OSB No. 791890

P.O. Box 11960 Portland, OR 97211 Telephone: 503-460-2870 arke E-Mail: Attorneys r Plantffi -Adv ers e Parties

ho

ffman @ martinbi s cho ff. c om

ivol

ff.com
s - Re I at

At t orn ey s for D efendant

or s

Richard C. Pearce, OSB No.762842

Attorney atLaw 1618 S.W. First Ave., #240

Portland, OR 97201 Telephone: 503-223-2966 E-Mail: rcn(,hevanet,com
C o - C ouns el

intffi -Adv ers e

Partes Walter H. Sweek, OSB No. 620920 Cosgrave Vergeer Kester LLP 888 S.W. Fifth, Ste. 500 Portland, OR 97204 Telephone: 503-323-9000 E-Mail: wsweek@cvk-law,com Attorney for Invac qre Corportion, Motion Concepts, Inc. and Perpetual Motion Enterprses

(Continued on next page)

TABLE OF CONTENTS
Page

I.

STATEMENT OF TFIE CASE

A.
B.
C.

Nature of the Action and the Relief Sought Nature of the Judgment Sought to be Reviewed .... Statutory Basis of Appellate Jurisdiction Date of Entry of the Order Denying the Motion to Dismiss and Further Information Relevant to Appellate Jurisdiction ...
Questions Presented on Appeal

I
2

D.

J
a

E.
F.

Summary of Argument ..
Statement of Facts ....

4
5

II

ASSIGNMENT OF ERROR
The trial court erred in: (1) denying CTE's motion to dismiss; and (2) not vacating its order denying CTE's motion to dismiss and granting CTE's motion to dismiss in accordance with this court's order allowing the petition for alternative writ of mandamus.

A. B.

Preservation of Error
Standard of Review

9 9 9

III.

ARGUMENT

A. B.

Personal Jurisdiction Before the Nics/ro Decrsrorr Personal Jurisdiction After the Nicstro Decision
....
.

9
11

11

D:

111

OFA
Page(s)

Cnsns Asahi Metal Industry Co., Ltd. v. Superor Court of Calirnia, 480 US ro2 (re87)
passlm

Burger King v. Rudzewicz, 471 US 462.........

t9
r7

International Shoe Co. v. |/ashington,

326 US 310

(194s)..

J. Mclntyre Mqchinery, Ltd. v. l{icastro, 201 NJ 48,987 Azd575 (2010), rev'd 564 LEd2d 76s (2ott)

US

, 131 SCt 2780, 180

23

J. MctrnQre Machinery, Ltd. v. Nicastro, 131 SCt 2780, 180 L8d2d765 (201 1). 564 US _, Keeton v. Hustler Magazine, Inc., 465 US 770 (t984)

passlm

t9
11

Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F3d 560 (2d Cir 1996) (Walker, J., dissenting) ....
Ram Technical Services, Inc. v. Koresko, 240 Or\pp 620,247 P3d I25l (2011)..........
State ex rel, Hydraulic Servocontrols Corp. v. Dale, 294 Or 381,657 P2d211

..'..'. 9

(1982)........

.7,12,24,25
J

State ex rel Redden v. Van Hoomisen, 281 Or 647,576P2d355,rev den,282Or 415 (1978).....

World-Wide Volkswagen Corp. v. Woodson, 444U5 286 (1980). . .......

4,r4, 16,25

Srarurns
oRS 34.124 ..
2

rv

11

I.

STATEMENT OF THE CASE

A.

Nature of the Action and the Relief Sousht

Plaintif' decedent, Karlene

'Willemsen,

sustained a fatal injury in a fire in her

bedroom in Portland, Oregon (ER-l1). Plaintiffs Jeffrey and James'Willemsen

filed a civil action for wrongful death and property damages (ER-1 to ER-17).

Plaintif sued 11 defendants, including those allegedly involved in the design,

manufacture, marketing, sale, or service of the motorized wheelchair, the motorized hospital bed, and various electrical components and accessories located

in the bedroom where the fire allegedly originated (ER-1 to ER-l0).

This mandamus proceeding arises from the trial court's denial of a motion to dismiss for lack of personal jurisdiction f,rled by defendants/relators CTE Tech

Cotp. and China Terminal & Electric Corp. (hereinafter "CTE"),l a Taiwanese
corporation, that manufactured the battery andlor battery charger that was a compohent of the decedent's wheelchair (ER-2).

B.

Nature of the Judement Sousht to be Reviewed

The order sought to be reviewed is the order denying CTE's motion to

dismiss. After the trial court entered its order denying CTE's motion to dismiss (ER-204), CTE petitioned this court for an alternative writ of mandamus pursuant

to ORS 34.250(l) (Snpp ER-l to Supp ER-l4). CTE asked this court to issue a
t
Corp.

Chitru Terminal & Electric Corp. is the former business name of CTE Tech

writ commanding the trial court to dismiss the complaint against CTE for lack of
personal jurisdiction (Supp ER- 9 to Supp ER-10). This court denied the writ mandamus without opinion (Supp ER-16 to Supp ER-17).

of

CTE then filed a petition for writ of certiorari to the IJ.S. Supreme Court. That Court granted the petition, vacated the judgment and remanded the case to

this court for further consideration in light of its decision in J. Mclntyre Machinery, Ltd. v. l,{icastro,564 US
131 SCt 2780,180 LEd2d765

(2UD2

(Snpp ER-18). This court then allowed the petition for alternative writ

-,

of

mandamus and commanded the trial court to vacate its order denying CTE's

motion to dismiss and to grant CTE's motion to dismiss or, in the alternative, to
show cause for not doing so within 14 days (Supp ER-19 to Supp ER-20). The

trial court did not respond.

C.

Statutory Basis of Appellate Jurisdiction

This court has jurisdiction of this mandamus proceeding under Article VII

(Amended), Section2, of the Oregon Constitution, ORS 34.120, and ORS 34.250
Because CTE challenges a legal ruling of
a

judge of the circuit court for

Multnomah County in this particular case, original jurisdiction lies with this court.

oRS 34.2s0(t).

'

^ The opinion in Nicqstro is attached as an Appendrx. ^t

rrr

,,

r.

D.

Order Denvins the Motion to Di Date of Entry of Information Relevant to Appellate Jurisdiction.

and Further

This mandamus proceeding arises out of an order denying a motion to dismiss which the trial courl entered on January 24,2011(ER-203 to ER-204). CTE

timely filed

petition for a writ of mandamus (Srrpp ER-1 to Supp ER-15) on

February 15, 2011, within 22 days of the denial of its motion to dismiss
ex rel Redden v. Van Hoomisen,

See State
41 5

28I Or 647 , 57 6 P2d 355, rev den, 282 Or

(1978) (laches governs the timeliness of a petition for a writ of rnandamus)

After this court denied the petition for a writ of mandamus without opinion on

April 15,2011 (Supp ER-12 to Supp ER-15), CTE filed atimely petition for writ
of certiorari to the IJ.S, Supreme Court, On Octob er 3,201l, the Court granted
CTE's petition for writ of certiorari,vacated the judgment and remanded the case to this court for further consideration in light of its decision
'tn

Nicastro (Supp ER-

18). On November 10, 2011, this court allowed CTE's petition for alternative writ
of mandamus (Supp ER-19 to Supp ER-20) and commanded the trial court to enter its order denying CTE's motion to dismiss, to enter an order granting the motion, or to show cause for not doing so within 14 days. The trial court did not respond.
CTE timely f,rled this opening brief on January 12,2012"

E.

Questions Presented on Appeal

In light of the decision in l{icastro, does the Due Process Clause forbid
Oregon courts from exercising personal jurisdiction over a non-resident component

parts manufacturer that has no connection to Oregon other than that a component

part it manufactured in Taiwan and sold to a manufacturer in Ohio ended up in

Oregon?

F.

Summary of Argument
The Due Process Clause of the Fourteenth Amendment of the U.S.

Constitution limits a state's authority to exercise personal jurisdiction over a nonresident defendant. Traditional notions of fair play and substantial justice require
that a non-resident defendant must have "minimum contacts" with the forum state

before the non-resident is subject to personal jurisdiction in the forum state

World-Wide Volkswagen Corp. v. Woodson,444 US 286, 297 (1980). Prior to the Nicastro decision, the Court was divided with regard to the test to
determine whether a non-resident defendant was subject to personal jurisdiction in the forum state. The decision in Nicastro establishes that the Due Process Clause

of the U.S. Constitution forbids courts from exercising personal jurisdiction over foreign defendant merely because the foreign defendant placed
a

product into the

"steam of commerce" with the knowledge or expectation that it might reach the

forum state, or because it purposefully availed itself of a national market. Instead,

the defendant must purposefully avail itself of the benefits and protections of the

forum state before it is deemed to have submitted to jurisdiction within that state

Plaintiffs here failed to satisfu their burden of proving that CTE purposefully
availed itself of the benefits and protections of Oregon law. CTE is a Taiwanese corporation with no connection to Oregon other than that a component part

it

manufactured in Taiwan and sold to a manufacturer in Ohio ended up in Oregon.

Applying the jurisdictional rubric of Nicastro,the Oregon courts lack jurisdiction

over CTE. Therefore, the trial court erred in denying CTE's motion to dismiss and

failing to vacate its order denying CTE's motion to dismiss after this court issued
its alternative writ of mandamus.

G.

Statement of Facts3

Plaintiffs' decedent, Karlene

'Willemsen,

sustained a fatal injury in a fire in her

bedroom in Portland, Oregon (ER-11). Plaintiffs Jeffrey and James'Willemsen

filed a civil action for wrongful death and property damages (ER-l to ER-17)

Plaintif sued 11 defendants, including those allegedly involved in the design,

manufacture, marketing, sale, or service of the motorized wheelchair, the

motorized hospital bed, and various electrical components and accessories located in the bedroom where the fire allegedly originated (ER-1 to ER-10). The
Relevant pleadings are presented in the excerpt of record and supplemental sealed excerpt that CTE filed with its petition for an alternative writ of mandamus, as well as in the supplemental excerpt of record filed herewith. This statement of facts is based on the allegations of plaintiffs complaint, the declaration of Peter Chen (ER-33 to ER-35) that CTE filed in support of its motion to dismiss, and the Romano declaration (Sealed ER-15 to Sealed ER-19) that plaintiffs' filed in opposition to CTE's motion to dismiss.

'

complaint alleged that CTE, a Taiwanese corporation, is liable for manufacturing

the battery andlor battery charger that was a component of the decedent's

wheelchair (BR-2). CTE sold batteries and battery chargers to Invacare Corp. ("Invacaro"), a customer in Ohio. Invacare then incorporated CTE's components into wheelchairs, some of which--including the one owned by decedent--were sold

in Oregon (Sealed ER-15, 1[3; Sealed ER-16,114). Plaintiffs complaint specifically did not allegethat: (1) CTE conducts any
business in the state of Oregon; (2) CTE was aware that its products were being sold in Oregon; (3) CTE had any contact with the wheelchair retailer, the decedent,

or any other Oregon individual or entity; (a) CTE directed, advertised or promoted the sale, distribution or support of its products in Oregon; (5) CTE had any special
state designs, advertisements, advice or marketing in Oregon; (6) CTE maintains

any offices in Oregon, owns property in Oregon, or pays taxes in Oregon; (7) CTE
has any registered agents in Oregon; (8) CTE owns or controls the distributor; or

(9) CTE has any other contacts of any nature with the state of Oregon. CTE filed a motion to dismiss plaintiff s complaint for lack of personal

jurisdiction (ER-18 to ER-30). In support of its motion, CTE filed the declaration
of Peter Chen (ER-33 to ER-35) to establish the following facts. CTE is a
Taiwanese corporation that has no physical or business presence in Oregon (ER34, TT 3-11). CTE is not licensed or registered to conduct business in Oregon (ER-

34,n 10) and it does not advertise or solicit business in Oregon (ER-34,

11)

CTE does not have contracts with, or sell any of its products directly to, any
Oregon-based vendors, retailers, distributors or individual consumers (ER-3 4,119).

CTE did not have any contact with the decedent or with defendant United Seating
and

Mobility, the alleged seller of the wheelchair, with respect to the wheelchair
1T

itself, or any of its parts, components, or accessories (ER-34,

13). CTE did not

design, control, or have any involvement in the system of distribution that

ultimately carried the subject battery charger into the State of Oregon (ER-34,
'1T

14). In short, the Chen declaration establishes that CTE did nothing to

purposefully direct the flow of its products to the state of Oregon and CTE had no
other connection with this state.

Plaintiffs response to CTE's motion to dismiss (ER-50 to ER-65) relied primarily on this court's decision in Stqte ex rel. Hydraulic Servocontrols Corp. D\e,294 Or 381, 657 Pzd 21 1 (1982). Plaintif also filed the Romano
declaration (Sealed ER-15 to Sealed ER-19)4, which satisf,red the jurisdictional threshold recognizedin Hydraulic Servocontrols, i.e.,that CTE manufactured and
sold battery chargers to Invacare in Ohio and that some of Invacare's wheelchairs
v.

Plaintiffs filed the Romano declaration in the trial court under seal. CTE filed that declaration under seal in this Court as a separate excerpt of record, referred to as "Sealed ER" herein. The general references to the content of the Sealed ER herein are followed, where applicable, by references to the paragraphs of the Sealed ER where more specific information is available for the Court's
review.

containing CTE battery chargers were sold in Oregon (Sealed ER-16,

lT''1T

4,8),

including the one purchased by plaintiffs' decedent. Additionally, plaintiffs offered

evidence

that: (1) CTE maintains product liability insurance in the United

States;

(2) CTE complied with federal product reporting and registration requirements; (3) CTE sold products to a company in Ohio, co-defendant Invacare; (4) Invacare sold
a small number

of

wheelchairs in Oregon in2006-2007 which contained battery

chargers manufactured by CTE; and (5) Invacare's total cost for the small number

of CTE battery chargers was relatively small (see Sealed ER-16, ER-17, T 10).

''lTlJ

4,7-9; Sealed

II. ASSIGNMENT
The trial court ered

OF ERROR

in: (1) denying

CTE's motion to dismiss; and (2) not

vacating its order denying CTE's motion to dismiss and granting CTE's motion to dismiss in accordance with this court's order allowing the petition for alternative

writ of mandamus.
On May 2I,2011, CTE filed its motion to dismiss as follows: CTE moves to dismiss Plaintiffs action pursuant to ORCP 2l on the basis that this Court lacks personal

jurisdiction.

(ER-19). On January 25,20f I, the trial court entered its order denying CTE's
motion to dismiss as follows:

NOW TFIEREFORE IT IS FIEREBY ORDERED that the CTE defendants'motion to dismiss for lack of personal jurisdiction is denied.
(ER-204).
On November 1 I,2011, this court allowed CTE's petition for alternative

writ of mandamus

as follows:

Wherefore, in the name of the State of Oregon, you are commanded to vacate the order entered on January 25, 2011, denying the motion to dismiss filed by CTE Tech. Co.p. and China Terminal Electric Cotp., and to grant the motion, or in the alternative to show cause for not doing so within 14 days from the date of this order. (Supp ER-19 to Supp ER-20). The trial court did not respond.

A.

Preservation of Error
CTE preserved error by filing its motion to dismiss and pursuing all available

appeals as explained at pages

I to 2 above.

B.

Standard of Review.

An appellate court reviews determinations of personal jurisdiction for an error

of law. Ram Technical Services, Inc. v. Koresko,240 Or\pp 620,636,247 P3d

rzsr (20rr).

III. ARGUMENT

A.

Personal Jurisdiction Before the Nicstro Decision.

Oregon law extends personal jurisdiction to the maximum extent allowed

10

under the Due Process Clause of the Fourteenth Amendment. ORCP 4.5

Prior to the Nicastro decision, the U.S. Supreme Court was divided with
regardto the test to determine whether a foreign defendant was subject to personal

jurisdiction in the forum state. In Asahi Metal Industry Co., Ltd. v. Superior Court
of Catifornia,4S0 US 102 (1987), in which a Japanese purchaser sued a Taiwanese
seller in a California court, the majority of the Court concluded that, on the facts that case, the state court's exercise of personal jurisdiction over petitioner was
unreasonable, unfair, and in violation of the Due Process Clause. But the Court

of

could not agree on the test to be applied, and no majority opinion settled the issue.
Justice O'Connor and three other justices concluded that the mere placement of a

product into the stream of commerce was not sufficient for personal jurisdiction
pu{poses, even

if

done with an awareness that the stream

will sweep

the product

into the forum state, absent additonal conduct indicatng qn ntent to serve the

forum state mqrket. 480 US at 103-104. This test has become known

as the

"stream-of-commerce plus" test. Another plurality ofjustices, led by Justice Brennan, posited that, as long as a defendant is aware that the final product was

t Und.t Oregon law, personal jurisdiction is governed by ORCP 4. For all practical pu{poses, and despite ORCP's laundry list of specific situations in which personal jurisdiction may be found, the crux of the rule is in ORCP 4L, which authorizes jurisdiction: "Notwithstanding a failure to satisff the requirement of Sections B through K of this rule, in any action where prosecution of the action against a defendant in this state is not inconsistent with the Constitution of this state or the Constitution of the United States."

11

being marketed in the forum state, jurisdiction premised on the placement of a

product into the stream of commerce was consistent with the Due Process Clause,
and no showing of additional concluct was required.

The absence of a controlling decision in Asahi led to a "wide array of confusing, and confused, opinions" in the lower courts. See, e.g. Metropolitan Life

Ins. Co, v. Robertson-Ceco Corp., 84 F3d 560,577 (2dCit 1996) (Walker, J.,
dissenting) (describing the doctrine as a "legal garden in disarray"); Todd David
Peterson, The Timing of Mnimum Contacts, Tg Geo Wash L Rev 101, 119 (2010);

A. Benjamin Spencer, Jurisdiction to Adjudicate: A Revised Analyss,73 U Chi L

R

ev 617, 617 (2006) (stating that constitutional doctrine of personal jurisdiction

has "generated confusion, unpredictability, and extensive satellite litigation over

what should be an uncomplicated preliminary issue.").

B.

Personal Jurisdiction After the Nicslro Decision.

The decision of the U.S. Supreme Court inNicqstro now requires a more

exacting standard to be applied under the Due Proess Clause. The Nicastro decision clearly establishes that the Due Process Clause of the Constitution forbids courts from exercising personal jurisdiction over a foreign manufacturer merely
because the foreign manufacturer placed a product into the "stream of commerce"

with the knowledge or expectation that it might reach the forum state, or because
it purposefully availed itself of a national market. Instead, a plaintiff must plead

1,2

and prove that a defendant purposefully intended to avail itself of the benefits and

protections of the law of the forum state before it is deemed to have submitted to

jurisdiction within that state Plaintiffs have failed to set forth a prima facie
ase that,

if true, would

establish personal jurisdiction over CTE. They offered no evidence to show that

CTE purposefully availed itself of the benefits and protections of Oregon law.
Instead, plaintif' arguments were entirely premised on the continued viability

of

the "stream of commerce" theory of personal jurisdiction articulated in Hydraulc

Servocontrols andby only one of the two four-justice pluralities in Asahi. Nicastro
makes clear that this theory of personal jurisdiction is no longer viable.

Nicastro was a product liability action filed in a New Jersey state court. The

plaintiff alleged that he sustained injury in the state of New Jersey while using
metal-shearing machine manufactured in England by the English-domiciled
J.

Mclntyre Machinery, Ltd. A [J.S.-resident distributor "on one occasion sold and

shipped one machine to a New Jersey customer."

Nicastro,I3l

SCt

at279I.

The

foreign manufacturer "permitted, indeed wanted, its independent flJ.S.-resident distributor] to sell its machines to anyone in America willing to buy them." Id.
The foreign manufacturer did not market or sell its product within the State of New Jersey. However, its representatives periodically attended trade shows elsewhere

in the United States, but not in New Jersey, to promote the sales of its products.

1d.

13

The New Jersey Supreme Court found jurisdiction was proper based on a "stream

of commerce" theory, and the U.S. Supreme Court reversed.

The common denominator of the plurality and concurring opinions in

l{icastro is the "stream-of-commerce plus" rubric of Justice O'Connor in Asah

Six justices in Nicastro held that the mere placement of a product in the stream commerce, with the expectation that the product might be sold and used in the

of

forum state, was insufficient to justify specific personal jurisdiction in the forum
state over a foreign manufacturer. Six justices rejected the "foreseeability" or

"stream of commerce" rubric in favor of the "stream-ocommerce plus" analysis the plurality led by Justice O'Connor in Asahi. Both the opinion authored by Justice Kennedy

of

in lr{icastro andthe concurrence

authored by Justice Breyer in

Nicastro applied the "stream-of-commerce plus" analysis.

The plurality opinion authored by Justice Kennedy emphasized that

jurisdiction is "a question of authority rather than fairness" (Ncastro,

13 1

SCt at

2789) and that the defendant must targef the forum before it is deemed to have submitted to the jurisdiction of the forum.

Id. It is insufficient "that the defendant

might have predicted that its goods will reach the forum." Id. at2790.

"[]t

is the

defendant's actions, not [its] expectations, that empower a State's courts to subject

[it]

to judgment."

Id. af 2789

14

In considering the Asahi decision, Justice Kennedy's plurality opinion noted

that "stream of commerce" is simply a "metaphor" to describe the "purposeful availment" analysis of the constitutional Due Process limits on the exercise of
personal jurisdiction in the context of the sale of goods. Ncastro, 131 SCt at2788,

2791. Yet, the metaphor has limits. "[T]he stream-of-commerce metaphor cannot
supersede either the mandate of the Due Process Clause or the limits on judicial

authority that Clause ensures." Id. at279l. According to the plurality, due process protects the defendant's right not to
be coerced "except by the exercise of lawful power." Id. at2783. Justice Kennedy
noted how the "stteam of commerce" metaphor had led some state courts astray in

their consideration of the constitutional limits of Due Process:

The imprecision arising from Asahi, for the most part, results from its statement of the relation between jurisdiction and the "stream of commerce." That concept, like other metaphors, has its deficiencies as well as its utilities. It refers to the movement of goods from manufacturers through distributors to consumers, yet beyond that descriptive purpose its meaning is far from exact. A defendant's placement of goods into the stream of commerce "with the expectation that they will be purchased by oonsumers within the forum State" may indicate purposeful availment. World-Wide Volkswagen Corp. v. Woodson,444 u. s. 286,298,100 S.Ct. 559,62L.8d.2d 490 (1980). But that does not amend the general rule of personal jurisdiction.

Id. at2783.

15

Justice Breyer, joined by Justice Alito, concurred in the decision that the evidence in the record did not

justiff jurisdiction over the foreign manufacturer in

the state where the product was purchased, andin which it caused injury to a local

user. Id. at279l-2794. Justices Breyer and Alito wrote separately to declare that Nicastro could be decided under existing precedents, including Justice O'Connor's

plurality opinion in Asahi. Id. at279l. As Justice Breyer wrote: "None of the
Court's precedents finds that a single isolated sale, even

if

accompanied by the kind

of sales effort indicated here, is sufficient" to support an assertion of personal jurisdiction by a state court. Id. at2792. "Rather, this Court's previous holdings
suggest the contrary."

Id. Citing

Justice O'Connor's opinion in Asqhi, Justice

Breyer noted that the Court has:

strongly suggested thaf a single sale of a product in a State does not constitute an adequate basis for asserting jurisdiction over an out-ostate defendant, even if that defendant places his goods in the stream of commerce, fully aware (and hoping) that such a sale will take place.
rd. Justice Breyer's concurrence expressed reservations about announcing a rule

of broad applicability, when it was impossible to anticipate the variables which could arise in a new era of interstate and intemational internet sales

I do not doubt that there have been many recent

changes in commerce and communication, many of which are not anticipated by our precedents. But this case does not

I6 present any of those issues. So I think it unwise to announce a rule of broad applicability without full consideration of the modern-day consequences.

Id. at279L Like the plurality opinion authored by Justice Kennedy, Justice Breyer's
conourrence applied the "stream-of-commerce plus" test to the facts in Nicastro,

concludingthatthe relevant facts "show no 'regular.,.flow' or 'regular course' of

sales in New Jersey... and there is no 'somethingmore'."

Id. Citing

World-Wide

Volkswagen Corp., 444IJS at297-298, Justice Breyer wrote that Mr. Nicastro did not meet his burden of proving jurisdiction, because Mr. Nicastro "has shown no

specific effort" by the foreign manufacturer to sell in New Jersey (Ncastro,

SCt at 2792.); Vt.. Nicastro did not show that the foreign manufacturer

131

"'purposefully avail[ed] itself of the privilege of conducting activities'within New

Jersey"

(Id); and Mr. Nicastro did not show that the manufacturer "delivered
will

its

goods in the stream of commerce 'with the expectation that they

be purchased'

by New Jersey users." .Id. Justice Breyer's concuffence cited Justice O'Connor's

opinion in Ashai with approval, as "requiring 'something more' than simply placing
'a product into the stream of comrnerce,' even

if the defendant is'awar[e]'that the

at2792. Justice

stream 'may or

will

sweep the product into the forum State."' Id.

Breyer's concuffence, like the plurality opinion, rejected the application of the "stream of commerce" approach advocated by Justice Brennan's plurality opinion

1l
in Asahi, which would have compelled the opposite result. Justice Breyer wrote:

"fT]hough I do not agree with the plurality's seemingly strict no-jurisdiction rule, I
am not persuaded by the absolute approach adopted by the New Jersey Supreme

Court." Ncastro,131 SCt at2793.

Justice Ginsberg dissented, joined by Justices Sotomayor and Kagan

Although the dissent disagreed with the result, it acknowledged the far-reaching effect of the decision the majority reached: "[S]ix justices of this Court, in
divergent decisions, tell us that the rnanufacturer has avoided the jurisdiction of our
state courts, except perhaps in States where its products are sold in sizeable

quantities .u Id. at 2795. Justice Ginsburg wrote that she "took heart" that the

plurality opinion does not speak for the Court because it undermines Internatonal
Shoe Co. v. Washington,326 US 310, 316 (1945).

Nicastro,13l SCt at2804. ln

the dissenters'view, the decision of the splintered majority would permit a foreign corporation to "wash its hands of a product by having independent distributors market it" in the ljnited States. Id. at 2795.

In sum, six justices inNicstro rejected both the "stream of commerce" test
espoused by plaintiffs here and the foreseeability test contained in Justice

Brennan's concurence in Asah.

SO

All

nine justices recognized that they had done

18

Subject to the as-yet-undecided question of how these principles

will apply

to cross-border sales over the Internet, the decision of a majority of the justices in

{icastro compel the conclusion that the following core principles limit a state
court's exercise of personal jurisdiction over a foreign entity
a

Placing a product in the stream of commerce is legally

insufficient, even if the manufacturer seeks to serve the entire United States market;
o

Foreseeability is not the test for determining purposeful availment;

Purposeful availment must be based on the defendant's conduct;

Plaintiff must offer evidence of purposeful acts of the defendant

directed at the forum state;
o

Purposeful acts of the defendant must be different from acts directed at the U.S. market generally; and,

The acts must be such as are directly related to, and give rise to,
the plaintiffs cause of action.

The "principal inquiry" is whether: the defendant's activities manifest an intention to submit to the power of a sovereign. In other words, the defendant must "purposefully avaifl] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws."

19

Nicastro, 131 SCt at2787 (citations omitted). The defendant must target the forum
state in order to be deemed to have submitted to a forum state's

jurisdiction. "The

defendant's transmission of goods permits the exercise of jurisdiction only where

the defendant can be said to have targeted the forum; as a general rule, it is not
enough that the defendant might have predicted that its goods

will

reach the forum

State." Id. at 2788.6

C.

The Application of the Nicastro Decision in the Present Case. In Nicastro, the plaintiff failed to meet his burden of proving that the

rnanufacturer intended to serve the New Jersey market. 131 SCt at279I. Factors that swayed the Supreme Court in Nicastro were that the British manufacturer had no offices in New Jersey, did not own property in New Jersey, did not pay taxes in

New Jersey, did not advertise in New Jersey, and did not have employees in the
state. Id. af 2790. The only contact that the foreign manufacturer had with New

E,r.n before Nicastro, "purposeful availment" was held to require more than constructive knowledge that products might end up in a particular state; it means apurpose by the defendant to avail itself of a state's consumers. The Court has explained that, to satis$i this requirement of purposeful availment, a defendant must have "deliberately exploited" the state's market--a standard akin to specif,rc intent. Keetonv. Hustler Mgazine, lnc,,465 US 770, 781 (1984). "Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himselfthat create a 'substantial connection' with the forum State." Burger King v. Rudzewicz, 471 US 462,475 (quoting McGee v. International Life Ins. Co., 355 U5220,223 (1957)). "fR]andom, fortuitous, or attenuated contacts" do not sufhce, 471 US at480.

20

Jersey was that "up to four of its machines," including the machine in question,

ended up in New Jersey. Id.

Similarly, in the present case plaintiffs have failed to meet their burden of proving that CTE intended to serve the Oregon market or "targeted" Oregon in any

way. Plaintif did not prove (or allege) that CTE conducts business in Oregon-either by having offtces in Oregon, owning property in Oregon, paying taxes in Oregon, advertising in Oregon, or having employees in Oregon. CTE had no contact with Oregon other than that Invacare sold a small number of power wheelchairs, containing CTE battery chargers, in Oregon (Sealed ER-16, T 8).t

In determining whether the foreign defendant purposefully directed sales of

the product to the forum state under the specific personal jurisdiction test, the lead and concurring opinions in Nicastro also discussed whether there was a "regular

flow" or "regular course of sales" in the

state

(Id. at2784 (Justice Breyer));

whether there was "something more" than placing a product in the stream

of

commerce, such as special state design, advertisements, advice or marketing (Id.

(Justice Breyer)); or whether the defendant distributed goods to the United States

Furthermore, in the present case, there is less of a connection between the defendant and the forum state than in Nicastro, because CTE did not even target the United States as a whole. However, in Ncastro, where it was undisputed that the foreign manufacturer targeted the United States as a whole, the plurality found the level of contacts with the United States was irrelevant (Id. ar" 2787), and the concurrence found it was either irrelevant or legally insuff,rcient.

2T

or the forum state through an independent distributor or one owned or controlled by the defendanf (Id. at 2786 (Justice I(ennedy)). The dissent acknowledged the effect of the decision in Nicqstro when Justice Ginsburg wrote that "six Justices of

this Court, in divergent opinions, tell us that the manufacturer has avoided the

jurisdiction of our state courts, except perhaps in States where is products are sold
in sizeable quantities" (Id. at2795 (Justice Ginsburg)). Although there is evidence that Invacare sold wheelchairs in Oregon
containing battery chargers manufactured by CTE, plaintiffs offered no evidence

(or allegation) that there was a "regular flow" or "regular course of sales" in Oregon. Plaintif also offered no evidence that CTE played any role in promoting, selling, distributing, advertising, servicing, or directing business to or

within Oregon. Therefore, whatever products ultimately found their way into
Oregon as a result of the efforts of Invacare, plaintif failed to adduce any
evidence that the presence of CTE products in this state was caused by any

purposeful action of CTE directed to Oregon. Rather, the evidence indicates that

this is an atypical case in which CTE sold a component to an out-of-state

wheelchair manufacturer who, in tum, incorporated the component into its wheelchairs, a small percentage of which were sold in Oregon.

Plaintiffs also did not allege that CTE's conduct involved "something more"
than placing the battery charger in the stream of commerce. There is no allegation

22

of a special state design, advertisements, advice or marketing, or the use of

distributar ovned or controlled by CTE. Plaintiffs offered no evidence: (1) that CTE controlled, encouraged, promoted, expected, or knew where Invacare was selling its products; (2) that CTE knew how many (or if any) wheelchairs or CTE
battery chargers had been sold in Oregon; or (3) that CTE knew what,

if

any,

revenue Invacare derived from the sale of wheelchairs or CTE battery chargers in

Oregon or shared in

it.

CTE establishecl that CTE's econontic benefits were

complete upon completion of sals to Invacare in Ohio , and that it made no

practical difference to C'IE whether Invacare turned around and sold power
wheelchairs containing CTE battery chargers solely in the Midwestern United
States, or only in Cleveland, or elsewhere (ER-35,
1T

l4).

CTE sold battery

chargers f'rr sums which represenled a small percentage of the cost of the Invacare

power wheelchairs (Sealed ER-16, fl 9). Indeed, plaintiffs presented no evidence that CTE had any knowledge that Invacare was a nationwide distributor or seller its products, let alone that it was dcring business in Oregon, and no evidence that CTE had any pov/er to control or direct Invacare's activities in sales, distribution, or otherwise. To the contrary, the only logical inference fiom the evidence
presented is that a Taiwanese supplier of a minor component in a complex power

of

wheelchair is the tail, not the dog.

23

In addition, other factors not presenl\n Nicastro demonstrate that CTE's

connections with Oregon are even more attenuated than the connections of the

manufacturer u'ith the forum state in Nicastro. Inl{icastro,the manufacturer "directed rnarketing and sales efforts at the United States" (Id. aT2790), and
employees of the manufacturer attended trade shows in several states to promote the product

(Id.). There is no comparable evidence in the present case. In

Nic:astro, "up to four machines ended up in New Jersey" (Id.) that each cost apprcrximately $24,90A, for a total

of

$99,600 (J. Mclntyre Machinery, Ltd. v

SCt

Nicastt"ct,201 NJ 48,54,987 A,2d575,578 (2010), rev'd 564 US

278A,180 LEd2d765 (2011)).8 Here, Invacare installed a small numbel of CTE

-_,131

Yet, additional facts revealed in the state court opinion in Nicastro also show that CTE's onnec.tions with Oregon are even more attenuated than those the manufacturer in Nicastt,o had with New Jersey. lnl{icastro,the rnanufacturer was aware that its product might end up in the forum state (l Mclntyre Mchneryt, Ltd. 131 SCt v, Nicastro,2Al NJ 48, 57,987 AZd575,580 (2010),rev'd564 US 278A,180 LEd2d765 (2011)). There was no evidence that CTE knew that its the prorlrrct might end up in the forum state (ER-35, 1T 14). In Nicastro, -, name of the U.S. distributor also bore suffcient similarity with that of the manufacturer as to cause consumers to believe there \/as some corporate relationship (20I NJ at 79, 987 A2d at 593), and the shared use of the foreign manufacturer's adctress and telephone number would have led a purchaser's expectation to the foreign manufacturer. Id. In contrast, because CTE sells only a component part which defendant Invacare incorporated into a power wheelchair (ER-34, I 6), a consumer's expectaion would more likely relate to the manufacturer of the wheelchair tharr to the manufacturer of the battery charger. In adclition, the manufacturer in Nicastro had a direct economic stake in th.e sales of its products to consumers in the state where they were sold, in that the manufacturer sold its products on consignment, retaining ownership until the distributor sold the products to a United

24

batfery chargers that cost a relatively'sma1l amount (Sealed ER-16,\7), and then
trnvacare sold a small number of these power wheelchairs in Oregon

(Id. at\8).

The total cost of the battery chargers Invacare sold in Oregon (Sealed'ER-17, T 10) was less than one-third of the total cost of the machines that the foreign manufactr.rrer sold in the forum in Ncastro.

The Effect of Nicastro on This Court's Holding in Hydraulc Servoconrols.

The

rulingin Nicastro compels this Courl to reconsider its prior holding in

flydraulc: Sertocontrols, the lead Oregon precedent on personal jurisdiction. In

Iydraulic Servocontrols, this Court hld that Oregon had jurisdiction

over: the

Nerv York-domiciled manufacturer of airplane engine colponents, even though the manufacturer conducted no business in Oregon, had no offices in Oregon, and
conducted. lro sales in Oregon, and even though the airplane crash giving rise to the

action occurred in California. This Court analyzed whether: by placing its product into the stream of American commerce so that it reaches consumers in Oregon by means of the commercial ctistribution activity of others, Ilydraulic has sufficient contact with Oregon that exercise ofjurisdiction is lawful when an Oregon resident is damaged by defects in that product" We hold that it is.

States cor-lsumer. Id. In the present aqe, C'IE sold its product directly to trnvacare and had no direct economic stake in (or control over) the sales of trnvacare's products in the forurn state (ER-34,L 6; ER-35, T 14).

25

294 Or at 383-38 4,,657 P2d

at272. Inreaching this holding, this Court relied on

dictum in World-Wide Volkswagen, v,hichwas the only authority avajlable at the

Time (294 Or at
3

83, 3 89, 657 P2d at 212,

21

5). The Court applied

a "stteam

of

commerce" analysis and concluded that "Hydraulic, having sold a product with the

intention of deriving economic benefit from a national market, including Oregon.

can expet to be haled into court irr Oregon rvhen a product containing its allegedly

defective sorvo actuator is purchased here and causes injury to a resident." 294 Or
at 389, 657

P2dat2|6

This Court's decision in Hydraulc Servocontrols is no longer viable in light

of Nicastro, which clarified the due process limitations upon a state's exercise of
personal iurisdiction.

It is no longer sufficient that a foreign manufacturer merely

place a product into the "stream of commerce" with the knclwledge or expectation

that it might reach the forum state, nor that it purposefully avail itseif of a national

market. lnstead,

plaintiff must prove that the activities of the defendant indicate

that the defendant purposefully intended

la avail itself of the benefits

and

protections of the forum state before the defendant is deemed to have submitted to
personal jurisdiction within the forum state.

Applying Nicastro in the present case, Plaintiffs did not show that CTE
purposefully avaiied itself of the benef,rts and protections of the laws of the State of Oregon, The Due Process Clause does not permit the imposition of personal

fV. CONELUSION

MARTINI BIS CHOFF TEMPLETON LANGSLET & HOFFMAN LtP

APPE,NDIX

APP.1
J, Mclntyre Machinery, Ltd. v. Nicastro, 131 S.Ct' 2780 (2011)
180 L.Ed.2d 765, 79 USLW 4684, Prod.Ltab-Kep. (ccH) P 18,653

$1S.Ct. 2780 Supreme Court of the United States

.I. McINTYRE MACHINERY, LTD., Petitioner, Robert NICASTRO, Individually and as Aclministrator of the state of Roseanne Nicastro
1

within its sphere. (Per Justice Kennedy with thrce justices concurring and two j usticcs concltriug in judgment.) U.S.C A Const,Amcnd. l 4'
2 tascs that citc this heaclnote

Ju

dg

ntent
Petsols Not Par'tics or Privies

i=

As a general rule, rteither stante nor judicial

No, o9-r343. I ArguedJan. lt, zotr. I DecidedJune 27, eorr.
Synopsis

decree rnay bind strangers to [he State. (Per Justice Kennedy with threc justices concurring and two justices concuning in judgrnent.)

Backgrortncl: Worker who seriously injured his hand while using meta-shearing machine brought products-

Constitutional Larv

liabiiity suit against foreign manufacturer. The New

Jersey

Non-residents in geltelal

Supcrior Court, Law I)ivision, Bergen County, dismissed the complaint. Workcr appealed, The Superior Court, Appellate

Division, Lisa, J.A.I)., 399 N,.l.Supet. .5-9, 945 A'2d 92. reversed and remaltded. Manufacturer petitioned for certification which was granted. The Ncw Jerscy Supreme Court, Albin, J., 201 N,J 48, 987 A.2d 575, affrmed,
Certiorari was granted.

A court may subj ect a def'endant to judgrlent only when thc dcfcndant has sulficient contacts with thc sovcleign such that the maintenance of thc suit does not offend traditional notions of fair play and substantial justice. (Pcr Justice Kennedy with three justices concun'ing and two justices concuing in judgment.)
10 Cases that citc this headrrote

Holding: Thc Supreme Court, Justice l(ennedy, held that

foreign tnaunfacturer did not engage in oonduct purposefully directed at New ,lersey, so as to support New Jersey's exercise
of
4

jurisdiction over manufacfirrer,

Federal Civil Ptoccdtlre Rcquisites and validity .Iudgmcnt

Reversed,

Justice Bleyer filed an opinion concurring in judgment in

which Justice AIito joined.

Justicc Ginsburg tled a disscnting opinion in which Justicc Sotouriryol and Justice I(agan joined. Wcst lleadnotes (16)

d*' Autholity o1'Coutt ol'Othcr Tribunal Freeform notiols of fundamental faruess divorccd from traditional practice cannot transfomr a judgment rendered in the absence of authority into law. (Per Justice Kcnncdy
with tlrree justices concurring aucl lwo justiccs
concurring in judgment.)

I
Constitutional Lnrv

Cases thir! cite this headrLotc

= Plotcctio ns Provitled anrl I) epriva ti orts Prohibitcd in Ceneral

'the Due Process Clausc protects an individual's right to be dcprived of life, liberty, or property only by the cxct'cise of lawful power; this is no lcss true with respect to the power of a
sovcreign to resolve disputes through jr"rdicial process than with respect to the power of a sovereign to prcscribe rules of conduct for those

Courts

4,:

Pttryose, inlent, and l'or-eseeabilify:

purposefuI availtnent

Courts
Torts in gcneral sovereign's exercisc of power requires some act by which the def'endant

As a general rule, the

purposeftilly avails itself

of thc privilege of

Li

r,...:,lir.r'.rfrl*[i ,,:i"'i;

'j-lrlrrl;crr le,.ui;:i-s.

Nu- i;l,lirrl

tc crrg!al Li,li, (.;t:rcrni]'eni Vt(iii(li

APP.2
J. Mclntyre Machinery, Ltd. v. Nicastro, 131 S.Ct. 2780 (2011\
p

condr.rcting activities within the f'orum Statc, thus invoking the benefits and protections of its laws,

Colrstitutiorrnl l-,atv
4]> Non-rcsidctrts in geuelal

some cases, as with an ntentional tort, the defcndant might well fall within thc Statc's authority by reason of his attenrpt to obstruct its laws. (Pcr.lustice Kenncdy with thlee justices concurrng and fwojustices concltring in

though

in

Those who live

or

operate primarily outside

Statc have

a dne process right not to

bo subjected to jucigmcnt in its courts as a

general matter. (Per Justicc Kennedy with three justices concuning and two justlces concurring in udgrnent.) U.S.C.A Cols[.mcncl. l4'

ju<tgment.)

2l
6

Cascs ttrt r:itit

liiis herrduote
I

Cascs that cite this Lieaclnote

Constitutionnl Law rv= Manufacture, clistlibutioli, and sale

In products-liability

cases,

it is the non-resideut

Courts e. Pntprrse, intent, and foresecabili':

rrtrposefirl avalnrent

clefendant's ptrrposcful availment

that

lnakes

jur'isdiction consistent with ttaditional notons of fair play and substantial jr"rsticc. (Per Justice Kcnncdy with three justices concurdng and two
justices concuning in judgrnent.)
2 Cases that cte this hcacllltlte

Courts

6-

Related ontacts nlrl activities; slec.ilc

jurisdiction

Where

defendant purposefillly avails itself

of the privitegc of conducting activitie$ within

the forum State, thus invoking the benefits and protcotions of its laws, it submits to the judicial power of an othcrwisc foreign sovereign to thc extcnt thaf power is exercised in connectiou with the defendant's activities touching on thc
State; in other wotds, submission through contact

Courts

.lurisrliction oflthe Pelson in General

Clorrts = Actions by or Against Nonresiclelrts,

lelsonai Julistlic(icn hr; "Long-Arnr"

Jur-isd

ictol

person may submit to a Staie's authority in a number of ways: there is, of course, explicit consent, presoncc within a State at the time suit cotnmences through service of process is another exampie, and citizenship or dotlicile, or, by analogy, incorporation or principal placc of

with and activity directcd at a sovereign may justiff specific jur:isdiction in a snit arising out of or related to the defendant's contacts wilh the forum. (Pcr Justice Kennedy with three
justices concurring and two justices con<;urring in

judgmcnt.)
25 Cases that cite

tiis

bcadnore

business f'or corporations, also indicatcs general submission to a State's po\{ers; each of these examptes I'eveals circumstanes, or a course of

l0

Courts

Manul'acturLe,

Distlibution, rrd Sale of

onduct, frotn which it is proper to infr an intcntion to benefit from and thus an intcntion to submit to the laws olthe Jbrum State, and supports
exrcise ofthe general jurisdiction of the State's courts antl allows the State to resolve both mattcrs

Prodtrcts

that originate within the State and those based on activities and events elscwhcrc. (Per Justice Kennedy with threc justices concurring and two
justices concurring in iudgment.)
3 Cascs that e:ite this Ircadnote

The principal incluiry in detetmining whether jurisdiction exists in cases wherc a defndant places goods into the stream of commerce with the expectation that they will be purchased by conslrlners within the forunr State is whether the defendant's activities manifest an intention to submit to the power of a sovereign; in other wolds, the defendalit must purposefully avail itself of the privlege of conducting activities within the forum State, thus invoking the benefits

,,'t',

1i.r,-.,

llgtJ'r!.,' 2i)i?.,::ortiror i(jt:ijil l'!.. /-l:iri {o iii.linr-,'l i..l.ri (,t.:vrrilil6;rli

V\it.rl i''s

'7

APP.3
J. Mclntyre Machinery, Ltd. v' Ncastro, 131 S.Gt. 2780 (2011l. H) P 18,653,.. Prod.Liab.ReP. 180 L.Ed.2d 765,79 USLW
and protections of i1s laws. (Per Justice Kennedy

Fedelal Civil Proccrlure

with three justices cououniug and two justices

conour-ring in judgment.)
-10 Ciascs

,s:

Rcquisitcs anci validiry

Judgment
,'.1- Ar.rthority of'Court or Otltcl Ttibunal

tlitrt citc this hr:adnote

1l

Courts

Personal jurisdiction restricts judicial power not as a matter of sovereignty, but as a matter of inrJividual liberty, for due process protects the

'tl-

Manu{acturc, Distt ibrrlitrn, and Sale of

goocls pernrits the

individual's Light to be subject only to lawful

power; but whethcr
a

Ptoducts

judicial judgment is lawful

three

A defeudant's transrrtission of

depends on whether the sovereign has authority

cxeteisc ofjuriscliction only where the def'endalrt

to render it. (Per Justice Kennedy with

oan be said to havc targeted thc fonrm; as a general rule, it is not cnough that the defcndant mght have predicted that its goods will reach the forum Statc. (Per Justice Kctrnedy with three
justices concun'ing and rwo justices concurting in judgnrent.)
8 Cases that oite lhis hcacirtote

justices concurring and two justices concurring in judgment.) U.S.C A, Const.Amend. 14.
4 Clase-* rhat' cite this heaclrrote

t5

I;ederal Courts

'

Telritolial limtatiolls and vetrltc irr general

Beoause the United States is a distinct sovereign,

t2

Coul'ts

a defenclant rnay in principle be subject to le jurisdiction of the courts of the Unitecl States but
not of any parlicular State. (Per Justice Kennedy with three justices concunilrg nnd two justices

4*

Juliscliction oltlre Pelson in Cenetal

It is the defindant's actions, not his expcctations, that empower a State's courts to subject him to judgrnent. (Pcr .Tustice Kcnnedy with three justice s concut'ring and two justices concrtrring iu
jurlgment.)
16

concuring in judgmcnt.)
3 Cases that cile this lieaclnote

I
I3

Constitutional Larv

Cascs that oite this hearinr:te

d=

lVlanufauttrle. clistrilution' arrd sale Mcrnulctule, Dstlibutiou, and Sale of

cts

Courts

Courts

(r=

Retatcrl contacts atrcl activities; specil'rc

P ro clu

juL'isd icton

Personal jurisdiction reqttres a fbrum-by-fonrm, or sovct'cign-by-sovereign, anirlysis; the question

English manufacturer of tnetal-shearing machine which iujured wotker's hand did not engagc in con<uct purposefully direcl.ed at New Jerscy, as reruired to support New .lrsey state coutt's

is rvhether a

defendant has followed

course

of conduct directed at the society or ecolomy existing within the jurisdiction of a gven
sovereign, so that the sovereign has the powor to subjcct the defendant to judrnenl concerning that conducl.. (Per Justice Kennedy with three j usticcs concurring and lwo justices concurring in judgmcnt.)

exercise

of

jurisdction, consistent

with

due

process, over manufacturcr in worker's productsliability suit, even though manufacturcr agreed

to sell its machines in Unitcd States, its offlrcials attended trade shows in several States, though not
New Jerscy, and up to four of the machines endecl up in New Jelsey; manufacturer had no ofice in New Jersey, it neither paid taxes nor owned property there, and it neither advertiscd in, nor
sent any ernployees to, New Jersey. (Per Justice

I0 (larcs tht cite this hcfltlnoio Constittttioual Law

L4

Kennedy with three justices concurring and

(>* llelsonal jurisdiction in general

,i,rr:,,ii;i! l\.{lt (1;l',)i",:a li(.rlr.:s<;:t

leult;r; Ntl clitll

i.r:,

Ori.lirrei l.j

('ivtirrrrt',rlti V,ic;r ii:i

.)

APP.4
J. Mclntyre Machinery, Ltd' v, Nicastro, 131 S,Gt, 2780 (2011)
L.

two justiccs concurring rn judgment). lJ.S.C..

Consl.Arlrelid 14. 4 (lases that citc this headnote

revcalcd an intent to invoke or bcnefit from the protection of the State's laws, New Jersey is without power to adjndge the company's rights and liabilitics, and its exercise of jurisdiction would violate due prooess. Pp' 2'186 -2791'

'x2782 Syllbus

(a) Due ptocess proteuts thc defendant's right nt to be coerccd cxcept by lawful judical power'. A coutt tnay subject a defendant to jltdgment only whcn the defendant has suff,rcient contacts with the sovereign "such that the
maintcnance of the suit does not offend 'traditional notions

The syltabus constitutss no part of the opnion of the Coutt but has been prepared by the Rcporter of
Decisions t'or thc convenictlce of the reader ' See Uuitd Slates t,, Dtzlroit Tinbt'r cl lnnber Co 2l)0 tJ'S. il l.

offair play

and substantialjustice.'

" [nternotionll

Shoe Co

tt. Wusl'rington, 326 U S. 310' 316, 66 S.Ct' 154, 90 Ld' 95. Fleelorm fundamcntal faimess notios divorced from
tradtional practice' cannot fiansform a judgment rendcred wthout authority inlo law. As a general rule, thc scvereign's
exercise ofpower requires somc act by whioh the defendant "purposcfully avails itself of the privilege of conductirrg actvitics wifhin the forum State, thus invoking the bcnefits andproteotions ofits laws."Jlansortv' Dent:lclo, 357 U S 235, 2$,78 S.Ct. 1228. 2l*Ed.2d i283. In cascs like this one, it is thc defendant's purposefuI avaihnent that rnakes jurisdiction consistcnt with "fair play and substantial justice" notions No "strcaln-of-commetce" cloctrine can displace that general rule

'

137, 26 S.Ct. 282. .s0 L.Ed. 199.

Respondcnt Nicastro iljurcd his hand while using a metalshealing machine that petitioner J' Mclntyre Machinery,

Ltd. (J. Mclnfyle), manufatured r England, where the conpany is incorporated and operates. Nicastro filcd this productsJiability suit in a state coufi in New Jclsey, u,herc the accitlent occurred, but J. Mclnbyre sought to
dismiss the suit for want of personal jurisdiction Nicastro's jurisdictional claim was based on three primary facts: A U.S. distributor agleed to sell J. Mclntyre's m'dohines n this country; J. Mclntyre officials attended trade shows in scvcral States, albeit not in New Jersey; and no more than fcrur J. Mclntrre machines (the rccord suggests only one),

fbr productsl ability cases.

The rulcs and standards for dctermining statejurisdiction over an absent pay have been uncleat becausc of decadcs-old

including the one at issue, endcd up in New Jcrscy' Thc State Supreme Court held that New Jerscy's courts can exetcise jurisdiction over a foreign lnanufacturer without contravenng the Fourtcenth Amendnlent's l)ue Proccss Clause so long as
the manufacturer knew or reasonably should have known that its products are distributed through a nationwide dishibution system that tnight lead to sales in any ofthe States' Invokitrg thjs "sh'eam-of-commerce" doctrine ofjurisdiction, the court

questions le1 open in Astthi' The imprecision arising from ,4.sahi, for the most part, results from its statement of the relation between jurisdiction and the "strcam of commerce'"

That concept, like other metaphors, has its deficicncies as well as its utilities. It refers to the moverneut of goods from
manufacturers tlrrough distributors to consumers, yet beyond that dcscriptivc ptrpose its rncaning is far frorn exacl' A defendant's placement of goods info commerce 'fuith the expectation that they will be purchased by constmers within
the forum State" may indicate purposeful availment' lV'ile Volksv,agen Corp.

rclied in pl;tonAsuhi full lndu'st'' *2783 Co. v' S'tperior CLttrt of Cal.. Soano Ct."-, 480 l].S' l02' 107 S.Ct' I026' 94 L.Ed 2ct 92 Applying its test, the court concluded that
J. Mclntyre was subject to jutisdiction in New Jersey, even though at no time had it adveniscd in, sent goods to' or in any relevant scnsc targeted the State.

llorld-

v,

tflood:;ott, 444

U'S'

2B6, 298'

100 S.Ct. 559, 62 L.8d.2c1 490,

But that does not amend the

gerreral rule of pet'sonal jurisdiction. The principal inquiry in cases of this sott is whether the defendnt's activities manifest an intention to submit to the power of a sovcreign' See, e.g., ITansorz, sttPta, Justice Brennan's concurtence ( oined by three other Justices) discarded the cntral concpt ofsovereign authotity in fvor

Ileld: The judgment

201

^t

253, 78 S.Ct. 1228' In Asah[

is reverscd,

J. .18, 987

A.2d 575. rcvcrsed'

Justicc

I(ENNEI)Y, joined by TIIE CIIIEF ruSTICE, Justice SCALIA, and Justice TIIOMAS, concluded that because J' Mclntyre nevcr engaged in any activities in New Jersey that

considerations on the theory that fhe defendant's ability to anticipate suif is the touchstone of jurisdiction. 480 U.S., at I1?, l0? S.Cl. 1026' However'

of faimess and foreseeability

Justice O'Connor's lead opinion (also for four Justices) stated

that "[t]he 'substantial coillection' between the dcfendant

,,lr!--ri.;,..r'l.li:;t i:a):lC)i.

iiornr,:.:r

to!iors

tr!c.

olainl it' <l;'r;irn l-j L. (;vernlrtgrrt

iVorl<.s

APP.5
J. Mclntyre Machinery, Ltd. v, Nicastro, 131 S'Ct.2780 (2011)

and he t'orum State necessty for a finding of minimum

contacts

nust comc

abor,rt

by

rn

action of thc defendant

that would warrant the assertion of jurisdiction' Nicastro has srown no specif-rc cffort by the British Manufacturct to sell Jersey. And he has not otherwise show tht the British Manufacturer " 'purposefully avail[ed] itself of thc pr-ivilege of conducting activilics' " within New Jerscy, or that

purposefully dit ectcd toward the forum State ." Id., aL112, IO'7 S.Cl. 1026. Sincc sahi, the courts have sought to reconcile *2784 rule the compcting opinions' But Justice Brennar's basecl on general notions of t'airness and foresceability is

in New

it

delivered its goods

in

the stleam

ol

commerce "with thc

inconsistent with the prcmises of lawful judicial power under this Court's precedents Toclay's conclusion that the authority to subject a <iefendant to judgrrent depends on purposeul availmcnt is consistent with Justice O'Connor's ,4sai opinion. Pp. 2786 -2790.
(b) Nicastro has not established that J' Mclntyre cngaged in conduct purposefi,rlty clirected at New Jersey' The company had no officc in New Jersey; it rreither paicl taxes nor owned pl'opcrty there; and it ncither advertisccl in, nor sent any enrployees to, tl.re State. Indced, the trial coutt found that

expeotation that thcy

will

be purchased" by New Jerscy users'

l/orlcl-llide l/ollcsv,agen' sxtpra' &1297 298' 100 S'Ct 559'

Pp. 2785 -z'78'l.

(b) Justice BREYER would not go furthcr'

Becausc the concerns, and incident at issue does not implicate modern becausc the factual record leaves mIriy open questions, this
an unsuitable vehicle for making broad ptonouncements that cfashion basic jurisdictional nrlcs. At a mininrum, he would not work such a change to the law in thc way either the plurality or the Ncw Jersey Supremc Court suggests without a bettcr understanding of the relevant contcnpolary

is

petitioner did not have a single contact with the State apart from the fact that the machinc in questiot encled up thcre' Neither these lacts, nor the tliree on which Nicastro oentered his jurisdictional claim, show that J. Mclntyrc purposefully
avajlcd itself of the New Jersey market. Pp.2190 -2191.

comrnercial circumstatlccs. Insofat as such considerations are relevant to any change in prcsent larl, theymight be prescnted

in a

case (unlike the present one)

in rvhich the Solicitor

General participates. Pp. 2786 - 2788'

Justice IIREYER, joined by Justicc ALITO, agreed that

the Ncw Jcrsey Supreme Courls judgmcnt must be revetsecl, but concluded that because this casc docs not present issues arising from recent changes in ctmmercc and communication, it is unwise to announce a rule of broad applicability without fully consiciering modern-day
consequences. Rather, thc outcomc of the casc is determined by the Court's preccdenls. Pp. 2785 -2788. (a) 13ased on the record, respondent Nicastro failcd to rneet his

*'2785 KENNEDY, J., announced the judgment of the Conrt and delivcred an opinion, in which ROtsERTS, C'I', and SCALIA and THOMAS, JJ., joined' BREYER, J', filed an opinion concuning in the judgmcnt, in ''hich ALITO, J" joined. CI\trSBURG, J., hled a dissenfing opinion, in which SOTOMAYOR and KAGAN, JJ., joined.
Attorneys and Law Firms

Arthur

Fet'gettson,

Ellicott City, MD, for Petitioner,

burden to demonstrate that it was constituiionally propor to exercise jurisdiction over petitioner J. Mclntyrc Macltinety' Ltd. (British Manufaclurer) The thr:ee primary facts thc state hgh court rclied on do not satisfl due proccss' None ofthc Courl's prcoc<ients finds that a single isolated sale, even if

Alexancler'W. Ross, Jr., Marlton, NJ, for Respondcnts' Stcvcn F. Gooby, Rotreftr'\. Assuncao, Jarnes S. Coons, Ansa Assuncao, LLP, East Brunswick, NJ, Arthr'u' F' Fet'geuson, Ansa Assuncao, LI-P, Ellicott City, MD, Jefl'cy W' Cit'een'
Sarah O'Rourke Schnrp, Cliicago, IL, for Petitioner' JolrrrVail, Anrlre M. Mura, Valeric M. Namrery, Washington, .W. Ross, Jr., Jance L. I'Ieilrold, Rakoski & DC, Alexanclel' Ross, P C., Marlton, NJ, fbr Respondents.

suffciqnt. See l[/orld-Iltidc l'ttll;svogen Corp. t. l'f/rodson, 444 U.S. 286, t00 S,Ct, 559, 62L.Ed.zd 490; Astthi Metal tndustry- Ct, v, S'uperior Oot,rl ctf Cal', Solano C4''' 480 U.S. 102. 107 S.Clt. 1026.94 t..Ed.2cl 92. Here, the relevant facts show no "regular ... llow" or "regular coursc" of sales in New Jcrsey, id,, at 1l?, l0? S.Clt. 1026 (Brennan, J', concun'ing in part and concuuing in judgrnent); id', al 122,
10? S.Ct. 1026 (S tcvcns, J., concurring in paft and concurring

accompanieil by the kind

of

sales

effo indicated herc, s

Opinion
Justice KENNEDY announced the judgment of the Court and de livererl an opinion, in which THE CHIEF JUSTICE, Justice

SCAllA,

and Justice

TIIOMAS join'

rn judgment); and thcrc is no "somethng more," such

as

special state-telated design, advcrlising, advice, or marketing, id., aI lll,112, 107 S.Ct. 1026 (opinion of O'C.'onnor, J'),

Whether a person or entity is subject to the jurisrtction of a stato court despite not having becu present in the State either

T,::,i.:irN*tiT

t:'lI'i;l

I-iri:nli;oil l:euidi'$ '.lt c;l,rilrlil olillirral t,i li G'ri;ilrtret'i

\'l

lLt is

APP-6
J. Mclntyre Machinery, Ltd, v' Nicastro, 131 S.Ct, 27BO (20111 180 L.Ed.2d 765, 79 USLW 4684, Prod.Liab.Rep. (COH) P 18,653. at thc timc of suit ot at thc time of the alleged injury, and riespite not having consclrted to the excrcise ofjnrisdicton,

is a question that arises with grat frequeucy in the routinc

coursc of -titigation, Thc rules and standards f'or determining when a Statc does or does not havej urisdiction over an abseut party have been unclear becausc ofdecades-old questions lcft open in '4sal Iattl lnchtstr' Co' v, Superior Courl oJ Cal" Solot'to C7^.,480 U.S. \02, 101 S.Ct, 1026. 94 lr'.Fd'2d' 92
( l eB7).

thc comparry at no time either marketed goods in the State or shippe<l them thete. Nicastto was a plaintiff in the New Jersey lrial court and is the respondcnt here; J. Mclntyre was a <lefendant and is now the pcttioncr.

At oral argutnent in this Court, Nicastro's counsel

of New

strcssed

of thrce prinrary facts in def'ensc Tr. of Oral ,{r'g.29-30' jurisdiction ovcr J. Molntyre. See
Jersey's assertion

Hcre, thc Supreme Court of New Jerscy, relying ilr part on .4.shl, hcld that New Jersey's collrts can exercisc jurisdiction ovcr a I'oleign lnanuf'actuter of a product so long as the mar-tufcturcl' "knclws or leasonably should know that its proclucts arc distributscl through a nationwidc distribution system that might lcad to those products being sold in any of the hfty states." Nicastro v cInl)+'c Aluc:hinetl' Atrrcric:o, Ltd., Z0l N.l. 48, 16,'11 ,987 A'2d 575' 591' 592 (2010). Applying that tcst, the coutt concluded that a

First, an independent company agreed to sell J. Mclntyrers machincs in thc United States. J' Mclntyre itself did ttot sell its maohincs to buyers n this counhy beyond the lI.S'
clistlibutor, and there is no allegation that the dstributor was under J, Mclntyre's control. Seoonrl, J. Mclntyrc officials attended annual onventions for the scrap recycling industry to advertise J' Mclntyre's mchines alongsidc the distributor. The conventions took place in various States, but nevcr in New Jersy.

British manufcturer of scrap tnetal rnachines was subject to jurisdiction in New Jersey, even though at no tirnc had it
advertiseri in, sent goods to, or in any relevant sense targeteci the State.

Thirrl, no tore thatr four trachines (lhc record suggests only one, see App. to Pet, for Ccrt' 130a), including the machnc that caused the injuries that are the basis for this sttit, ended up in New Jcrsey.

That decision cannot be sustaincd. Although the New Jersey Supreme Court issued an extensiv opinion with careful attcntion to this Court's cases and to its own pt'ecedcnt, the "stream of cornrnolce" metaphor carried thc decision far afield. Duc process protccts the defendant's right not to be coerccd cxcept by lawful judicial power, As a general

In additon to these facts emphasized by pctitioner, the Ncw

Jersey Supretne Court noted that J. Mclntyre held both Unitcrl

States and European patents on its recycling teohnology'

rnle, thc exercise of judicial power is not lawful unless the delendant "pttrposcfully avails itsclf of the privilege of
conductng activities within the forutn State, thus invoking the bcrrcfits and prote ctions of its laws," I{unstttt v' Den:lrlo' l-5? U.S 235,253, ?8 S.Ct, 1228,2 L.h(1.2d l2B3 (1958)'
There rnay be exceptions, say, for instance, in cases

201 N.J., at 55, 987 .2d, f 579. It also noted that the U.S. disttibutor "structuted [its.l advoLiising and sales efforts in accorclance with" J. Mclntyrc's "direction and grtidance whenever possible," and that "at least some of the machincs wcre sold on consignmeni to" the distributor' Id., at 55, 5li,
987 4.2d. al -579 (intcrnal quotation rnarks omitted).

In light of

these facts, the New Jersey Supreme Court

Prooess

involving an intentional tort. But thc gcneral mle is applicablc in this products-liability case, and the so-callsd "strean-ot'commerce" doctrine cannot displace it.

cortcluded that New Jersey courts could exercise jurisdiction

ovcr pctitioncr without contravention of the Dne

Clause. Jurisdotion was propor, in that court's view, because the injury occurred n Ncw Jersey; because petitioner knew

or rcasonably should have known "that its products

are

*2786 r
This casc arisss fron a produots-liability suit hled in New Iersey state court. Robert Nicastro scriously injurecl his hand while usng a tnetal-shearing machine manufactured by J. Mclntyre Machinery, Ltd. (J. Mclntyre)' The accident occurrecl n New Jersey, but the machine was manufactured in England, where J. lr{clntyre s inoorporated and operates. Thc cluestion here is whether tho New Jersey courts have jurisdction over J, Mclnfyre, notwithstanding thc fact that

distributed through a nationwide distribution system that mighl; lcad to those proclucts being sold in any of the fifty
stal.es"; an<l bccause pctitioner failed to "take som e reasonable

step to prcvent the clistribution

[r1., at71

ofits products in this

State

"

,98'7 A.2d, at 592.

Both the New Jersey Suprcme Court's holding and its account of what it called "[t]he strearn-of-comtnercc doctrine of jurisdiction," id,, ttl 80. 987 A'2d. at 594, wcre inconect, however. This Court's Asahi decision may bc responsible in

rirlt.;i['r,liex{ <.).:lf

ilri:rnic:r f{cuierrs. [r] :;i]i io ur:ginr,rl l.J,S Gc',rr,-irlnle rr( $,/crli

APP-7
J. Mclntyre Machinery, Ltd' v. Nicastro, 131 S'Ct' 2750 (20111
i0'L.d.2d-765;7-'ijSL'i, 4b4,

r-ixi.Ii:b.ep"cii'"filir-***

part for that court's cn'or rcgarding the strcam of commerce,

and this ca,\e prcsents an opportunity

cra,itv
1 2

r. or"t""";;;;t ' uPl'ur!ur'L)'

II

7 I
456

A.person rnay submit to a state's authority in a numbet

":;,';;y,::';,:,'1",;Ii,ti"::;:ii,:,,T;:'o',"i,i,,'",
2099,'72 L'Ed2d 492(1982)' presence within a State at the tirne strit commences through scrvice of process is another cxample' See ttnhatn' sutru' Citizcnship or domicile ---or, by analogy, incorporation or

US. 694,703,102 S,Ct

The Due Ptocess Clause protects an individual's to be dcprived of tife, liberly, or propelty only by L

rigltt

of lawful power. Cf. Gioccit v, Putrts.vlvania'

399, 403, 86 S.C'^r. 5lB, 15 L.Ed.zd 447 (1966) Q "protectls.] a person against having ilre Governme

lace of business

tbr corporations--also

indicates

rmission to a State's powers. Goodyear Dunlop ions, s.,4. v, Brown, post,p.2854, Each of these
veals circumslances, or a coursc ofconduct,

::r:i:il:J:,:'l;:#ii:,i:iili;
power or a sovcreign to resolve disputcs
procoss thau
Steel

from to inrer an intention to bcnent riom and poper

throup

with respect to the power of a so' prescribc rules of conduct for those within its tl

'lj,:"ff"T]";',';::ir:;':]li';t:
, S

L.t.2

.528 (1985), These examples suport

Ct t'. Citizens for Belter ljnvironnent, 52'' 94. llt" S.Ct. 1003, 140 L.Ed.zd 210 (1998) ("Jt is power to declare the law"). As a general ru
statute ior ju<ticial decree may bincl strangers

Cf. lJtn'rthqm v. Sttperittr Court <tl'Cul',

tct ('outt4t

thc gencral jurisdiction of tlre State's courts and tate to resolvc both matters that orginate within ndthoscbasedonactivitiesandevcntselsewhcre. os Nacion..es tle Colorubict, S.A, v llol.t,466 U.S. ndn. 9, I04 S.Ct 1868, 80 t.Ed.?d 404 (1984) By
rose who

lilj

J:lJ"iriitT:

non judice

a State's that the proccerling in question was not a judicial procecding 9 There is also a morc limited form of subtnission to connected with becausc lawful judicial authority \/as not prosent, and coulcl authority f,or dsputes that "arise out of or arc the activities within the state." hiernolional Shte. Ctt', srtpra, tlrerefore not yield a judgment ")

,'before a person trot

".- -'-^' ' i,"i: )'131,^""in ,",", judge'-mcaning, effect'

a

a courts as . general ntatl.cr.

l'o""

live or operate primarily o*tsi<le a Statc right not to be subjccted to ju.gment in ils

,,

i,n".r

,,such thar the mai,rtenance or sovereign 're offend 'traditional notions olfairplay and strbstnt " It'ttenalknul Shrc Co.v' Ila,shington 326 tl.S' 3 S.ct. l54, 90 L.Ecl. 9-5 (1945) (qrrollng 'illil;cn rt. U.S. 4-s7, 463,61 S.Ct. 339, 85 L.Ed' 278 (1940)

".r"#i

il",r,:T,,.,l

l|:ill

S.Cjt 154' Whce a tlellcndnni'lruryosef ully avails privilege of concluctins aetivirics rvirrrin rc rbrL,i,r

su

;ffii::ir:::i:1i;l]:'il,:inJn
rwer ofan otherwise foreign sovereign to the extent ,r is exercised in connection with the defendant's

notons of fundamental fairness divorced frorn practicecannottlansform ajudgmentrenderedin of authorily into law. As a geireral rulc, the exercise ofpowcr rcquires sorne ct by which th

touching on the State. In other words, subrrission rnracr wirh and activity directed at a sovercign may :cific jurisdiction "in a suit arising out of or rclated fendant's contacts with the forum." lleicoptet'os. 414. n, g. 104 S.Ct. 1i168; soe alsoGoodyear,post,
2g51.

"purosefully avails itself of the privilege of

tnost activities within the fonrm State, thus invoking the bensfits 10 11 The imprecision arising from Asahi' for thc 357 U,S., ar 253,'18 part, results from its statentent of the relation between and protectios of its laws," llanson, S,Ct. 1228, though i sonre cases, as with an intcntional tort, jurisdictior-r and the "stram of commerce." The stream of commcrce, like othcr netaphors, has its deficiences as well the defcndant might well fall within the State's authority by rcasonofhisattempttoobstructitslaws. Inprodtrcts-liability as its utility. It refers to thc movemcnf of goods from

like this one, it is thc defendant's purposeful availment manufacturers through rlistributors to cotsumers, yet beyond that <lescriptivc purposo its meaning is far from cxact. This thatrnakes juriscliction consisttntwith "traditionalnotions of Court has stated that a clefcndaut's placng goods into the f'air play and substantial justice." streatn of conrmercc "with tlre expectation that they will be
cases

\/i,?i'tf

i\.,"'i{*}'t G 2.l)l2. IlliLrrlson leL;icle . l'lr: r::irn icr cric;rral

ll 3.

C<ir+:

l'r

t-nc

tlt \l'/crk

APP.8
J. Mclntyre Machinery, Ltd. v, Nicastro, 131 S.Ct' 2780 (2011) 180 L.Ed.2d 765, 79 US LW46B4, Prod ab.Rep, (CH) P 18,653.,.
purchased by consurrers within the forum State" may indicate purposcful availmcnt. lurltl-Ilde: )/olk^tvagett Corp' v'

more, is not all act of the refendant purposcfully ditccted toward the fomn State." Id', ar112,107 S Ct. I026 (cmphasis
clclctcd; citations omitted).

U.S. 286,298,100 S Ct. 559. 62 L'L:id'2cl 490 ( t 9S0) (finding that expeetation lacking). But that statoment
l;l/r.tor)sorL,444

not atnend the general rule of personal jutisdiction' It merely observes that a del'endanf may in an appropriatc
cloes case bc subject to

Siuce .4.s4i was decidccl, the courts have sought to reconcile thc competing opinions. But Justice Btennan's

12

itsclf an or distributors "seek to serve" a given State's market' ', t 295, 100 S.C't. 559. The principal inquiry in cascs of this sort is whether the defendant's activities rnanifest an intention to submit to thc powcr of a sovereign. In other words, the defenclant tnust "purposofully avaifl itselfofthe privilege of condncting activilics within thc l'onttn State, thus invoking the berrofits and protections of its laws-" llanon, stpra' at 253,18 S,Ct. 1228; Insurntce Corp., '^ttpra, at104'105, 102 S.Ct. 2099 ("[A]ctions of the clefeildant lnay amount to a legal subnlission to the jr.rrisdiction of thc court"). Somctines a ctef'enciant does so by scnding its goorls rathet than its agents' The defendant's transmission of goods permits the exercise

jurisdiction witlout entering the forumuncxccptional proposilion-as where manufactuters

oncuTence, advocating a

rulc based on gcneral notions of

f'airncss and foreseeability, is inconsislent with thc prernises of lawful judiciat powcr' This Court's precedents make clear

that

it is the dcferdant's actions, not ls expectations, that empowcr a State's courts [o subject him to judgment'
The conolusion that jurisdiction

is in the hrst

instance

a tluestion of authority tather than fairness explains, for

example, why the principat opiniorr \n Burrthant "conductcd no independent inquiry into the desilabiliry or faimcss" of the rulc that selice of proccss within a State sufhces to establish ovcr an othorwise foreign defendant' 495 U'S"

iurisdiction

627, I

I0 S.Ct. 2i05 As that opinion

explained, "[t]he

ofjurisdiction only whcre the defendant

targeted thc foruur; as a general rule,

cln be said

to have

view developed early that each State hacl the powcr to hale before its courLs any individual who could be found within its borders." td., at610,1l0 S.Ct 2105' Furthetmorc' were
general fairness considerations the touchstone ofjunsdicliorr'

it

is not enough that the

defcndant might havc predicted that its goorls

will

reach thc

a lack of purposeful availment might bc

excused where

fbrum State.

In Asahi, an opinion by

Justice Brennan for four Justices

outlinccl a different approach' It discarded the central concept of sovercign authorir in favor of considerations of
fairness and f'oresceability' As that corcurrelrce contenrlccl, 'Jutisdiction premised on thc placement of a ptodtrct into the stream of commercc [without motc] is consistent with tbe

carefrrlly crafted judical procedurcs could otherwise protect the defendant's interests, or where the ptaintiff would suffer substantial hardship if f'orcccl to litigate in a foreign forum' That such onsiderations have not becn deemed controlling is instructive. Scc, e.g., World Il/ida l/olksv'a'1ett, 'tltpro"t" 294, 100 s,ct. -559.

Due Process Clause," for "[a]s long as a participalt in this process is awaro that the final product is being uarketed in the forum State, the possibility of a lawsuit there cannot como as a surise." 480 U,S.. at t17' 107 S.Ct. I026 (opinion concurring in part and concurring in judgment)' It was the
prcmisc of the concuning opinion Xhat the defendant's atrility to anticipate suit rendes the assertion ofjurisdiction fhir' In this way, the opinion mado fbrcseeability the touchstone of jurisdction.

13 14

Two ptinciples are implicit in the foregoing

First, personal jurisdiction requres a forum-by-forum, or

sovereign by-sovercign, analysis. The question is whether a dcfenclant has followed a coursc of conduct dirccted at the society or econolny existing within the jurisdiction of a given sovereign, so that the sovereign has thc pov/er to subjcct the defendant to judgment conceming that conduct' Pcrsonal jurisdiction, of cottrse, restricts 'Judicial powel trot as a matter

The standartl set fbrth in Justice Brennan's concurrence was rejeotecl in an opinion written by Justice O'Connor; but the rclcvant prt of that opinion, too, commanded the assent of only four Justices, not a majority of the Coult' That opinion stated: "'fhc 'substantial conncction' between the dcfendant ancl the f'orum State nocessary for a finding of minimum contacts must Qome abor'rt by an action of thc deferrdant purposefully directcci toward the forum State. The placemcnt

of sovcrcignty, but as a matter of indi't'idual liberry," for due process protects the individual's right to be subject only to lawfrrl power. hut'ance Corp, 456 U.S., at 702, I02 S'Ct' 2099. But whether a judicial jurlgment is larvfrrl depends on
whethcr the sovcrcign has aulhority to render t' The second principle is a corollary oftbe first' Because the United States is a distinct soveteigti, a dcfcndanb may in principle be subject to thc jurisdiction of thc oourts of the

L5

of

a *2189

pro<ltLct

into the stream of commerce, without

United States but not ofany particular State' This is consistent wjth the premises and unique genius of our Constitution'

',,,r.fr'-ii;;r.,"frlg; i;'l:.112 [

lril['tsi> f<"ulor:;. Nu olilinl i'rl riinil

I'J

S. Govr:

rrr rr'ti:i tl1'r/t/ o;-l<::

APP.9
J. Mclntyre Machinery, Ltd. v' Nicastro, 131 S'Gt, 2780 (201 1)
180 L.Ed.2d 765,79 USLW
,

Prod.Lib.Rep.

18,653...

Ours is "a lcgal system unprecedentcd in form and design, establishing two orders of govcrnrnent, each with its own rlirect rclationship, its own privily, its own set of mutual rights
ancl obligations to thc people who sustain

it

and ate governed

by it." U.S. Tcrnt

838,

l.'itt'titn-, In<: t' Tlutt'ttlt>n, 514 U S' 779' lrs s.ct, 1842. 13l I-.Ed,2d SS1 (1995) (KENNEDY'

any constitutional concerns that might bc attenclant to that excrcise of power. Sec A'sahi,480 U.S, at I13, I07 S Ct' 1026, n. Nor is it necessary to determine what substantive law might appy werc Cougress to authorize jurisdiction in a feclcral court in Nelv Jersey. See lIansrn,35? U'S., at254,78 S.Ct. 1228 ("The issuc is personaljurisdiction, not choicc of lail'). A sovereignrs legislative authority to rcgulate conduct may prescnt consideratiotrs diffent frotn those presented by its authority to subjcct a dcfendant to judgment in its coutts' Herc the question concems the authority of aNcw Jersey statc court to exerciso juristliction, so it is petitioner's purposeful contacts with New Jcrsey, not with the United States, that
alonc are rclcvant.

J., concurritg). For jtuisdiction, a litigant may havc the requisite relationship with the Unitcd States Govcrnmei.tt but not with the government of any individual State, That would bc an cxccptional case, howcvcr' If thc defendant is a domcstic domiciliary, the courts of its home Statc are
available and can excrcise generirl jr-rrisdiotion. And if anothcr Statc were to asselt jurisdiction in an inappropriate case, it would Lrpsct the lecleral balance, which posits that each Statc subjoct to unlawful intrusion by other States. Furtlenrrorc, f'oreigtr corporations will often targct or conccntrate or *2790 particular States, subjectrlg

lus a sovereignty that is not

16

Rcspondent has not established that J. Mclntyre engaged at

in conducl purposef'ully directed

Now Jerscy' Recall that

them to speoific juristliction in those forums,

respondcnt's claim ofiurisdiction centers on thl'ee facts: The distribtrtor agr'eed to scll J. Mclntyre's machincs in the United
Statos; J.

Mclntyre officials attended lrade shows in several

It lnust be rcmembered, however, that although this case and lsohi bolh involvc foleigrr manufacturers, the untlesirable
Jirstice Brcnnan's approach are no less significant for dornestic procluccrs. The owner of a small Floritla farm might sell crops to a large nearby distributor,
conscquencs

States but not in New lcrscy; and up to four machines ended up in New Jerscy. The British nranufacturer had no office in

of

New Jelsey; it neither paid taxes nor owtred proporty there;

and t neithcr advcrtised in, nor sent any cmployees to, the State. Incleed, afier discovery the trial court found that the "defendant does not have a single contact with New Jerscy short ofthe urachne in qrrestion ending up in this state'" App' to Pet, for Cert. 130a. These facts may reveal an intsnt to
serve thc U.S. market, btit they do not show that J Mclntyre purposcfully availed itsclf of the New Jersey market'

for exarnplc, who rnight then distribute llm to

grocers

across the country. If foreseeability were the controllirg criterion, the fhrmer could be sued in Alaska or any number

of othcr States' courts without ever leaving town' And thc issue of foreseeability may itself be contested so that
signilcant cxpenses are incurredjust on the prelinrinary issuc ofjurisdiction. Jurisdictional rules should avoid these costs whenever possble.

It is notnble thal ths New Jersey Supremc Coutt appcars to agree, for it coulrt "not hnd that J. Mclnfyre had a presence or minjmum contacts in this State-in any jurisptudcntial
scnse-that woud justify a New Jersey court to exercise jurisdction in this casc." 20l N.J., at 61, 987 A'2d. at 582' '*2791 could be Tire court nonetheless held that petitioner sued in New Jerscy based on a "strcatn-of-commerce theory ofjurisdiction." Ibid' As discussed, howevet, the stream-oI'colnnlorce metaphor canllot supcrsede either the mandate of the Due Process Clause or the limits on judicial anthorif that Clausc ensures, The New Jersey Supreme Court also cited "significant policy reasons" to justi/ its holding, including the State's "strong iuterest in protecting its citizens from defective products." ft/., af 15,987 A.2ct' at 590' That interest is doubtless strong, btrt tho Constitution ommands reshaint before discarding liberty in the name of expediency'

The conclusion that the authority to subject a defendant to judgment depends on purposefu availment, consistent with
Jrstice O'Connor's opinion

in

4'sah, does not by itself rcsolve

many difficult questions of jurisdiction that

will

arise in

particular cases. Thc defendaft's conduct and thc cconomic realitics of the rnarket the defendant seeks to serve will diffcr across cses, and judicial exposition will, in common-law fashion, clarify the contours ofthat prnciple'

ilI
In this case, petitioner direoted marketng aud salcs efforts at the Unted States. It may tre that, assuming it were otherwise empoweretl to legislatc on the subjcct, the Congress could authorizc the exercise ofjurisdiction in appropriate coutts'

That circumstance is not presented in this case, however, and t is neither necessay nor approprate to address here

r.l/*.,rii;rr,,rl,jc1'

A'01 'l ttrii'nsot-r lle

trie

rs Nil

ciairv.:

r: ori.;irrill

I'J

(''c;rnn"re tlI \lor-ks

:.-;

APP-10
J. Mclntyre Machinery, Ltd. v. Nicstro, 131 S'Gt. 2780 (201 1)
180 L.Ed.2d 765, 79 USLW 4684, Prod.Liab'Rep .

(ccH) P 18,653...
Arnerica willing to buy thern; and (3) representatives of the Rritish Manufacllt'er attended trado shows in "such cities as Chicago, Las Vegas, Ncw Orleans, Orlando, San Dicgo, and San Francisco." Id., at 54-55. 987 4.2d, at -578 579. In ny vicw, thesc facts do not provicle ontacts between the British

Duc process protects petitioner's right to be subject only to lawful authority. At no tirne did petitioner engage in any activities in New Jersey that revcal an intent to invoke or
beneht frorn the protection of its laws. New Jersey is without power to acljudge the rights and liabilitics of J. Mclntyre, and its exercise ofjudsdiction would violate dtte process. Thc contrary judgment of the New Jersey Supreme Court is
Rever:ed,

firm

ancl the Statc ofNcw Jersey constihrtionally sufficient to support New Jersey's assertion ofjurisdicton in this case.

12792 None of oru precedents finds that a single isolatcd

sale, even ifaccornpanied by the kind ofsales efTort indicatcd

Justice BRIYF,R,

with whom Justicc ALITO joins,

hcre, is sufficicnt. Rather, this Court's previous holdings

suggest thc contrary, Thc Court has held that a singlc salc to a customer who takes an accidcnt-causing productto a <lifferent Statc (where the accident takes place) is not a suffioient basis for asserting jurisdiction. See IltrrId-lYide l/o|lcnva,gen Corp' v. Woodson,444 U.S, 286, 100 S.Ct. 559, 62 I-,F,d.2d 490 (1980). And thc Coutl, in separate opinions, has strongly suggested that a single salc of a product in a Stato does not

concurring in the juclgrnerrl,

The Suprcrnc Court of New Jersey adopted a

broad undcrstanding of the scopc of personal jurisdiction bascd on its vicw that "[t]he ncreasingly fast-paccd globazation of thc world cLronomy has removed nationa borclers as barriers to trade." Nicastro t,. l,lt:lu,re Aachinetl, Amcrk:a, Ltd 201 N J 48.52,98'14.2d 57-\, 577 (2010). I do not doubt
,

that there have been many rcccnt changcs in commercc nd commrurication, many of which are not anticipated lry our precedents. But this case cloes not preseut aly ofthosc issucs.

I think it unwise to announce a rule ofbroad applicability wiihout fi ll considerati on of thc mo dern-day consequenes.
So

constilute an adequatc basis for asscrting jrtriscliction ovcr an out-of-slate clefendant, evcn if that defcndant places his goods in thc stream of comrnercc, fully aware (and hoping) that such a sale will take place. See .4sol lvle'tal Incluslr.v' Co, v. Superior Ooll ol'Cal,, Solano Ct,v-,,480 U.S. 102, l1l. 112. I07 S.Ct, 1026, ()4 L.Ed.2d 92 (1981) (opinion

In my view, the outconle of this case is determined by our precedelts. Based on the facts found by the New
Nicastro liled to meet his burden to demonstratc that it was constitutionally proper to exercisc jurisdiction over petitioner J. Mclnlyre Machincry, Ltd. (British Manufacturcr), a British firn that manufactures scrap-metal machines in Great Britain and sells them through an indcpcndcnt distributor irr the United States (American
.Tersey courts, rcsponclent Robert

of O'Connor, J.) (rcquiring "something morc" than sintply placing "a product into the sfeam of commerce," cvcn if defendant is "awar[e]" that the strcan "may or will sweep the ptoduct into the f'orum State"); id., at 7 17, I 07 S.Ct l 026
(Brennan, J., concurring in part and concuuing in judgment) (jurisdiction should lie where a salc in a Stte is part of

"the regular and anticipatcd flow" of commerce into the Stato, but not where that sale is only an "edd[y]," i,e,, an
isolateel occurrence); icl., at 122,107 S.Ct. 1026 (Stevens, J.,

Distributor). On that ba.sis, T agree with the pluralily that the contrary judgmeut of thc Suprerne Court of New Jersey
should be rcvcrsecl.

concuuing in part and concurring in judgment) (indicating that "the volume, the value, and thc hazardous charactcr" of a good may afl'ect the jurisdictional incuiry and emphasizing
Asahi's "regular coursc of dealing").

In asserting jurisdiction ove the British Manuf'acturer, tlte Supreme Cout of New Jcrsey relied most heavily on
tluee prirnary facts as providing constitutionally sufficient "contacls" with New Jcrscy, thereby rnaking it fundamcntally fair to hale the British Manufacturer before its courts: (1) The Amerioan Distributot or one occasion sold and shipped one machnc to a New Jersey customer, uarnely, Mr. Nicastlo's employcr, Mr. Curcio; (2) the British

Llere, the relevant facts found by thc Ncw Jersey Suprcme Court show no "regular .., flow" or "regular coLrse" of sales in New Jersey; and there is no "something more," such as special statc-rclated design, advertising, advice, marketing, or anything else. Mr. Nicastro, who herc bears the burdsn of ptoving urisdiction, has shown no specific effort by the British Manufacturer to sell in New Jcrsey. He has introduced

no list of potential New Jcrsey customers who miglrt, for

example, havc regulatly attcndcd trade shows, And he has not olherwise showrt that the British Manufacturer "purposefully avail[ed] itself of the privilcge of conducting activities"

Manufactulcr pcnnittcd, indeed wanted, its indcpendent American Distributor to scll its machines to anyone in

within Ncw Jerscy, ot that

it

delivered its goods

in

the

",'';r;:1ifi'i.hltr?ll

!);:A'j2 'l-1rirlirrn iQr,:uisr;, l.Jc cinint

ir-r

oriinai l,l

Gl0',roilliItQnt V!/or[(sj

rt

APP.I1
J. Mclntyre Machinery, Ltd, v. Nicastro, 131 S.Ct' 2780 (2011)
180 L.Ed.2d 765, 79 USLW 4684, Prod.Liab.Rep.

(ccH)P

18,653,.,

stream of commerce "with the expectation that lhey rvill be purchased" by Ncw lersey uset's. Vtkrld -I[ide ltol]isu'ogan, supra, at 29'7-298, 100 S.Ct. 559 (intcrnal quotation marks omitted).
There may well have bcen othet facts that lr4r' Nicastro could havc demonstrated in support ofjurisdiction. And the dissent

approach adopted by the New Jcrsey Supreme Court ancl urged by rospondent antl his amici. Uder that view, a producer is subject to jurisdiction for a protluctsliability action so long as it "knows or reasonably should know that its products are tlistributcd through a nationwidc distribution system that mght lead fo thosc products being sold in any

of the fifty statcs." 201 N.J.,

consi<lels

some of thosc facts.

See

posd at 2795 - 2796

76 :77,987 A.2tl' nt 592 (cmphasis added). In thc context of this case, I cannot agree.

tt

(opinion of CINSBURG, J.) (dcscribing the size and scope of New Jcrsey's scrap-metal busine ss). But the plaintitTbears thc burdcn of establishing jurisdiction, and here I would take the lhcts precisely as the Ncw Jcrsey Suprem Court stated
them. Insurut'tce Corp of Irelonl v. (inqngnie des Baurtes de Guinee,4s6 U.S. 694,'109,102 S.Ct. 2099,72L'Et.2d 492 (1982); Bfukett v. Continettal .4irlinas, lnc',164 N,J' 38.71^

^.2d, at 578-579; App. to Pet. for Cert. l28a-137a (trial court's

"rcasoning and finding(s)"),

15t A.Zd

^538,

557 (2000); sec 201 N.J., at s4-56, 98?

F'or oue thing, to adopt this view would abandon thc heretofore acceptcd inquiry of whether, focusing upon thc relationship betwecn "the dcfendant, fhe forutn, and thc litigation," it is tair, in light ofthe defcndant's contacts wllft lhat forum, to subject thc defcndant to suit there. Shalfer v. Heitner, 433 U.S. 186,204,97 S.(1. 2569, 53 1. Ed.2d 683 ( 1 9?7) (emphasis added). It woukl ordinarily restjurisdiction
instcad upon no morc than the occut'l'ence of a product-based accidcnt in the forum State. lJut this Court has rejectcd thc

Accordingly, on thc record present here, resolving this case rcquircs no lnore than adhering to our precedents.

notion that a defendant's anrenability to suit "travel[s.] with Lhe chattel," Il4trld-lllide tr/olksr'vaen,444 1l S , at 296' 100 s.cr.5-59.

II
I
would not go fufther, Becausc the incident at issue in
the factual record lcaves many open qucstions, this is

For another,

cannot reconcile so automatio a nrle with the constifutional <lelnanrl for "minimum contacts" and

this case does not implicate modcrn concerns, and because

"purposefufl] availnent]," each of which rest upon a particular notion of dcferdant-focused faimess. Icl.' at29l,
297,100 S.Ct. 559 (internal quotation marks omitted), A rule like the New Jcrsey Suprcme Court's would permit every State to assertjurisdiction in a products-liability suit against any dorncstic mauufacturer who sells its products (made anywhcre in the United States) to a national distributor, no
matter how large or stnall the manufacturer, no mattcr how

*2193

an unsuitable vehicle for making broad ptonouncemcnts thal refshion baso jurisdictional nrles,

A
The pluLality seenrs to state strict rules that limit jurisdiction whcre a defendant does nol "inten[d] to submit to the power

distant the I'orum, and no matter how f'cw the number of items that enil up in the particular forum at issue' What might appear fair n the case of a largc n'ranufacturer which specifically seeks, or expects, an equal-sizod distributor to sell
its product in a distant Statc might seemunfair in the oass of a snrall manufacturer (say, an Appalachian pottcr) who sells his

of a sovereign" and canot "be said to have targeted the

fonm," Ante, at 2788. But what do those standards mcan whcn a company targets the world by selling products from its Wcb site? And does it malter if, nstead o1'shipping thc products directly, a company consigns the products through an intermediary (say, Amazon-corn) who then receivcs antl firlfills the ordcrs? And what if the company markets its products through popup advertisemonts that it knows will be vicweri in a forum? Those isstles have serious commercial consequonces but are totally absent in this case.
B

product (cups and saucers) exclrrsively to a large distributor, who resells a sngle item (a coffee mug) to a buyer lom a <listant State (tlawaii). I know too littlc about the range of these or in-bctween possibilitics to abandon in favor of the more absolute rule what hs previotlsly been this Coutl's less
absolute approach.

But thougtr

I do not agrec with the plurality's seemingly shict no-jurisdiction rule, I atn not persuaded by the absolute

Furthcr, the fact that the defendant is a foreigrr, rather than a domestic, manutcturer nrakcs thc basic fairness of an absolute *2794 rule yet more uncertain' I am again less certain than is the New Jersey Supreme Court that the nahue

r;',r:,,.[.rri,ir]cNt

O:2"j: l"lrr:rrison llsuiil;. No cl:ilrr tei .trittirrcl l.l

(:lc-.ve;rl

tlrtcnt Wrlrks

'11

APP.12
J. Mclntyre Machinery, Ltd. v. Nicastro, 131 S.Gt' 2780 (2011) lu L.tro.o /b, /Y uLVv +o0+,

Lrao.Kep. (uun)

r,

b3

of international commerce has changed so signif,rcantly as to require a new approach to pcrsonaljuisdiction.

It may be that a latger firm can readiy "alleviate t}re risk of buldensome litigation by procuring insurance, passing thc cxpecte<l costs on to customers, or, if the risks are too
great, sevcring its connecticrn with the Statc." ll/orld-IIide l/olksv,a]en, .\'upro, irl297 , 100 S.Ct. -559. But mattufacturers come in many shapes and sizcs. It may be fundamentally

foreign industrialist seeks to develop a market in the United States 1'ot'nrachines it manufactures. It hopes to derive substantial rcvenue fi'om sales it makes to United States .Where purchasers. iri the Untctl States buyers residc docs matter to this manufacturer. Its goal is simply to sell as not
much as t can, wherever it can. It excludes no region or State om thc market itwishes to reach, But, ail things consicered, it prclers to avoid products liability litigation in tho Uniled
States.

unfajr to lequirc a small Egyptian shrt nraker, a Brazilian manufacturing cooperative, or a Kenyan coffce farmer, sclling its products tlu'ough intemational distributors, to respond to products-liability tort suits in virtually every State in thc United States, even those in rcspect to which the f'oreign film has no conncction at ail but the salc of silgle (atlegedly defcctive) good. And a rulc likc the New
Jcrsey Supterne Court suggests would require every product manufactureL, large or srnall, selling to American distributors

To that end, it cngages a U.S. distributor to sh its

machines stateside. Has

it

succeeded

in

escaping pclsonal

jurisdiction in a State where onc of its products is sold and causcs injury ol even dcath to a local user?
Uncler this Ccrurt's pattunatking precedent it Inlenalional Sfu.tc Cct, t, Wclshtngtrrt, 326 LI.S 310. 66 S.Ct. 154' 90 L,Dct. 9-5 (194-), and subscquenl decisions, one would expect
ths answet to be unetlttivocally, *2795 'No," But insteaci, six Justiccs of tltis Court, in divergent opiniotrs, tcll us that

to understand not only the tort law of every State, but also thc wi<lc van'auce in the way courts within diffcrent States apply that law. See, e,g., Dept. of Justice, Bureau of Justice
StatisticsBullctin, TortTrials and Verdicts in Large Counties, 2001, p. l1 (reporting percentage of plaintiff winners in tort trials among 46 populous oounties, ranging from 17,9% (Worccster, Mass.) to 69.1% (Milwaukce, Wis.)).

the manufacturer has avoided thc jr.rrisdiction of our stat

courts, except perhaps in States where its products are sold in sizeable quantities. Inconceivable as it may have seemed ycsterday, the splintered majoLity today "turn[sl thc clock back to the clays before modcrn long-arm statutss when a manufaclurer, to avoid bcing haled nto cotttt whcrc a user is injured, need only Pilatelike wash its hands of a pro<luct

c
At a minimum, I would not work
such a change to the law

by havirg independent distrilutors market it." A Map Out of the Pcrsonal Jttrisr.iiction I-abyLinrh, 28 U.C.
Davis L.Rev. 531. 555 (1995),

.Weintraub,

in the way either the plurality or tire New Jersey Supreme

Court suggests without a bettcr understanding ofthc rclevant

I
On October
2001, a throe-ton metal shearing machine scvered four fngers on I{obcrtNicastro's right harld' Nicash'o \,, Mt:Inl,(i Machinet'v' Anrcrt:tt, I'|d.,201 N J 48, 53. 987

ontemporary commecial circunstances. Iusofat as such

considerations are relevant t0 any change in preseut law, they n.rght bc presentcd in a case (unlike the present one) in rvhich

ll,

the Solicitor Gencral participatcs. Cf. Tr, of Oral Arg, in

Gootlyeur Dunlop Tres Operations, S., v, Brown, O.T.2010' No, 10-?6, pp. 20-22 (Government declining invitation at oral argumcnt to give its views with respect to issucs in this
case).

,,\.2d 575, 577 (,2010)i see App. 6a'-8a (Complaint). A.lleging that the machine was a dangerous product defectively

This casc presents no such occasion, and so I agan reiterate that I woulcl adhcre strictly to our preccdcnts and the limited facts found by tho New Jersey Supreme Court. And on those grounds, I do not think we can find jurisdiction in this case. Accordingly, though I agrec with the plurality as to the outcome of this oase, I concut: only in tho judgmett of that opinion and not its reasorring.
Justice GINSBURC, Justice I(ACAN

madc, Nicastro sought compcnsation from thc machine's manufacluLcr, J. Mclnty'e Machinery Ltd. (Mclntyrc UK). Established in 1872 as a United Kingdom corpotation, and headquarterecl in Nottingham, England, Mclntyrc UK "designs, develops and manufactures a complete range of cquilrrnent for metal recycling." Id., zf 22a, 33a. The conrpany's procluct line, as advertisecl on Mclntylc UKs Web
site, includes "metal shears, balers, cable and can recycling cqupmcnt, fumaces, casting eqr.ripment ancl .,. the world's best aluminium dross processing and coolinS syslem." Id',
at 3 1a. Mclntyre UK holds both llnited Statcs and European patents on its technology.201 N.J., at -55, 987 A,2d, at 519;

with whom Justice SOTOMAYOR and

join, dissenting.

App.36a.

'i'',iliiiit',iiN'11:rt'

.t'1t.i1',: f honrsrri

tiriiors

i'.li::

i:ieim l.o trritirlil U.. Gcr.;crrltlrc!il1 itvoi'i!ti

tL

APP.13
J. Mclntyre Machinery, Ltd, v' Nicastro, 131 S'Ct.2780 (2011)

60 t:En.zdaf 7e s LW 4664; Prod-----Re.'(H

-"8;6rt.'.'-

- -*-

"

The machine that injured Nicastro, a "Mclntyre Model 640 Shear," sold in the llnited 43a, and features a "tnassive cutting capaciry," id.' at 44a. According to Mclntyre UK's product brochurc, thc machino
Statcs

for $24,900 in 1995, id,, tt

"r,rse[d] throughout the [w]orld." 1id' Mclntyle UK represented in the brochure that, by "incorporat[ing.] off-theshclf hydrarLlic parts fron suppliers with international sales outlets," the 640 Shear's design guarantccs serviccability "whcrevet' [its cr.rstomers] may be basc<1." Ibd' The instruction manual advises "ownerfs] antl opcrators of a

is

Mclntyre tJK representativcs atLended every ISRI oonvention frorn 1990 through 2005. Id., at l14a l15a' These annual expositions wete held in diverse venues across th United Slates; in addition to L,as Vegas, convcntions were held 7990-2005 n New Orleans, Orlando, San Antonio, and San Francisco. Ibid. Mclntyre IJK's presidcnt, Michael Pownall, regularly attcndc<i ISRI conventions.Ibid- He attended ISRI's Las Vegas convention thc yeat CSM's owner first learned of, and saw, thc 640 Shear. Id., at'78a-79a, 175a. Mclntyre UK exhibited its proclucts at ISRI trade shows, the company acknowledged, hopng to tcach "anyone interested in the rnachinc frotn anylvhere in the United States." Id., at l6la.

640 Shcar [tol rnake themsclves aware of fapplicable health and sal'cty rcgulations]," inclucting "the Americzul National Standards Institute Regulations (USA) for the use of Scrap Metal Processing Equipmcnt." Id., at 46a'

Although Mctntyre UK's U.S. salcs fgures arc not in the

record, it appears that for several ycars ir the I 990's, earnings f'om sales of Mclntyre UK products in thc United States "hafrll been good" in comparison to "fhc rest of thc world'" Itl,, at 736a (Lettel from Sally Johnson, Mclntyre UK's

Nicastro operated the 640 Shear in the course employment at Curcio Scrap Mctal (CSM) in Saddle Brook, New Jersey. Id., aT7a,43a. "Ncw Jersey has long bccn a
his hotbed ofscrap-metal businesscs .."" See l)rakc, The ScrapHeap Rollup Hjts Ncw Jersey, Business News New Jersey, June 1, 1998,

of

p. l. In

proccsscd 2,013,730 ton.s

2008, New Jcrsey recycling facilities of scrap iron, stccl, alutninum,

anci other mctals- -more tltan any other State-ouacing Kcntucky, its nearest compefitor' by neatly 30 percent. Von

Managing Dircctor, to Gary and Mary Gaither, officers of MclrLlyre UK's exclusive distributor in the United States (Jan. 13, 1999)). In response to intcrrogatories, Mclntyre UK stated that its commissioning engineer had installed the company's equipmcnt in sevral States-lllinois, lowa,
Kentuoky, Virginia, and Washington. Id., aL lt9a.

Haarcn, Thernelis, & Goldstein, The State of

Anrerica, BioCycle, Oct. 2010, p. 19.

Garirage in

CSM's owner, Frank Curcio, "first heard of [M.clntyrc UI('s.]

machine while attcncling an Institute of Scrap Metal Industries t QSRI) I convention in Las Vegas in 1994 or 1995, where

From at least 1995 untl 200i, Mclntyre UK retained an Ohio-based company, Mclntyre Machinery America, Ltd. (Mclntyrc America), "as its exr:lusive distributor for
the entire Unitd States." Nicu'slro v Mclnt.'re t'1athinery 92, 104 Atnerit:o, Lrd., 399 N.J.Super. 539, 558, 945
(pp.2008).

[Mclntyre UK] was an cxhibitor." App. 78a' ISRI "prcscnts the worlcl's largesl scrap recycling industry trade show each year." Id., at 47a. The event attracts "owncrs [and] managers of scrap processing companies" and others "interested in sceing-an<l purchasng-new equipmcnt." Id,, ar 48a49a' *2796 According to SRI, more than 3,000 potontial buycrs ofscrap processing and recycling equipment altend its annual conventions,'rimarily because th[e] exposition provides
thcm with the most comprehensive indushy-related shopping experience concentrated in a singlc, convenicnt loctlion." Ll., at4Ta.F,xhibitors who are ISRI members pay $3,000 for l0'

^.2d ? Though similatly nalned, the two companies

wore separate and indepcndent entities with "no commonality

of
at

ownership or management." Id., at 545, 945 A'2tl' 95. Tn invoices and other written communicalions,

Mclntyre America described itself as Mclntyre UK's national distributor, "America's t,nk" to "Quality Metal Processing Equiprnent" from Hngland. App. 43a, 7 8a.

Mclntyre America filed fbr barkruptcy in 2001, is

no Longer opcrating, and has not participated ill this lawsuit. Brief fi.r Pctitioner 3. After "the clcmise of . Mclntyre Arncrica," Mclntyre UK authorized a Tcxsbased company to serve as exclnsive United Stttca distributor of Mclnlyre UK shears. App. 52a-53a.

x 10'booth

space.

1d,, at48a49a.l

New Jersey is home to nearly 100 iSRI members, Scc Instituto of Scrap Rccycling Industries, Inc,,
Mcntber Directory, http://www.isri'org/ imisl 5jrod/ corc/dircctory.aspx (as visited June 24, 2071, and available in Clerk ofCourt's case file).

In a Novembcr 23,1999letter to Mclntyre A'tnerica, Mclntyre UK's president spoke plainly about the manufacturer's objeotive in aulhorizing the exolusive distributorship: "Al1

we wish to do is sell our products in tho [United] States get paidl" Ll,, at l34a' Notably, Mclntyre America

-and
'1'l'l:i1r,"+"viel

ii)210'1? i'l',(lrrior

fi.t[*rs Ni;

i:lrrn

tl

orlin;:l U $. (tl,retnrl'Bili

A/ork's

'13

APP.14
J. Mclntyre Machinery, Ltd. v' Nicastro, 131 S.Ct. 2780 (2011)
States (including the territory

was concctrcd about U.S. litigation involving Mclntyrc UK proclucts, in which the distributot had been natncd as defcndant. Mclntyre UK courlseled Mclrrtytc America to rcspoud pcrsonally to the litigation, but rcassured its distlibutor that "thc product was built and designcd by Mclntyre Machinery in the UK anct the buck stops herc there's something t'2191 wrong with the machitte'" -il' at 129 a- -130a. Arswcring jurisdictional intcrrogatorics, kl.,
Mchrtyre UK stated that it had been named as a defcndant

all thc States that constitte thc Nation)

as

it

sought to develoP?

Mclntyre UK resistocl Nicastro's cfforts to dctermile whether other Mclntyrc machines had been sold to
Ncw Jcrsey customers' See i/., at 100a l01a' lVfclntyre

did alorv that Mclrrtyrc Amerjca "may havc resold

prodncts

in lawsuits in lllinois, Kentucky, Massachusetts, and West Virginia, Id,, at 98, 108a, Ancl in corrcspondence with
Mclntyre Anrcrica, Mclntyle UK noted that the manufhchtrer
had products

it purchasecl from [Mclntyrc UK] to a buyer in New Jersey," id., at Il?a, but saicl it kept no record of tbe ultimate destination of machines it shipped to ils distributor, ibid. Aptivate itlestigator cngagedby Nicastro found at lcast one Mclntyrc UK machine, of unspecified type, in use in New lersey, Icl, at l40a144a. But Mclntyre UK objectcd that the irrvestigator's report,/as "unsworn and based upon hearsay"'Reply Brief 10. Morcover, Mclntyre UK maintained, no

liablity insttrance coverage. Id',

't

I29a'

Ovcr thc years, Mclntyre America distributed sevclal Mclntyrc UK products to U.S. customcrs, including, in a<Jdition to the 640 Shear, Mclntyro UI('s "Niagara" attd "Tardis" systems, wirc strippers, and can machines' 1d', at l23a-128a In promoting Mclntyre IJK's products at conventions ard dcrnonstration sitcs and in tradc joumal
advertisemenLs,

evidence showed that the machine the invcstigator f'ound in New Jersey had bccn "sold into fthat Statr:]"' Ihid.

II
on which thcre should bc no genuiue debate bear statetncnt at the outsct. Fir$t, all agree, Mclntyre UK surely is not subject to gcucral (all-purpose) jurisdiction in

Mclntyre Arnerica looked to Mclntyre UK direction and guidance, Ibid' To achieve Mclntyre UKs for
objcctive, i.e., "to sell [its] machines to customcrs throughout tlre Unitcd States," 399 N. j.Super., at 548. 945 A'2c1. at 91 , "thc bu,t.r conpanies [were acting] closely in concettwith caoh othct," ibitl, Mclntyre UK never instructerl its di'stributor to avoid certain States or regions ofthc country; rather, as just notcd, the manufacturer cngaged Mclntyre America to attract
customers

A few points

New Jersey courts, for fhat fbrcign-country corporation

hardly "at homc" in Ncw Jersey. See Gottdyear Dunlop Ttres' Operations, S.A. v. Browtl, post, 41 2850 - 2851' 2854 2857. Thc question, rather, is one of specific jurisdiction,

"fonr anyrvlrere in thc United States"' App ' 1 61a'

attcndrtcc arrd exhibitions

In sum, Mclntyrc UK's regular

*2798 between the forum which tums on an "affiliatiofn] ancl the underlying controvetsy." Goodyear Dunlop, post, at 2851 (quoting von Metn'en & Trauhnau, Jr'rlisdicton to
Actjudicate:

at ISRI conventons was surely a purposcful step to reach customers for its prodncts "anywhcre in the United States'" At least as purposeftrl was Mclntyre UK's engagemeut of Mclntyre merca as the conduit for sales of Mclntyre UK's
machines to buyers "thr:oughout the United States." Given Mclnfyrc UK's endeavors to reach and profit from the United States market as

A Suggestcd Analysis,79 Harr'. L.Rev' 1121' (l966) (hereinafter von Mehren & Trautman); internal 1136
see also Goodyear

quotatior marks omitted);

2853 -2854.

Dunlop, posl, aI

a whole, Nicastro's suit, I would hold, has been brought in a forum entirely appropriate for the
adjudication of his claim. Hc alleges that Mclntyre I IK's shear machinc was defectively dcsigned or manufactured and, as a resulf, caused injury to hirn at his workplace. The machine arrived irr Nicastro's New Jersey workplacc not randomly

of the fair and reasorable allocation of adjudicatory authority among Statcs of the United Statcs is present in this case. Ncw Jersey's exercise of personal
Seoond, o issue

or fortuitously, but as a result of the U.S. connections and

dstribution systenr that Mclntyre UK dcliberately arranged On what sensiblc view of the allocaton of adjudcatory
3

jurisdiction ovcr a foreign tnanufacturet whose dalrgerous product causeci a workplace injury in New lersey does not tread on the domain, or diminish the soveteignty, of any sister State. Indeed, along Statcs of the United Statcs, the State in which thc injuty occurred would sccm most suitable for litigation of a products liability tort claim Sec I'lot'ld '
Ioodson, 444 U'S' 286, 291 , 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (if a manufachrrer or dislributor endeavos to develop a martct for a product in scvcral States, it is rcasonable "to subject it to suit in one of 'thicle l/olks'vagen

Corp v'

authority oould thc place of Nicastro's injury within the United States be deemed off limits for his products liability
olaim against a foreign matlufacturer who targeted the United

those States

ifits

aliegedly defective [procluct] has thers been

,irr;;.i1;i,,.,1u1'J',t12 'itoi'nsc.n

llcuteri,

ble ,irl to 0r1inai lJ S, rrr,'ernllentV\/i"kg

);t

APP.15
J, Mclntyre Machinery, Ltd, v' Nicastro, 131 S.Gt' 2780 (2011) P 18,65s... , Prod.Lab.ReP. 180 L.Ed.2d 765, 79 USLW
the source ol injury"); 28 LJ S.Cl $ 1391(a)-(b) (in fedcralcourt suits, whether rcstillg on diversiry or federal-qucstion jurisdiction, vcntlc is propct in the judicial district "in which a substantirl paft of thc events or otnissions giving rise to the (lirtcrna!.ional Soe "cast,,. aside" fictiorrs of"conscnt" and "prcscnce").

Whatever thc state

conscnt

of

acadetric clcbate over the role of

claim occurred"). Third, thc constitutional limits on a state court's adjudicatory ar.rthority derivc frout consideratious of due process, not stte sovet'eignty As the Court clarifect in [nst'anc:c Corp ttf
It'r:lartd t,. Cotttpogte des Botxile"^ cle Gttinett' 456
1

in rnodern jurisdictional tloctrines,4 the plurality's notion that coseRt is thc animatitlg concept draws no suppofi from controlling decisions of this Court. Quite the contrary, the Court lras explained, a fortlm can excrclse
are

judsdiction whcn its contacts with the controversy

suff-rcient;

U'S' 694'

invocation ol a fictitiotrs

ctrnscnt, the Court has

02 S.Ct, 2099,'72 1.,ld.2d 492 (1982):

repeatedly saitl,

"Tre rcstriction on state sovereign pou'er describcd in lI1rld-lttlilc I/olkswagen Corp, '., must be seen as ultimately a trurction of the ndividtral liberty interest preserved by the Due Process Clause, That Clause is thc only source of the personal jurisdiction requirelnent alltl
the Clause itsclf makes no mention of fcderalism concelrs'

unnecessary and unhelpful' See, eg', Brrrger Kirtg, Corp. t', RttLlzetv'it:2,471 U,S, 462, 4'72,105 S Ct' ll?4, 85 f-.[d,2d 52] (1985) (Due Process Clause permits "forum .., to assrt specific jurisdiction ovcr an out-of-stte defendant who has not consented to suit there"); ldcGcrt v. lnternolional Lifc In.s'Co,' 355 U S 220, 222' 78 S'Ct'

is

Furthermore, if the fcderalism concept operated as au in<iependent restliction on the sovereign power ofthe court, it would not. bc possible to waive the persorral jurisdicton
requirement: Intlividual actions cannot change fhe power..s of sover:cignff, although the individual can slrbject himself to powers from which he may otherwisc be protected"' -id'
ar ?03,

199,2 t..Ed.2d 221 (1951) ("lTlhis Court [has] abandoned 'consent,' 'doing business,' and 'presence' s the standard fbr rreasuring the extenl of state judicial powcr over [out-ofstatel corporations."),
5

Conparc Brilmayer, Righls, l-ailrress, aud Choice of l-arv. 9B Yrle L J. 1211, 1304- 306 1 989) (hereinaft er Brilmayer) (criticizilrg as circular jurisdictional theories
1 1

rr

0, 102 S.Ct, 2099.

foundecl

authority"), Perduc, Pcrsorlul Jurisdiction

Sce also Shuffer v. Heiuter' 433 U.S. l8, 204, arrcl rr' 20' 97 S.Cf. 2569, 53 l.,ljrt.2d 83 (19?7) (recognizing that "the

mutually cxchsivo sovercignf of the Statcs [is not] the cerrtral corrccrn of the inquiry into personal jur:isdiction")' Rut sec ailte, 'T 2788 (pluratity opinion) (asserting that
"soveLeign aLrthority," not "fairness," is the "central concept" in dctermining pelsonal julisclicti on).

"fs]ubmissiolr to state ald the Rccr'l0 the llox. 32 Uoston Cotlegc l' Rcv' 5f9' -5i(r '544 in (1991) (same), with Trangsrud,'fhe Fcderal Conrnron [-au' of Personal Jursclicfion, 57 G'ro \Vash' L'Rcv' 849, 884 885 (1989) (endorsing a conseilt-based doctrinc of personal juriscliction), Epstein, Conscnt,

on "conscnt" ot

Finally, in Ittlt:rnaliottrtl Slroe itsell, and decisions thereafter,

Not Power, as thc Basis of Jutistliction, 2001 lJ' Chi' Legal l?orurn 1, 2, 30 32 (urging that "the consont prinoipte neatly cxplans the dynamics ofmany of our jurisdictional rloctrines," but recognizing that in tort
ases, tho

thc Court has made plain that legal fictions,

notably

victim ordinarily should be able to

sue

in the

"prcsence" anrt "implied consent," should be dscatded, fbr

they conceal the actna bases on which jurisdiction rcsts ' See 326 tl.S., ar 3l(r, 318, 6 S.Ct. 154; Hutchin,son v' Cho'e & Gilbert, 45F.2d I 39, 14 I (Cl.A.2 1930) (L.Hand, J') ("nothing is gained by [resort to words thatl conceafl] what we do")' "[Tlhe relationship anrong thc defendant' the forum, and thc ltigation" rlctennines whetber duc proccss permits tho exercise of personal jurisdiction ovcr a rlefendant, Shu/r'

place where thc harrn occurrcd).

.5

2'789 lurality opinion) 278( sce ante, (maintaining that a fotum may be fair and reasonablc, based on ils links to the episotle in suit, yet ofi lilnits because the defcndant has not snbmittcd to the Slatc's authority). The plurality's notion that jurisdiction

But

tt

ovcr foreign corporations depelds upon the defsndant's "submission," ante, ut 278'1 -2'188, seems scarcely

43- U.S

, 204, 97 S.Crt. 2569. and "fictions of implied consent" or "corporatc presence" do not advance thc proper *2799 Btnhqttt inquiry, id., al202,9? S.Ct. 2569 Scc also
't

diffcrcnt fiom the long-discredited fiction of implied consetlt. Jt bears omphasis that a rnajority ofthis Coul's
mmbers do not share the plurality's view'

t). Sq)eor Cotu't of Cal., Cotmt of'.ari 495 U..S. 604. 618, 110 S.Clt. 2105, 109 L,Ed.zd 631 (1990) (plurality opinion)

ilI

'r1,:;:i':1,",,r'{.1(1}lI

O 2t] l:l

'1'lil.;r"t:tr"ri

lcirittg

iritr c;aitri 1o c:ii1tirl:

ll.j

(-:lr:v<;r'rttllr-'rri

\i',i.;

li i;

i:l

APP.I6
J. Mclntyre Machinery, Ltd, v. Nicastro, 131 S,Ct, 2780 l2011l
180 L.Ed.2d

765,79 USLW 4684, Prod.Liab.Rep. (uliH)

l'

cornmetce" formulation. See Conn. Gen.Stat, $

52-

'I'his cse is illustra[ivc of marketing affangenrerts for sales

59b(a) (2011),

in thc Unitecl States comnron in torlay's commercial world.6

A foreign-country manufacturcr

eilgages a U.S. cotnpany to

promote and distribute the manufcfurer's prorlucts, not in any particular State, but anyr,vherc and everywhere in the United Sttes thc distributor can attract purchasers. Thc product proves defoctive and injurcs a uscr in the State where the user lives or works. Often, as here, thc lnanufacturer will have liability insurancc covcring personal injuries oauscd by its

Or, the State Lnight simply provide, as Nev Jersey does, for the exercise ofjurisdiction "consistent with duc process of

law." N,,1. ct, Rule a:a-a)(1) (201 l).8

products. Scc Cupp, Rcclcsignirrg Sncccssot' Liabiliry, 1999 U. Ill. L.Rev. 845. 870-87 I (notng the ready avalability of products liabilily insurance for manufacturcrs and oiting a shtdy showing, "behvecn 1986 and 1996, [suchl insurance cost namrfacturers, on avelage, only sixtccn cents f'or each $100 ofproduct sales"); App, 129--130.

Statc long-arm provisions allow the exeroisc of jurisdiction subject only to a due process lirnitation in Alabama, Arkansas, Calif'ornia, Colorarlo, Gcorgia, Illinois, Indiana, Iolva, Kansas, Kentuo, Louisiana, Maryland, Michigan. Minuesota, Missouri, Nevada, North Dakota, Oregon, Pennsylvania, Puerto Rico,
South Carol ina, South Dakota, Tenncssee, Texas, Utah,

Washington, and West Virginia, 4 C' 'Wligttt & A. lvliller', l.-cderal Practicc & l'roocdttte $ 1068. pp' 577
57B,

n. l2 (.lcl ed.2002).

Last year, the tjnited States irnported nearly

lrillion dollars in f'oreign goods. Ccnsus Burcau, U.S.

Intemational'fale in Goods and Services (,\pr.2011),

'I'he modern approach to jurisdiction over corporations and other legal errtities, ushered inby Inlernational Shot:, gave

p, l,

http://www,census.gov/foreigrr-trade/Press-

Rcleseicurrentjress_release/ft900,pdf (as visited hne 24,201 1, and in Olerk of Court's case frle). Capital goods, such as the metal shear rnachine that injured Nicasho, aocountccl for almost 450 billion dolars in imports for 2010. Id., at 6. New Jerscy is thc fourlhlargest destination for nranufactured commodties impofed into the United States, after Calit'omia,'l'cxas,
antl New York. Id.,

prirne placc to reason and fairness. Is it not .lair and reasonable, givcn the mode of tracling of which this case s an example, to require the intemational seller to defend
at the place its proclucts cause irtjury?9 Do not litigalional

point in and choice-of-law considerations that direction? On what rneasure of reason and farness can it be considered undue to requite Mclntyro UK to defend in
convcnience New.Tersey as an incident of its efforts to devclop a lnarket for its industrial machines auywhere and everywhere in the Unted States?
I2

l0

II

FT 900 Supplement, p.

3.

*2800 When induslrial accdents happen, a long-arm statute in thc State where the injury occurs generally permits assertion of jurisdiotion, upon giving proper notice, over thc foreign manulchrrer. 'ot' cxamplc, the State's statutc rnight provide, as does New Yolk's long-arrn statute, for the "exercise [of] personal jurisdiction over any nondorniciliary.,, who...
"con'rmits a tortious act wilhout the state causing injttry to peson or propofly within the state, ... if he ... expects or should reasonably expect the act to have consequences irr the state ancl derives substantial revenue from interstate or intcrnational commerce." N,Y, Civ. Prac. Law Ann, $

Is not the burclen on

i.

Mclntyre *2801 UK to

defond in New Jersey fair,

e,,

reasonable cost of transacting

comparison to the burden ol to go to Nottirrgham, lngland to gain rccompcnse Nicash'o for an injury he sustained using Mclntyre's proclnct at his business intemationally,

in

workplace in Saddle Brook, New Jerscy?

The plurality objects to a jurisdictional approach "divorccd ltom traditional practice," Anle, 2787. lJut "the fundamental trsnsformation of our national
rccognized, vr'arranls pcrmissible scope of state jurisdiction over f'orcign corporations ancl olher cnlargement

cconomy," this

Couf has

of "thc

nonrcsidents."

2,/cGee v.

Intet nalittnal Life Ins Co., 355

302(a)(3)(ii) (West 2008),

U.S. 220. 222123,78 S.Ct 199,2 l-.lrld.2d 223 (I957)

10

'lhis provision was modeled in part on thc Uniform Intcrstatc and Intemalional Procedure Act. See N.Y. Legislative Doc. 90, Jutlicial Conferencc of the State of Ncw York,

& Tautman 1167 ("[C]onsitlcrations of litigational convenicncc, partjculrly with respcct to thc taking of cvidencc, tend in accident cases to
See von Mehren

llth

Annuul Report 132-147 (1966),

point insistent to the community in which the accitlent occurred,").

Connecticul's long-arm sttute also uses the "derives substantial revcnue from intestate or intemational

'r\,t--;ii;,.v1'.1*ll '.';:.()\2- "i'iri.:r$trl [i-;r.rii.rr; NIL:

lai,r to rtiigini U,f. (,niern 1rt

VVorhr

1e

APP.17
J. Mclntyre Machinery, Lld' v. Nicastro, 131 S'Ct. 2780 (2011)
180 L.Ed.2d 765, 79 USLW
I

, Prod.Liab.Rep.

P 18,6s3... ("lltemational law .,. does nol concem itself with the allocation ofjurisdiction among domestic oourts within a [naiion,] for example, bctween ntiorl and local
courts iu a federal system.").

Historioally, "tort cases werc govetned by the place

where the last act giving rise to a claim occnned-that is, the place of injury," Brilmaycr 1291-7292' Even as many jurisdictions have modificd the traditonal

rulc of /e.v loci cle[icli, the location of injruy continues to bold sway in choice-ot'-law analysis in tort cascs Sec generally Whytock, Ml'th of Mess? lnternntional U.l' l{cv 719 (2009)' Choice of Larv in Acton. 84 N
'a

In

I2

Thc plurality suggcsts thnt thc Due Process Clause might pcrmit a fcdcral dstrict court in New Jerscy, sitting in divcrsity and applying New Jersey law, to
adjudicate Mclntyre IJK's liability to N icastro. See dnte'

sum, Mclntyre UK, by cngaging Mclntyre America to pl'omote and sell its machines in the Unitcd States' "purposcfully availerl itself " of thc United States markct natonwide, not a markel in a single State or a discrete collection of States. Mclnfyre UK thereby availed itself of the market of all States in which its products were sold by its exclusive distrbutor' "1'h[e] 'purposcful availment'
lequirement," this Courf has explained, simply "ensures that a defendant will rrot be haled nto a jurisdiction solely as a result of 'ranclc.rm,' 'forfuitous,' or 'attenuatcd' contacts"' Rurget' King, 411U.S., at 4?5, l0-5 S.Cf. 21?4. Adjudicatory authority is appropriately exerciscd whcre "actions by the defenclant hiz,self" givc rise to the affiliation with thc fonrm' lbi\. How could Mclntyre UI( not have intended, by its actions targeting a national market' to sell products in the fourth largest destination for imports among all States of the United States ard the largest scrap mctal market? See "supra, at 2795 - 2796,2799, n,6. But sce ante, at 2'790 -27q1 (plurality opinion) (manufacturer's purpose l efforts to sell
its products nationwide are "not .'. televant" to the personal jurisdiction inquiry).

2797.It't othet words, Mclntyre UK might be compclled to bcar thc burden of rrvelng to New Jelsey and del'encing itself there under Ncw Jersey's products liability law, but would be entitlcd to fdcrol

at 2790

adjudication ofNicaslo's state-law claim. I sce no basis in the Due Proccss Clause fbr such a cnrious limitation.

Mclntyrc UK

de alt r,ith the United Statcs as a singlc market' most f'oreign manufacturcts, it was concelcd not riith Like the prospcct ofsuit in State X as opposed to Statc Y, but rather

with its subjection 1o suit anywhere in the Unitcd States Sec Hay, J udicia I J trrisdiction Over l-oloi gn-Contttry C orpornte

Defcndants Comments on Reccnt

Case l-aw. 63 Orc. L.Rer''

431,433 (1984) (hereirrafter I-Iay). As a Mclntyre UK olficcr wrotc in n e-lllail to Mclntyre America: "Atncl'icRn lawwho needs it? !" App, l29a-130a (e-mail dated Aprit 26, 1999 frorn Sally Johnson to Mary Gaithor). If Mclntyre UK is answerable in thc United Statcs at all, is it not "perfectly

Courts, both state arrd fedoral, confrofltng facts similar to those here, havc rightly rejected thc conclusion that a manufacturer selling its products across the USA rnay evadc jurisdiction in any and all States, includng the State wherc its rlef'ective product is clistlibuted and causes njury' They havc held, instead, that it would undermine principlcs of fundamental faimess to insulatc thc foreign lanrtfaoturer *2802 ftorn accountability in court at the place within thc Unitcd States where the nranufacturer's products ouscd iniury, See, e.g., Tohin v. Asta PJnrmocettlit:tt[ Prod's ' lnc 993 F.2d 528, 544 (C A..6 1993); A' (Ioerti & (). v, Leonardo,
,

appropriale to pemit the exercise of that jurisdiction "' at the place of injury"? See Hay 435; Degnan & Kane, The Lxcrcisc of Julistliction Ovcr and Enfotccment of'Juclgnrents Against Alicn Defenclants, 39 ltastings LI' 799' 813' 815
(1

988) (notng that "[i]n the itrternational orcler," the Statc that

atd counts is the United States, tlot ts componcnt Statcs, United States is esscntially that thc fair placc of suit within the
a qucstion
I

lS

ofvenuc).

181 Ariz. 56s, 5?3. 892P.2d 1354.

ll62

(1995). r4

"For purp oses of intematonal law and foreign relations,

the scparate identities ofindivdual states ofthe Unioil arc gcneral[y irrelevaut." Bom, Rcflcclions on lurlicial

14

'or a more conletc set

of cxamples, see Appendix,

nfra, af2804-?-806.

Julisdiction in lutcrnational Cases, 17 Ga J, Int'l & Cuurp. I,. 1,3fi (198?). See also I{ines v' Davidottit:, l12 U.S. 5?, 63. 6t S.C1 399. 8s L.ljd 581 (1941) ("Iror local interests thc several Statcs of the Union
exist, but fot natiottal purposcs, embracing our relations

IV
A

with f'orcign rations, wc are but one people,

one

nation, one power.") (internal quotation marks omitted);

l{estatcrncnt ('lhird) of Forcign Relutions Lar'i' of thc UitecL States S 421, Comment/ p. 307 (1986)

While this Court has not consitlered in any prior caso the now-prevalent pattem presented here-a foreign-country

;,,rtr,,i,,;,,jg;{[

li 2012- l-hrrirscl Ilrrtrtrrrl;"

lrjcr r:li.n

ic

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Gtlvniterrt

\.lo Tli:;.

APP-18
J, Mclntyre Machinery, Ltd. v, Ncastro, 131 S.Ct. 2780
180 L.Ed.2d 75,79 USLW 4684, Prod.Liab.Rep. (ccH) P manufacturer enlistilg
a

'2011)
1

U,S. distributor to develop a nlarket

in the United States lor thc mannfachlrer's products-nonc of thc Court's decisions tug against the judgment rnade by
the New Jersey Supremc

this Court, thc injrucd plaintiffhad settled his case and only thc indemnity claim by thc 'laiwanese company against the
Japanese valve-assembly mamrfacturer remaned.

Couf . Mclntyre contends otherwise,

Solttnt) Ct.v., 48(l tJ.S. 102, 107

aittrg I|ltrld-lltide l/olksv'ag:et, and '4sohi Mctol [ndttstrl:

Co.

v Suttt'ior Ctilrt of'Oul,,

S.Cit. |026,94L.F1,2d 92 (t9B7). VLtrld-14'ilc tr/olksw'trgencollcerned dealership that sold solely in the New York market, and a New York distributor who supplied retailcrs in three States only: New York, Connecticut, andNew Jersey. 444 U S., at 289, 100 S.ft. 559. New York residcnts had purchased an

The decision was rot a close call. 'Ihe Court had before it a foreign plaintiff, the Taiwanese manufacturer, and a foreign dcfcndant, *2803 thc Japanese valve-assembly maker, and the indemnification dispute concerned a transaction between thosc parties that occurred abroad. All agleed on the bottom line: The Japaneso valve-assembly manufactuteT was not reasonably brouglrt into the Califol'nia courts to litigate a <lisputc with another tbreign party over a transaction that took
place outside the United Stats

a New York

car

Aucli flom the New York <Jealer and wcrc driving the new vchr:le tluough Oklahoma en route to Arizona, On the road in Oklalloma, anothcr car struck ihe Audi itr thc rear, causing a hre which sevelely burned thc Autli's occupants. Id., at 288, 100 S.Ct. 559 Rejecting the Oklahoma courts'asscrtion of jurisdiction over the Ncw York dealcr and disttibutor, this Court observed that the defendants had donc nothing to scrve the markct for cats in Oklahoma. Id., at295'298, 100 S,Ct. 559. Jurisdiction, the Court held, could not be based
customr3' uniateral act of driving the vchicle to Oklahonra. ld., at29B, 100 S.Ct. 559; see lsahi, 480U.8'^ at 109, 107 S.Ct. 1026 (opinion of O'Connor, L) (IForld l4ride l/olk,swagez "rcjccted thc assertion that a consunter's

Given the conlines of tho controvetsy, thc dueling opinons of Juslicc Brcnnan and Justice O'Connor were har<lly necessary. How the Court wolrld havc "estimate [d] ..' the inconvenience s," see Int e rn ctt i o n q I S h o e, 326 U. S,, at 3 I 7, 66
S.Cr. 154 (internal quotation marks omitted), had the njured is a debatable qrLcstion' Californian originally sued the same wcight to the burdens Would this Court havc givcn ^sahi had those beeu countctbalanced by on the loreign delendant tlte burdens litigating in Japan imposed on the local Califomia plantiffl Cf. Call:r v.,Ioncs,465 U.S 781, 788, 104 S.Ct. 1482, 19 L.Ed.2cl 804 (1984) (a plaintiffs contcts wth the fonrm "may be so manifold as to permit jurisdiotion when it

on lhe

unilatcral act of bringing the defendant's product into the

lbrum State was a sufhcieut constitutional basis for personal

would not exist in lher absence"). In any event, Asahi, unlike Mclntyre UK, did not itse lf seek out customers in the Unitcd States, it engagcd no distributor to plomote its wares here, it appealed at no tradeshows in the United States, and, of course, ithad no Web site adverlising its products to the world.Ivloreover, Asahi rvas a component-pait manutcttrrer wth "little control ovc the tinal destination of its products once they wert: dclvererl into the stream of comrrerce.",4. tibert, 18 [ Ariz., at 5]2.892Ir.2t1, a[ 1361. [t
was important to the Court n lslri that "thosc who usc Asahi components in their final products, and sell those ploducts in

julisdiction over thc defcndant").

Notably, the foreign manufircturer of the Atrdi in World 'I ide Vol lswogtdid not objcct to the jurisdiction of the Oklahoma courts and the tJ,S. importer abandoned ts initiatly stated objcction.444 tJ.S., at288. ancl n.3. 100 S,Ct,559, Andmost rclevant hcre, the Court's opinion indicates that an objection to jursdiction by the rranufachrror or national distributor would havc bccn unavailing. To rciterate, the Court said itt t/ot'ld lVde Volksr'vagen that, when a ranuflacture or distributor ailns to sell its producl to customers in several States, it is rcasonable "to subject it to suit in [any] one of
those States ifits allegedly de1'ective fproduct] has there been the sourcc of injury." Itl., at297,100 S,Ct. 559.

Califomia, [would be] subject to the applicaton of California tort law." 480 Il.S., at 1 15. 107 S.Ct. i026 (majority opinion). To hold lhr Asahi controls this case would, to put it bluntly,
bc dead w.ong,
I'5

A'ahi arose out of a motorcycle acciclent in California. Plaintiff, a California resident injurcd in the accident, sued thc Taiwancse manufacturer of the nlotorcycle's tire tubes,
claiming that defects in its product caused the accident. The fube manufacturer cross-clainted agninst Asahi, thc Japancse maker of the valve assernbly, and Asahi contested the California courts' jurisdiction. By the time the case reachcd

15

The pltrrality notcs thc low volume of salcs in Ncw

Jersey, ante,',tt,2.786,2790

-2791. A $24,900 shearing

machine, horvever, is unlikely to sell in bulk worldwide' rnuch less in any givcn State. By dollar value, the pricc

of a single machinc rcprcscnts a significant srle, Had a mamfacturer sold in Ncw Jcrscy $24,900 worth of flannel shifs, sce Ie/,ror v. Parl htrtties, Inc:.' 7l'7 l'.2d I 120 (C.A.,7 1983), cigarette lighters, see O.lr:a//

!irr.rjtr'litf,'hlt:)i aO.ia':';! lhr:.ir:;l:rr l(r:rrr'l; l'.jr. i;leirn tc rri.it;t:L.iI i.l .$ !llverrrlilr:ll1 !/ili:iiis

'lB

APP-19
J. Mclntyre Machinery, Ltd, v, Nicastro, 131 S'Ct. 2780 (2011) involving a srLbstantinlly local plaintiff, like Nicastto, njured by thc activity of a defendant crgaged in interstate or international traclc; and (2) cases in whch the defcndant is a natural or legal person whose economic activities and
cases

r'. .Scripto, Inc:.. 616 F.2d 191 (C.A'5 1980), or wirerope splices, sec lledritl; t'. I)ailctt Shtii Ctt.,7l'5 F.2d

il55

(C.r\.9 1983), thc Court would presurnably find

the defndant amenable to suit in that State'

Thc Coutl's judgmcnt also puts Unitcd States plaintiffs

at a

disaclvantage

in

comparison

to

similarly situated

lcgal invoLvements are largely home-based, i,e., entities without designs to gain substantial rcvcnue from sles in /B As the attachcd distant markets. See irl., at \16'7-11 69' appendix ofillustrative cases indioates' courts presented with von Mehren and Trautman's first scenatio--a local plaintiff
injureci by thc activity of a manufacturer seeking to cxploit a rnultistate or global market-have repeateclly confirmed that

complainauts clservhere

in the world. Of particular rtote,

within the European Union, in which the United Kingdonl is a participant, the jurisdiction Ncw Jcrsey woud have
cxcroisecl is not at all exceptional' The lutopcan Regulation

juriscliction is appropriately exercised by cottrts ofthe placc where the product was sold and causcd injury.
I

on Jurisdiction and thc Rccognition and tsntbrccment of

Judgmenls provides I'or thc excrcise of specific jurisdiction "in mattcrs rclating to tolt ,,. in the coltrts for the place where the harmful evcrlt occulred." Council Reg. 4412001' Art' 5'

Assigning weight to the local or international stage on whioh the parties operate would, to a considerable

extont, ansiler the concerns expressed

BREYER. S ec in judgment).
ant e,

by

Justioc

tl

21

93

27

4 (op inion concuning

2001 O.J. (L.12) 4.16 Th" European Court of Justice has interpletcd this prescription to authorize jurisdiction cither .,here the harmful act occurred or at the *2804 placc of injrrry. See Handelskwekerij G,J' Bier B'V' v. Mines de
Potasse d'Al;;ace S.
I

A., 1()l6E.C.R, 1735, 1748 7'l49't7

The Regulation replaced the "Europcan" or "Brussels"

Convention

on

Jursdiction and Enforccment of

For the teasons stated, I would holcl Mclntyre UK answerable in New Jorsey for the hann Nicasfro suffered at his worlacc in that State using McJntyre UK's shcaring machine, Whle

Jutlgments in Clivil ancl Cormercial Mattcrs, entered nto in 1968 by the original Commou Market membcr statcs. Itt the interim, the Lugano Convention "extended

tlissent from the Court's judgment,

takc heart that tlic

thc Brusscls Convention schemc to [European Frec

Tradc Associationl conntrics." Clennont & Palmer, ExoL'bitmt Jrrriscliction, 58 Mc. L'Rev. 414,491, t'.82
(200(r,

plutality opnion does not spcak for the Court, for that opinion would take a giant step away om the "notions of far play and srrlrstarrtial justcc" underlyiug Inlernrtlionul Shrc' 326
U,S., at 316, 66 S.Ct. 1-54 (internal quotation marks omitted)'

APPENDIX
Illustrative cases upholding exercisc of personal jurisdiction over an alien or out-of-state corporation fhat, through a distributor, targetcd a national market, including any and all
States:
l!)

11

[,-or a colcise comparison of the lluropean regirne and this Court's decisions, scc Weintraub, r\ lr4ap Olrt oIthc Personrl Jrriscictiorr Labyrirrth. 2B li C. Davis L.R(,v, 53

t, 550 5s4 (l 995).

19
V
The cornmentators who gave namcs to what we now call "gcncral jurisciiction" and "spcc ihc jurisdiction" anticipated that when the latter achieves its full growth, considerations of litigational convcnience and the respective situations of
the parties would determine when it is appropriatc to subject

'l'he listed cuses are by no menns exhaustive ofdscisions fitting this pattern. For ad<iitional citations, see Bricf for Public Citizen, lnc',as Amicus

Cuiue 16,n' 5'

Clune v. Alinah '411, 233 I'-'3d 538, 544 (C',{.8 2000)

(wrongful-death actjon against the Swedish manufacturcr of a construction hoist that allegedly caused a workplace dcath in Missouri; holding the maflufacturer amenable to suit in Missouri, the Lighth Circuit statcd: "Although we can imagine a case whcre a forcign tnanufacturer selects discrete regional dishibutos for the prlrpose of penetrating thc
markets in some states to the gxclusion of othrs, that situation

a defendant to trial in the plaintiffs commudty, See von Mehrcn & Trauflnan I166-1 1?9. Litigational considerations inchrde "thc convenience ofl witnesses and the ease of
ascertaining the goveming law '" Id', at 1 1 68-1 1 69. As to the parties, courts woud diffetently appraise two situations: (1)

is not before us." In this

casc, the foreign manufacturer

'tnrt;:ririiir,,,jf.ltt

!;',1tt^t2.

'fhrrtsrrrl i+rilt-rr:; No <;i;itrt i.; i:ri1:rri:l

i-/

,l, tcvrnll'ii;r'i lifi'l':'s,

1:,1

APP-20
J. Mclntyre Machinery, Ltrl. v, Nicastro, 131 S'Gt, 2780 (2011) Lab.Rep. (cCH) P 1 180 L.Ed.2d 765,79 USLW4684,

had "sncccssfully employ[ed] onc or two distributors to United Statesl,] *2805 intendfing] to reap cover the
[entire]

rope splice manufactured in Japan; holding the Japattese manufacturcr amenable to suit in Oregon, the Ninth Circuil
noted that the rnanufacturer "performed a fbrunr-related act when it produced a splice that it knew was destinecl for occangoing vessels serving United States ports, including those of Oregon").

thc bcnefit of sales in every state whcre those clistributors rnarket." Vy'cre the court to conclude that the manufacluer "did not intend its products to flow into Missouri," the court "would bc bound to the oonclusion that the [manrrfachrr'er] ditl not inten<l its produsts to flow info arzy of the Unite d Statcs.")'

Osv,alr

I(ernan t,. I,trz-Hct.littgs, lnc., 175 F'3d 236, 242 244 (C.4.2 1999) (products liability action against the Japanese ruanufacturer of an allegedly defcctive stamping press that causcd a worlace injury in Ncw York; holdirrg the manufacturer amenable to srt in Ncw York, the Seconrl
Circuit stated that an "exclusive sales riglrts agrecment" betwecn the Japanese manufoturct and a Pennsylvania
distributor "contcmplates that [the distrbutor] rvill sell lthe manufacturer'sl machines in North America and throughout thc world, scrv[ing] as evidence of [the manuf'achtrer'sl attempt to serve the Ncw Yotk tnarket, albeit indircr:tly")' Bcl'rnc v. Rich Bros. lnterslate Distl' Firetvorlu Oo.,

Scril,tto. lnr:., 616 -.2d l9l' 200 (C'A'5 1980) (products liability acton stemnring from an injury plaintifT

v.

sustained in Texas when using a ci6arette liglrter macle in Japan; holding tho manufactut'er atnenable to suit in Texas, the Ffth Circuit noted that thc manufacturcr "had every
reason to belicve its product would be sol<l to a nation-widc

nrarket, that is, in any or all states")'

.Sfl'

r,, L,

Geismar,

A', 815

F.Supp.

904'

90'1

(E,D,\ra 1993), afl'd on othsr grounds, l6 F.3d 411 (C A4 1994) (action by worker injured in Vitginia while using a railcutting saw manufactured by a French co$)oration; holding tl.re manufacturer atnenable to suit in Virginia, the Distriot Cout't noted that thcrc was 'ino evidelrce of any attcmpt " to

25 l.3d 610,613-615 (C'A'8 1994) roducts liabilitv

sut against a Japanese ftreworks lnanufacturcr fbr injuries sustaincd in Nebraska; Eighth Circuit hctd the manufacturer amenablc to suit in Nebraska, although the nanufcturer had no distributor or sales agents in that State, did not advcrtise in Nebraska, and clairned t wns unaware that its distributors sold products there; Court of Appcals statcd: "In this age of NATA and GATT, one can expect I'urtlrcr globalization

limit th[c] U.S. rnarketing stratcgy to avoid Virginia or any

other particular statc").

*2806 Fel,'t,, Conav*ay

Ptocen^sittg Dquipment Cr'', 738

F Srrpp. 91':., gl9-t)20 (E.D.Pa.l990) (personal injury suit against the Dutch manufacturer of a poultry proccssing machinc that allegedly catrsed injury inPenlrsylvania; holding

the manrfacturer amanable to suit iu Pennsylvania,

District Coutt obscrvcd that lhe manufacturer "clcarly

the and

of conlmcrce, and it is only reasonable for

companies

that riistributc allegcdly defective products through regional dishibutors in this country to anticipatc bcing haled into corrt
by

plaintiffs in their home statcs.').

purposefully used fdistributots] to dcal in the intcrnational market for poultry processng equiprnent" and was "wcll aware that ifs ecuipment was being sold for use in the United
States, including Pennsylvania")'

'J'tltin v. Astrt Pharnat:culical Ptods., lttt:

544 (C.4.. t993) (proclucts liabiliry action agairrst

Dutch pharmaceutical manufacturcr

'

993 F.2ct 528'

the

Scctnlan

of a drug

alleged to

Nortna Prolektit [:'abrk, 345 F Supp. '292. 293 (D.lvlont I 972) (products liability action occasioned by defect

v,

have caused Kentuc resident's heart dseasc; holding the manuf'actul'cr amonablc fo suit in Kentucky, the Sixth Circuit reasoned: "[Defcrulant] argues that it has done nothing in particular to purposcfully avail itsclf of thc Kenfucky market as rJistirrguished frotn any other state in the union. If rvc

in

ammunilion used while hunting in Montana; plaintiff sued the Swcdish anrmunition manufacflirer; holding thc manufacturer amcnable to suit in Montana, the Dishict Court noted that the distributor intended "a nationwide product distribution").
Es;

wee to accept defendantrs argument on this point, a foreign

manufacturer coukJ insulate itself fiom liability distritrutor to nrar-ket its proilucts'")'

in

eaoh

of

parte DBl, Inc'., 23 So.3d 635, 654-655

(Ata'2009)

the ffty states simply b' using an independent national

(wr:ongful-death action arising out of an automobile accident in Alabarna; plaintiff sued thc Korean manutcturer of an allegedly defcotive seatbelt; Supretne Court of Alabama held thc manufacturer amenable to suit in Alabama, although thc manufacturet had supplied its scatbelts to the car maker in Korea an<l "maintailfed] there [was] no evidenco ..' showing that it knew its produts wer being marketed in Alabama")'

lletlrick t,. Duiko Shttji Co,'ll5 F'2d 1355,

13-58 (C.A'.g

1983) (products liability suit arising from injuries plaintiff sustained in C)regon caused by an aliegedly dcfctive wie-

2it

Mahinery, Ltd. v, Nicastro' 131 S.Gt. 2780 (2011)

SUPPLEMENTAL EXCERPT OF RECORD

INDEX TO SUPPLEMENTAL EXCERPT OF'RECORD

SUPP ER-1 to SUPP ER-21

CTE's Petition for Alternative Writ of Mandamus

SUPPLEMENTAL ER.1

IN TFIE SUPREME COT]RT

OF TFIE STATE OF OREGON

JEFFREY V/ILLEMSEN, as Personal Representative of the Estate of I{ARLENE J. WILLEMSEN and JAMES WILLEMSEN,

Supreme CourtNo,

SCS Multnomah CountY Circuit Court No, 0902-01653

Plaintiffs - Adverse Parties,

V

INVACARE CORPORATION, a foreign corporation; UNITED SEATING & MOBILITY, LLC, a foreign limited liability company; CHINA TERMINAL & ELECTRIC CORP., a foreign corporation;
CTE TECI-I CORP., a foreign cotporation; MOTION CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign oorporation; PASS & SEYMOUR,INC., a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, INC., f/lc/a Siernens Energy and Automation, Inc., a forei gn corp oration; SUMMERS GROUP, fNC,, dba REXEL, a foreign corporation; and GA'W ELECTzuC, INC., an Oregon corporation,
Defendants,
and

PETITION FOR ALTERNATIVE WRIT

MAFTDAMUS

OF'

ELECTRIC ation; and CTE corporatron,

Defendants-Relotors. February 2011

Con tmued on next page

SUPPLEMEI{TAL ER-2

Mary-Anne Raybum, OSB No. 803680 Jonathan M. Hoffman, OSB No, 754180 Joan L. Volpert, OSB No, 803942 Martin Bischoff Templeton Langslet & Hoffman LLP 888 S.W, Fifth Ave,, Ste, 900 Portland, OR 97204
Telephone

Jeffrey A. Bowersox, OSB No. 814422 The Bowersox Law Firm PC 5385 Meadows Road, Ste, 320 Lake Oswego, OR 97035
Telephone

503 -452-5 858

-

E-Mail: j effrey@blc,com A t t o rney r PI aintffi Adv ers e

Pqrties Richard C, Pearce, OSB No. 762842 Attomey at Law 921 S.W. V/ashington St., Ste' 755 Portland, OR 97205 Telephone : 503-223 -2966 E-Mail : rcr@.hev anet.com C o - C ouns el r P lantffi 'A dv er s e Partes
'Walter

503-224-3 1 13
c

E-Mail:
n{a,v-b rrtn@ rn a r tinb i s-cho ff.
jvo

om

lpqt@m artinbis

cho ff,

om

Att orneys

.r

D efend ants -Rel at or s

H. Sweek, OSB No. 620920 Cosgrave Vergeer Kester LLP 805 S.W, Broadway, SthFloor Portland, OR 97205
Telephone

E-Mail : vvsJyelcl@,,vk-law, qm Attorney r Inv ac are Corporation, Motion Concepts, Inc. and Perpetual Motion Enterprises

503-323-9000

(Contnued on ne,xt page)

SUPPLEMENTAL ER.3

Jay W. Beattie, SB No, 871631 Linelsay Hart Neil & Weigler LLP I300 S.W. Fifrh Ave., Sre,3400 Potlland, OR 97201 Telephone 503-226"7 61 7

E*l!lail: ttarneyfar Unitd Seating &, Mebi\ity, LLC

Heather C. Beasle SF No. 965443 Davis Rcthwell ade & Xoshilrua PC 111 S,W. Fiilh Ave,, Ste, 2700 Portland, OR 97204 Teleptrone: 503 -222-4422 E-Mailt

Attarney.r G,{lf./ Elctrc, Ine.

Joslrua P. $tump, OSB No. 974075 Ilan'ang Long Gary Rudnielc, PC 1001 S.W, Fifth Ave,, l6tlr Floor

Portl*nd, CR.
Teleplrone

97?,4

5 A3

*242-000

B-Mailr Attorneyfor Siernens Indu*ny, h.

(Ccntinried on next page)

ftffir_ffi
{-

*.u

*s Kms

#kwr,rfffi&6-ry&e

SUPPLEMENTAL ER.5

PETITION F'OR LTERNA

WRIT

o F M.{I\DAMUS
&

Defendants-Relators CTE TECH CORP. and CHINA TERMINAL

ELECT'RIC CORP. (apriorbusiness name of CTE Tech Cotp,) (hereinafter

"CTE"), a Taiwanese corporation, alleges:

L 2.

This Court has jurisdiction trnder Article

VII

(Amended), Section 2,

of

the Oregon Constitution, ORS 34.120, and ORS 34.250.

CTE is one of 11 defendants in a Multnomah County Circuit Court
et al. v, Invacare Corp., et al., Multnomah

civil action entitled J"ffr"y Wllemsen,

County Circuit Court Case No. 0902-01653,

3. 4.

The adverse parties to this Petition are Jeffrey Willernsen, as personal

Representative of the Estate of Karlene J. Willemsen, and Jarnes'Wiilemsen.

Plaintjffs filed this aotion for wrongful death and ploperty damages

arising from a fire on February 1, 2008, in Portlancl, Oregon. Plaintiffs allege that Karlene J, Willemson died as a result of a frre which started in the bedroom of her

home. llhe eleven defendants were allegedly involvsd in the design, manufacture,
marketing, sale, or service of the motorized wheelchair, the motorized hospital bed,
and various electrical components and accessories located in the bedroom where

the fire allegedly originated.

SUPPLEMENTAL ER.6
2

5,

The complaint alleges that CTE is liable for manufacturing the battery

and/or battery charger that was a component of decedent's motorized wheelchair (ER-2).

6.

Plantiffs did not allege: (1) that CTE was aware that its products

were being sold in Oregon; (2) that CTE had any presence in or contact with the

wheelchair retailer, the'WiLlemsens, or any other Oregon individrral

oL

entity; (3)

that CTE directed, promotecl the sale. distribution or support of its products in Oregon; (a) that CTE conducts any business in the State of Oregon; or (5) that

CTE maintains any offices, conducts any advertising, has any registered agents or
other contacts with the State of Oregon.
7

CTE moved to dismiss plaintiffs' complaint against it for lack

of

personal jurisdiction, pufsuant to ORCP

2lA(2) (ER-l8 to ER-30), In support of

that motion, CTE provided a Declaration of Peter Chen (ER-33 to ER-35) to establish the following facts: CTE is a Taiwanese corporation that has no physical or business presence in the state of Oregon (ER-34,
1l1l

3,

7).

CTE is not licensed

or registered to concluct business in Oregou (ER-34, fl 10), It does not advertise or

solicit business in Oregon (ER-34, T 11), and it does not have ontracts with or sell
any of its products clircctly to any Orcgon-based vendors, retailers, distributore or

individual consumers (ER'34, T 9). CTE did not have any contaot with the
decedent or United Seating and Mobility, the alleged seller of the wheelchair, with

SUPPLEMENTAL ER-7
2

offices in Oregon, owns property in Oregon, or pays taxes in Oregon; (7) CTE has
any registered agents in Oregon; (8) CTE owns or controls the distributor; or (9)

CTE has any other contacts of any nature with the state of Oregon,
CTE moved to dismiss plaintiffs' complaint against

it for lack of personal

jurisdiction, pursuant to ORCP 2IA(2) (ER-18 to ER-30). In support of that

motion, CTE provided the Declaration of Peter Chen (ER-33 to ER-35) to establish
the following facts. CTE is a Taiwanese corporation that has no physical or
business presence in Oregon (ER-34, TT 3,

7). CTE is not licensed

or registered to

conduct business in Oregon (ER-34,

11

10). It does not advertise or solicit business

in Oregon (ER-34, T 11), and it does not have contracts with or sell any of its
products directly to any Oregon-based vendors, retailers, distributors or individual
consumers (ER-34, fl

9). CTE did not have any contact with the decedent or with

United Seating and Mobility, the alleged seller of the wheelchair, with respect to
the wheelchair itself, or any of its parts, components, or accessories (ER-34,
1T

13)'

CTE did not design, control, or have any involvement in the system of distribution
that ultimately carried the subject battery charger into the State of Oregon (ER-34' to T 14). In short, the Chen Declaration establishes that CTE did nothing

purposefully direct the flow of its products to the state of Oregon and CTE had no
other connection with this state.

SUPPLEMENTAL ER.8
J

respect to the wheelchair itself, or any of its pafis, components, or aocessories (ER34,
1T

l3).

CTE did not design, control, or have any involvement in the system of

distribution that ultimately carried the subject battery charger into ths state of
Oregon (ER-34,

f 14). In short, the Chen Declaration establishes that CTB did

nothing to purposefully direct the flow of its products to the State of Oregon and
CTE had no other connection with this state,

B,

Plaintiffs opposed the motion to disrniss, In response to the motion,

Plaintiffs filed the Romano Declaration (Sealed ER-15 to Sealed ER-l9) which
showed that CTE did nothing more than deliver battery chargers to Invacare, a

purchaser in Ohio (Sealed ER-15,

'[f

3; Sealed ER-16, T 6), In the two-year period

between 2006-2007, Invacare installed a small number of CTE battery chargers that cost a rlatively small amount (Sealecl ER-l 7,1 I0) and then Invacare sold a small number of these power wheelchairs in Oregon (Sealed ER-8,
'11

8).

9.

After oral argument @,R-158 to ER-162; ER-196 to ER-202),the

Circuit Court denied CTE's Motion to Dismiss, based on "the State's interest in
protecting citizens from personal injury" (ER 201).

10.
Mol.iuu:

On January 24, 201 1, the Circuit Court entered its Order denying the

NOW THEREFORE IT iS I{EREBY ORDERED that the CTE defendants'motion to disuriss for laclc of personal jurisdiction is denied.

SUPPLEMENTAL ER.9
4

(ER

204), A copy

of the Order is attached hereto as an exhibit and by this

reference incorporatecl herein. I

1.

CTE timely tled this Petition promptly, within 22 days of the clenial

of its Motion to Dismiss

. See State ex rel Redden v. Van Hoomisen,287

Or 647,

576Pzd355, rev den,282 Or 415 (1978) (Laches governs the timeliness of a petition for
a

writ of mandamus),

12.

Article VII (Amended), Section 2, of the Oregon Constitution affords

jurisdiction over this petition for an altemative writ of rnandamus, Because CTE
challen;es a legal ruling of
a

judge of the cilouit court for Multnomah County in

this palticular case, original jurisdiction lies with this Court. ORS 34.250(1),

13.

The Crcuit Court denied CTE's Motion to Dismiss for lack

of

subject matter jurisdiction (ER-202 to ER-203), and the applicable local rules

prohibit

motion for reconsideration. Multnomah County Local Rule 5.045(1).

'

CTE did not make fi.uther application to the circuit court because that is the court
that issued the Order that is being challenged.

14.

CTE does not have aplain, speedy, and adequate remedy in the

ordinary course of the Iaw. See ORS 34.110. Interlocutory appeal is not

available, Direct appeal is not an adequate remedy, because CTE would

be

required to incur the burden of defending itself in a distant, remote, nd also

foreign forum, This Court has long reoognized that

mandamus proceeding is

SUPPLEMENTAL ER.IO
5

appropriate ivhen the relator asserts that a court is improperiy asserting

jurisdiction. State ex rel Knapp v. Sloper,256 Or 299,307-302,473 PZd 140

(1970), State ex rel Handly v. Hieber,256 Or 93,471. PZd190 (1970), cited in
State ex rel Automotive Emporium, Inc. v. Murchison, 289 Or 265,61 1 P2d 1 169

(1980); see also State ex rel Pardee v, LaTourette, 168 Or 5 84, (1942), and cases cited thelein.

587

, 125 Pzd 7 50

15.

On February 8, 201 1, CTE nroved the Circuit Court to stay discovery

or further proceedings against CTE in the proceedings from which this mandamus proceeding arises, pending final resolution of the mandarnus petition. Hearing on
the motion for a stay is set for January

18,2011. Shouldthe Circuit Court deny

Court to stay discovery

CTE's motion for a stay, CTE

will file a moti,on with this

of

frrrthcr proceedings against CTE in the Circuit Court.

16.

Pursuant to ORS 34.2I0, CTE also requests that, in the event

it

prevails, it be awarded its reasonable attomey fees, cost and disbursements incuned herein.

WHEREFORE, CTE petitons this Court to issue an alternative writ of

tnairdamus, directed to the Hon. Richard C, Baldwin, directing him to vacate thc

SUPPLEMENTAL 8R.11

*.

SUPPLEMENTAL ER-12
i'1)i)
i'::i..

l \-t
{s

I
2
3
l

n ffipY
INTHE CIRCU]T COURT OF TI{E STATE OF OREGON
FOR THB COUNTY OF MUL-TNOMAII JEFFREY WLLEMSEN, as Personal Representativc of the Estate of I{ARLENE J.
Uase No,0902-UI653

6 7
8

WILLEMSEN and JAMBS WILLEMSEN,

Plaintiffs,

ORDBR

v
INVACARE CORPORATION, a foreign corporation; UNTIED SEATING & MOBtr ITY, LLC,, aforeign limted tiability company; CHINA TERMINAI & ELBCTRIC CORP., a foreign corporation; CTE TBCH CORP., a foreigu oorporation; MOTION CONCEPTS,INC,, a foreign coryoration; PERPETUAL MOTION ENTERPRISBS, LTD, a foreign corporation; PASS & SEYMOUR, INC,, a foreign

10
11

12

t3

l4
15

16

l7
1B

GROIIP, INC,, dba REXEL, a foreign corporatioq and GAV/ ELECTRIC, INC' an
Oregon Ccirporation,

L9

Defendants'

20
2L
,).,

This matter came bef'ore the court on the motion filed by CTE Tectr Cotp, and Chila Tennial&
Electric Corp.'s Motion to Dismiss for Lack of Personal Jurisdiction. The oourt has read and considered the submssions of the parties including the declarations submittd by the parties

*a nu, hoard argument of

23

counscl,

24
25

zo
Page 1 - ORDER
BorvoBd^Lw Fird, P,c. 5-z8l Modo\r5 J{ood, 6uitD 120 Lkc ows{o, O !1015 (501) +52 5858

JAN $'EOII

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fib$e6 @,ks,

isseffinlsi

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k$eerptu=e#{eff'

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l,

SUPPLEMENTAL ER-14
1

CERTIF'ICATE OF' MAILING/SERVICE I certify that I filed the original and eight (8) copies of the PETITION FOR WRIT OF ALTERNATIVE MANDAMUS by hand delivering to:
State Court Administrator Supreme Court Building 1 163 State Street Salem, OR 9730I-2563 on February 16

, zott.

I further certiff that I served one copy of said PETrrroN FoR wRrr oF' ALTERNATIVE MANDAMUS by mailing, via ftrst class mail, postage prepaid,
to: Jeffrey A. Boweisox The Bowersox Law Firm PC 5385 Meadows Road, Ste, 320 Lake Oswego, OR 97035 Attorney for P laintffi -Ady ers e Parties

Jay W, Beattie Lindsay Hart Neil & Weigler LLP 1300 S,W. Fifth Ave., Ste, 3400 Portland, OR 97201 Attorneyr United Seating & Mobilty, LLC

Richard C. Pearce Attomey at Law

Suire 755 921 S.W. Washington St. Portland, OR 97205
C o- C ouns
eI

fo r P I aintffi -A dv er s e

Parties V/alter H. Sweek Cosgrave Vergeer Kester LLP 805 S,W. Broadway, 8th Floor Por.tland, OR 97205
A tt orney

Ronald J, Clark Bullivant Houser Baiiey PC 888 S,W, Fifth Ave., Ste. 300 Portland, OR 97204 Attorneyfor Pass & Seymour, Inc,
Heather C. Beasley Davis Rothwell Earle & Xochihua PC 1 1l S.W, Fifth Ave,, Ste. 2700 Porland, OR 97204 Attorney for GAW .Electric, In.c,
Joshua P. Stump Harrang I,ong Ga,ry Ruclnick, PC 1001 S,Tf, Fifth Ave.. l6th Floor Portland, OR 97204

Motion Concepts, Inc, nd Perpetual Motion Enterprses

for

Inv c ar e C orp or ti on,

SUPPLEMENT.I 8R.15

SUPPLEMENTAL ER-16

IN THE SUPREME COURT OF THE STATE OF OREGON

JEFFREY WILLEMSEN, as Personal Representativ of the Estate of Karlene J, Willernsen; and JAMES WILLEMSEN, individually, Plai ntiffs-Adverse Pa rties,

INVACARE CORPORATION, a foreign corporaton; UNITED SEATING & MOBILITY, LLC, a foreign limited liability company; MOTION CONCEPTS, lNC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS & SEYMOUR, lNC., a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, iNC,, fka Siemens Energy and Automation, !nc., a foreign corporation; SUMMERS GROUP, lNC,, dba REXEL, a freign corporation; and GAW ELECTRIC, lNC., an Oregon corporation, Defendants,
.jand

CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; and CTE TECH CORP., a foreign corporation, Defendants-Relators 'Multnomah
County Circuit Court 090201653

s059201 ORDER DENYING PETITION FOR WRIT F MANDAMUS AND VACATING ORDER TO STAY PROCEEDINGS Upon consideration by the court.

The petition for writ of mandamus is dened. The stay granted by order on February 23, 2011, is vacated.

& - 7-//

CHIEF

DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS Prevailing party: Adverse Parties [. X ] No costs allowed

ORDER DENYING PETITION FOR WRIT OF NANDAMUS AN VACATING ORDER TO STAY PROCEEDINGS
REPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Secton, Supreme Court Building, 1163 $tate Street, Salem, OR 97301-2563 Page 1 o'12 htAR

*&

201t

SUPPLEMENTAL 8R.17

.ENYING PETMON FOR, T'tIRI OF IIANiIUS. AND I'ACATNG OHDER

&

SUPPLEME]\TAL ER-18

United States of America,

to-1262

ss:

THE FRESIDENT OF THE UNITED STATES

CHINA TERMINAL & ELECTRIC CORP., ET AL.'

v-

Petitioners

JEFFREYWILLEMSEN,ASPERSONALREPRESENTATIVE OF THE ESTATE OF KARLENE J. WILLEMSEN' ET AL'

To the Honorable the Justices of the Supreme Court of Oregon'

GREETINGS:
Supreme Court of Oregon case, Jeffoey Willemsen, as Personal Representafive of the

Estate of Karlene J. Wi]lemsen, et al., Plaintj.ffs-Adverse Parties, v. fnvacare Corporation, et al,,

Defendants, A1d China Terminal

& Electric Corp,, et aI., Defendants'Relators, No' 5059201,

was

submitted to the SUPREME COURT OF THE UNITED STATES on the petition for writ of
certiorari and the response thereto, and the Court having gfanted the petition.

It is ordered and audged

above court in

on October 3, 2OL1, by this Court that the judgment of the

this cause is vacated with costs, and the cause is remanded to the Supreme Court of

Oregon for further consideration J. Mclntyre Morhinery, Ltd'. v. Nicastro,564 U.S.

THE CAUSE IS REMANDED to you in order that

such proceedings may be had

-(%OLL)'

in

the said. cause, in conformity with the judgment of this Court above stated, as accord wth right and justice, and the Constitution and Laws of the United States.
Witness the Honorable JOHN G. ROBERTS, JR., Chief Juetice of the United States,

the

3'd day of October,

in the year Two Thousand and Eleven.

$300.00

Clerk's costs:

K, SUTEB
I

Uniled States

Clerk of the Supreme

of the United States

SUPPLEMENTAL 8R.19

IN THE SUPREME COURT OF THE STATE OF OREGON

JEFFREY WILLEMSEN, as Personal Representative of the Estate of Karlene J. Willemsen; and JAMES WILLEMSEN, individually, P lai ntiffs-Adverse Parties,
V

INVACARE CORPORATION, a foreign corporation; UNITED SEATING & MOBILITY, LLC, a foreign limited liability company; MOTION CONCEPTS, lNC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS & SEYMOUR, lNC., a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, lNC., fka Siemens Energy and Automation, lnc., a foreign corporation; SUMMERS GROUP, lNC., dba REXEL, a foreign corporation; and GAW ELECTRIC, lNC., an Oregon corporation, Defendants,
and CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; and CTE TECH CORP,, a foregn corporation, Defendants-Relators.

Multnomah County Circuit Court 090201 653

s059201 ORDER ALLOWING PETITION FOR ALTERNATIVE WRIT OF MANDAMUS; ALTERNATIVE WRIT OF MANDAMUS

Upon consideration by the court

The petition for alternative writ of mandamus is allowed.

ALTERNATIVE WRIT OF MANDAMUS To: The Honorable Richard C. Baldwin.
By this reference, allwell-pleaded allegations in the petition are incorporated in this Writ as if set out in full.

Wherefore, in the name of the State of Oregon, you are commanded to vacate the order entered on January 25,2011, denying the motion to dismiss filed by CTE Tech Corp. ORDER ALLOWING PETITION FOR ALTERNATIVE WRIT OF MANDAMUS; ALTERNATIVE WRIT OF MANDAMUS
REPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Section, Supreme Court Building, 1163 State Slreet, Salem, OR 97301-2563 Page 1 of 2

frs.t

ORERALLOWN

WRTT GF.ilANDAMUS;

CERT.IF'ICATION OF COMPLIANCE \ryITH BRIEF LENGTH AND TYPE SIZE REQUIREMENTS

CERTIFICATE OF MAILING/SERVICE

I certifo that I filed RELATOR'S OPENII\G BRIEF AND

SUPPLBMENTAL EXCERPT OF RECORD by e-Filing to:
State Court Administrator Supreme Court Building 1 163 State Street Salem, OR 9730f-2563

and to the following attorneys of record

Jeffrey A. Bowersox Bowersox Law Firm PC 5385 Meadows Road, Ste. 320 Lake Oswego, OR 97035 Kathryn H. Clarke
P.O. Box 11960 Portland, OR 9721 I Att orn ey s .for P I aintif -Adv Prties

Jay W. Beattie Lindsay Hart Neil & Weigler LLF 1300 S.W. Fifth Ave., Ste. 3400 Portland, OR 97201 Attorney United Seatng &

Mobilty, LLC
Ronaid J. Clark Bullivant Houser Bailey PC 888 S.V/. Fifth Ave., Ste. 300 Portland, OR 97204 Attorneyfor Pass & Seymour, Inc Heather C. Beasley Davis Rothwell Earle & Xochihua PC I 11 S.W. Fifth Ave., Ste. 2700 Portland, OR 97204 Attorneyfor GAW Electrc, Inc.
Joshua P. Stump

er s e

Richard C. Pearce Attorney aTLaw 1618 S.W. First Ave., #240 Portland, OR 97201
C o - C ouns el

for

ainiif{s -Adv er s e

Parties Walter H. Sweek Cosgrave Vergeer Kester LLP 8S8 S.W" Fifth Ave., Ste. 500 Portland, OR 97204 Attorney for Inv ac ar e C orporaton, Motion Concepts, Inc. and Perpetul Motion Enterprises

Hairang Long Gary Rudnick, PC i001 S.W. Fifth Ave., 16th Floor Portland, OR 97204 Attorney for Siemens Industry, Inc

S:

OSB No.754180

March 29, 2012 09:23 PM

IN THE SUPREME COURT OF THE STATE OF OREGON JEFFREY WILLEMSEN, as Personal Representative of the Estate of Karlene J. Willemsen; and JAMES WILLEMSEN, individually, Plaintiffs-Adverse Parties, v. INVACARE CORPORATION, a foreign corporation; UNITED SEATING & MOBILITY, LLC, a foreign limited liability company; MOTION CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS & SEYMOUR, INC., a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, INC., fka Siemens Energy and Automation, Inc., a foreign corporation; SUMMERS GROUP, INC., DBA REXEL, a foreign corporation; and GAW ELECTRIC, INC., an Oregon corporation, Defendants, and CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; and CTE TECH CORP., a foreign corporation, Defendants-Relators Multnomah County Circuit Court 0902-01653 Supreme Court No. S059201 MANDAMUS PROCEEDING

PLAINTIFFS ANSWERING BRIEF

Kathryn H. Clarke OSB 791890 PO Box 11960 Portland, Oregon 97211 (503) 460-2870 kathrynhclarke@mac.com

Jeffrey A. Bowersox OSB 814422 Bowersox Law Firm PC 5385 Meadows Road Suite 320 Lake Oswego, Oregon 97035 (503) 452-5858 jeffrey@blfpc.com

Attorneys for Plaintiffs-Adverse Parties Willemsen

Counsel continued inside cover March 2012

Mary-Anne Rayburn OSB 803680 Jonathan M. Hoffman OSB 754180 Joan L. Volpert OSB 803942 Martin Bischoff Templeton Langlet & Hoffman LLP 888 SW Fifth Avenue Suite 900 Portland, Oregon 97204 mrayburn@martinbischoff.com jhoffman@martinbischoff.com jvolpert@martinbischoff.com Attorneys for Defendants-Relators George S. Pitcher OSB 963982 Rachel A. Robinson OSB 084550 Williams Kastner & Gibbs PLLC 888 SW Fifth Avenue Suite 600 Portland, Oregon 97204-2025 gpitcher@williamskastner.com rrobinson@williamskastner.com Attorneys for Amicus Curiae Product Liability Advisory Committee, Inc. Lisa T. Hunt OSB 023306 Law Office of Lisa T. Hunt, LLC 1618 SW First Avenue Suite 350 Portland, Oregon 97201 (503) 517-9852 lthunt@lthuntlaw.com Attorney for Amicus Curiae Oregon Trial Lawyers Association

i TABLE OF CONTENTS Response to CTEs Statement of the Case .................................................... 1 Statement of Facts ......................................................................................... 1 Procedural History............................................................................... 1 The Jurisdictional Facts. ...................................................................... 3 Question Presented ........................................................................................ 4 Summary of Argument .................................................................................. 5 Response to Assignment of Error .................................................................. 6 On this record, the trial court did not err in concluding that the exercise of jurisdiction over CTE was consistent with Oregons long-arm provisions and with due process. Argument ................................................................................................... 6

Oregons long-arm provisions. ............................................................ 6 Jurisdiction under ORCP 4D. .............................................................. 7 ORCP 4L and Hydraulic Servocontrols. ........................................... 10 Before Nicastro: Subsequent U.S. Supreme Court opinions did not threaten the Hydraulic holding. ........................................ 15 After Nicastro: Nothing has changed................................................ 22 Oregon jurisdiction is consistent with due process. .......................... 27 Conclusion ................................................................................................. 29

ii TABLE OF AUTHORITIES Cases Asahi Metal Industry Co., Ltd., v. Superior Court of California, 480 US 102, 107 SCt 1026 (1987) ........................... 19,20,21,22,24,25 Burger King Corp. v. Rudzewicz, 471 US 462, 105 SCt 2174 (1985) ........................................ 8,10,13,17,18,19,22,24 Calder v. Jones, 465 US 783, 104 SCt 1482 (1984) .............................. 15,16 Hanson v. Denckla, 357 US 235, 78 SCt 1228 (1958) ................................ 14 Helicopteros Nacionales de Colombo, S.A. v. Hall, 466 US 408, 104 SCt 1868 (1984) .................................................... 17 International Shoe Co. v. Washington, 326 US 310, 66 SCt 154 (1945) ........................................................................ 11,14 J. McIntyre Machinery, Ltd., v. Nicastro, ___ US ___, 131 SCt 2780 (2011) ............................................. 5,15,22,23,24,25,26 Keckler v. Brookwood Country Club, 248 F Supp 645 (ND Ill 1965) ..................................................... 14,15 Keeton v. Hustler Magazine, Inc., 465 US 770, 104 SCt 1473 (1984) .. 16,17 Neptune Microfloc, Inc. v. First Florida Utilities, Inc., 261 Or 494, 495 P2d 263 (1972) ....................................................... 26 State ex rel Academy Press v. Beckett, 282 Or 701, 581 P2d 496 (1978) ........................................................................... 26 State ex rel Circus Circus Reno, Inc., v. Pope, 317 Or 151, 854 P2d 461 (1993) ......................................................... 7 State ex rel Hydraulic Servocontrols Corp. v. Dale, 294 Or 381, 657 P2d 211(1982) ...................... 6,7,8,10,11,12,15,22,27

iii State ex rel Jones v. Crookham, 296 Or 735, 681 P2d 103 (1984) ................................................................. 24,25,26 State ex rel Michelin v. Wells, 294 Or 296, 657 P2d 207 (1982) ........... 12,13 Sutherland v. Brennan, 321 Or 520, 901 P2d 2409 (1995) ......................... 24 State ex rel Western Seed Production Corp. v. Campbell, 250 Or 262, 442 P2d 215 (1968) .................................................. 14,15 World-Wide Volkswagen Corp. v. Woodson, 444 US 286, 100 SCt 559 (1980) .................................. 8,9,10,11,12,16,18,19,24,28 Statutes and Rules ORCP 4 ORCP 4D ORCP 4L .............................................................................................. 6,11 ........................................................................................ 6,7,9,10 ......................................................................................... 6,10,11 Other Sources Merrill, Jurisdiction and Summons in Oregon (1986) ................................ 7,8

1 RESPONSE TO STATEMENT OF THE CASE Plaintiffs accept CTEs statement of the nature of the action and judgment and its description of this courts jurisdiction. Plaintiffs cannot accept CTEs statement of the facts or the question presented. STATEMENT OF FACTS Relators CTE Tech Corp and China Terminal & Electric Corp (hereafter CTE) are Taiwanese manufacturers of a battery charger that became a component in an FDA-approved electric wheelchair manufactured by defendant Invacare and purchased by Oregon resident Karlene Willemsen, who suffered from advanced multiple sclerosis. On February 1, 2008, a fire started, allegedly as a result of a product defect in one or more of the electrical components in the wheelchair, the in-home hospital bed or household switches and wiring next to the bed. Ms. Willemsen was

physically incapable of escaping the bed before the fire engulfed the bedroom and she was immolated. Procedural History. This case was filed in Multnomah County Circuit Court in February 2009. As plaintiffs stated in somewhat more detail in their Response to CTEs Petition for Alternative Writ of Mandamus, the case was removed to federal court, where CTE filed a motion to dismiss for lack of personal

2 jurisdiction, and there were attempts at and disputes about discovery on the jurisdictional issue. ER 117, 148. Meanwhile, the parties continued with an investigation of the fire scene evidence, and a local defendant was identified and added. As a result, the case was remanded to state court on January 28, 2010. On May 21, 2010, CTE filed its state court motion to dismiss for lack of personal jurisdiction. ER 30. That same date, CTE responded to

plaintiffs discovery requests by asserting repeatedly and at some length -that it had no documents relevant to the issue of personal jurisdiction. ER 97-114. At a hearing on CTEs motion, held on July 30, 2010, the court deferred ruling and allowed further discovery on the jurisdictional question. ER 161. Willemsen obtained additional evidence relevant to the issue of personal jurisdiction from co-defendant Invacare Corporation, the

manufacturer of the wheelchair of which CTEs battery charger was a component. Invacare provided a declaration from its representative (Romano), setting forth the volume and value of CTE products sold in Oregon. That declaration was filed with the court on October 25, 2010, and is attached at Sealed ER 15-17. The parties submitted supplemental briefing and a second hearing was held on January 30, 2011. The trial court ruled:

3 [B]ased on the entire record, including Mr. Romanos declaration, and given the States interest in protecting its citizens from personal injury, the Court does deny defendant CTEs motion. ER 201. The Jurisdictional Facts CTEs factual summary focuses almost exclusively on what plaintiffs did not allege, and on what facts are not presented by the record. Relators Opening Brief at 6-7. Defendant Invacare is a leading manufacturer of medical products, with a national, even worldwide, distribution. Sealed ER 2,8,15. CTE manufactures battery chargers that are designed to be incorporated into Invacare wheelchairs. See Sealed ER 1 14 (the Master Supply Agreement between CTE and Invacare). These medical devices are subject to FDA approval, and as its contract requires, CTE is registered with the FDA as a manufacturer of finished medical devices. Sealed ER 9. CTE supplied 100% of Invacares inventory of 3 and 5 amp chargers, and 73% of its inventory of 8 amp chargers. During that same two-year period, Invacare sold 1166 power wheelchairs to Oregon customers. Invacare estimates that 1102 CTE chargers were delivered into Oregon during that period. The average cost of 3, 5 and 8 amp chargers is $24.09, $31.14 and $42.76 respectively. During 2006 and 2007, CTE had sales

4 worth over $2.1 million dollars to Invacares US manufacturing facility in Ohio. Sealed ER 15. In its contract with Invacare, CTE represents and warrants, inter alia, that its products will be manufactured, packaged, labeled and stored in accordance with all applicable federal, state and local laws, ordinances, rules and regulations. Sealed ER 5 (Section 13D). The agreement obligates

CTE to indemnify Invacare from any and all claims, losses, damages, charges, expenses which may be made against Invacare or that Invacare may incur arising out of or concerning the chargers. Sealed ER 6 (Section 16). The agreement requires that CTE cooperate at its expense with

Invacare in the investigation of any such claim. Id. The contract further obligated CTE to carry $1,000,00 in liability insurance to cover product liability claims related to CTE battery chargers sold as a component of Invacare products. Sealed ER 14. CTE and its insurer have actively

investigated the fire loss allegations in this case. See, e.g., ER 88 91. An Invacare wheelchair with CTEs battery charger as a component was sold to KarleneWillemsen in Oregon. The fire took her life in Oregon. QUESTION PRESENTED Does a manufacturer, by placing its product into the stream of national commerce so that it reaches consumers in Oregon by means of the expected

5 interstate distribution activity of others, have sufficient contacts with Oregon that the exercise of jurisdiction is proper when an Oregon resident is injured or killed by a defect in the product? SUMMARY OF ARGUMENT Under ORCP 4D, CTEs products were used or consumed within this state in the ordinary course of trade, and this action for an injury that occurred in Oregon is properly brought in an Oregon court. Under this courts existing precedents, it comports with due process for an Oregon court to exercise jurisdiction over a component part manufacturer whose products are incorporated into another manufacturers finished products and then delivered into interstate commerce with the expectation that they will be purchased by consumers in all states including Oregon. The plurality opinion in J. McIntyre Machinery, Ltd., v. Nicastro, ___ US ___, 131 SCt 2780 (2011) has not changed the law, and there is no need for this court to revisit or revise its prior cases. Under those precedents, jurisdiction was appropriate and the trial court properly denied CTEs motion to dismiss.

6 RESPONSE TO ASSIGNMENT OF ERROR On this record, the trial court did not err in concluding that the exercise of jurisdiction over CTE was consistent with Oregons long-arm provisions and with due process. ARGUMENT Oregons long-arm provisions. ORCP 4 provides, in relevant part: A court of this state * * * has jurisdiction over a party * * * under any of the following circumstances: *** D. In any action claiming injury to person or property within this state arising out of an act or omission outside this state by the defendant, provided in addition that at the time of the injury * * * *** (2) Products, materials or things * * * manufactured by the defendant were used or consumed within this state in the ordinary course of trade. *** L. Notwithstanding a failure to satisfy the requirement of sections B through K of this rule, in any action where prosecution of the action against a defendant in this state is not inconsistent with the Constitution of this state or the Constitution of the United States. This court has pointed out that this latter catchall provision, Rule 4L, is a codification of our earlier holding that Oregons jurisdictional statute, former ORS 14.035, was intended to reach the outer limits of due process. State ex rel Hydraulic Servocontrols Corp., 294 Or 381, 384, 657 P2d 211

7 (1982). Regarding the preceding subsections, including ORCP 4D, this

court noted: Based as they are on facts which the United States Supreme Court has held to be adequate bases for jurisdiction, these more specific provisions serve to narrow the inquiry so that if a case falls within one of them, there is no need to litigate more involved issues of due process. Once a plaintiff alleges facts bringing his or her case within a specific provision, that ordinarily will be the end of the matter. 294 Or at 384-85. Jurisdiction under ORCP 4D. In its opening brief, CTE does not address, or even cite to, ORCP 4D. This is somewhat surprising; in its Memorandum in Support of Petition for Alternative Writ of Mandamus, CTE argued at some length that plaintiff hadnt made a sufficient showing to invoke that provision. Memorandum at 9-12. In State ex rel Circus Circus Reno, Inc., v. Pope, 317 Or 151, 854 P2d 461 (1993), this court quoted with approval Professor Merrills comments regarding ORCP 4D in his treatise on Oregon jurisdiction: "Injury within [this] state does not mean that the ultimate * * * consequences of a defendant's act [are] felt within the state. * * * Injury within the state means that the immediate effect of the defendant's out-of-state act must occur within the state." 317 Or at 155, quoting Merrill, Jurisdiction and Summons in Oregon 21-22 (1986).

8 The court also quoted Professor Merrills explanation that ORCP 4C through 4K provide for jurisdiction based on a relationship between the state and the subject matter of the particular litigation. Jurisdiction [under those subsections] exists only if the action 'arises out of' defined activities by the defendant. Merrill, supra, at 2 (quoted in Circus Circus Reno, 317 Or at 155 n. 1). The United States Supreme Court said in World-Wide Volkswagen Corp. v. Woodson, 444 US 286, 297-98, 100 SCt 559 (1980) Hence if the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others. The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State. 444 US at 297-98 (emphasis added). See also Burger King Corp. v. Rudzewicz, 471 US 462, 473, 105 SCt 2174 (1985)(quoting with approval the last sentence in the above quotation). Similarly, in Hydraulic Servocontrols, supra, this court had no difficulty with the proposition that a producer of a component part expects the benefits of the nationwide market targeted by the manufacturer of the

9 finished product. The component part manufacturer indirectly, through the direct efforts of the manufacturer of the finished product, seeks to serve a nationwide market, and delivers the product into the stream of commerce with the expectation, and the hope, that it will reach this forum and every other state. ORCP 4D(2) requires quite simply that products * * * manufactured by the defendant were used or consumed within this state in the ordinary course of trade. Plaintiffs established that more than 1100 times in two years a wheelchair was purchased in Oregon that contained a CTE battery charger as a component. To use the language of World-Wide Volkswagen, supra, this was no isolated occurrence; indirectly, through Invacare, CTE successfully made efforts to serve a nationwide market that resulted in its product repeatedly reaching Oregon consumers. 444 US at 297-98. CTE delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in Oregon and across the country. Id. And it does so under the terms of an agreement with Invacare that obligates it to register with a national agency that protects consumers across the country, to comply with federal, state and local laws, to carry insurance coverage for product liability claims, and to investigate (as it did

10 here) the circumstances of such a claim. Where did it think such claims would arise? And where did they think such claims would be brought?1 Plaintiffs submit that this case fits comfortably under ORCP 4D, well within the parameters of due process described in World-Wide Volkswagen, supra, and Burger King, supra. [T]here is no need to litigate more

involved issues of due process. Hydraulic Servocontrols, supra, 294 Or at 385. ORCP 4L and Hydraulic Servocontrols Hydraulic Servocontrols Corporation, a New York corporation, designed and manufactured a device called a servo actuator which had been incorporated into an engine manufactured for Cessna and placed in the aircraft which plaintiff purchased in Oregon. Less than two weeks after the purchase, the plane crashed in California. Because the plane crash from which the claim arose occurred in California, not Oregon, ORCP 4D did not apply. There was correspondingly less of a link between the claim and the forum, and the only relevant

As plaintiff points out at the conclusion of this brief, CTE has never argued that it would be inconvenienced by having to defend a claim in Oregon, and has never suggested what forum would be more appropriate. Indeed, CTE told the trial court that it was not challenging Oregon jurisdiction on the basis that it does not comport with traditional notions of fair play or substantial justice. CTEs Supplemental Reply in Support of its Motion to Dismiss, p. 8 (ER 177).

11 provision of ORCP 4 was ORCP 4L. This court framed the question before it as follows: The issue is whether, by placing its product into the stream of American commerce so that it reaches consumers in Oregon by means of the commercial distribution activity of others, Hydraulic has sufficient contact with Oregon that exercise of jurisdiction is lawful when an Oregon resident is damaged by defects in that product. We hold that it is. 294 Or at 383-84. After reviewing United States Supreme Court precedents since the minimum contacts analysis of International Shoe Co. v. Washington, 326 US 310, 66 SCt 154 (1945), and focusing on the language already quoted above from World-Wide Volkswagen, supra, this court said: By undertaking economic activity of this kind with the expectation that its products ultimately will come to rest in every state, Hydraulic has effectively "deliver[ed] its products into the stream of commerce with the expectation that they will be purchased by consumers in [Oregon]." World-Wide Volkswagen, supra, 444 US at 298. Even though Hydraulic did not conduct any sales activities in Oregon itself, its business has been directly affected by sales transactions occurring here. To that extent, it has benefited from the protection which our laws have given to the marketing of Cessna aircraft containing its servo actuators. Hydraulic, having sold a product with the intention of deriving economic benefit from a national market, including Oregon, can expect to be haled into court in Oregon when a product containing its allegedly defective servo actuator is purchased here and causes injury to a resident. 294 Or at 389 (citation in text).

12

The court concluded that the fact that the accident did not occur in Oregon was not fatal to jurisdiction: the issue is whether the contacts which do exist are sufficient, not whether some other type of contact is missing. Id. It is worth noting that when the Hydraulic Servocontrols opinion discusses foreseeability, it did so in precisely the terms described by the United States Supreme Court By "foreseeability" the Supreme Court does not refer to the mobility of the chattel and thus the expectation of its use in the forum state. What is relevant for due process is the foreseeability of being haled into the forum state's courts, and it is "the defendant's conduct and connection with the forum state," 444 US at 291, that provides that expectation rather than any "unilateral activity" of a plaintiff. 294 Or at 387-88, quoting World-Wide Volkswagen, 444 US at 297-98. On the same day that the court issued its opinion in Hydraulic Servocontrols, it decided in another case that there was not a sufficient connection between the forum and the claim to support jurisdiction. State ex rel Michelin v. Wells, 294 Or 296, 657 P2d 207 (1982). There LambWeston, an Oregon corporation, brought an action against Michelin France, the manufacturer of a tire that Lamb-Weston had installed on one of its trucks; the tire had exploded on a Washington highway and caused damage to the truck as well as lost profits. The defendant sold its products in France

13 to two United States purchasers with whom it had no corporate connections (Michelin USA and Sears Roebuck). Nevertheless, the court noted that Michelin France has sought indirectly to serve the Oregon market through a system of distribution by others which covers the United States, that it gained economic benefit from sale of its products in Oregon, and that it could foresee that it could be called to account in Oregon courts. What the court found problematic was that [t]here must be some fact of the case other than the mere residence of the plaintiff which makes Oregon an appropriate forum. 294 Or at 301-02. But plaintiffs in Michelin had not demonstrated that any fact relevant to the claim -- such as sale, use, accident or injury-- had occurred in Oregon, and therefore the claim had an insufficient connection2 with the forum to comport with due process. 294 Or at 303. As Michelin acknowledged, this court had already held as early as 1968 that an out-of-state manufacturer may be called to account in the courts of this state when an Oregon resident is damaged in Oregon by its

Pending before this court is a petition for review in Robinson v. HarleyDavidson Motor Co., Supreme Court No. S060226, which presents the question whether the substantive relevance test for the connection between the claim and the defendants forum contacts is too restrictive when compared to the test articulated in Burger King Corp. v. Rudzewicz, supra, 471 US at 472, requiring that the claim arise out of or relate to the jurisdictional facts.

14 products. 294 Or at 299. In State ex rel Western Seed Production Corp. v. Campbell, 250 Or 262, 442 P2d 215 (1968), plaintiffs were Oregon sugar beet growers who had purchased seed that had been propagated by defendant in Arizona and sold in Arizona to the plaintiffs local supplier; plaintiffs claimed the seed was defective, resulting in crop losses and property damage. Noting the Supreme Courts emphasis in Hanson v. Denckla, 357 US 235, 253, 78 SCt 1228 (1958) on the need for some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws, this court stated: In the cases upholding jurisdiction the controlling idea seems to be that manufacturers who seek a nationwide market for their wares ought to prepare at the same time to defend themselves in the courts of the states in which defective products may injure consumers. The idea conforms to the fairness principle of International Shoe as well as to the economic facts of life. The Hanson v. Denckla emphasis on the defendant's act in purposefully invoking the benefit and protection of the forum's laws is satisfied where a seller undertakes to exploit the market in any state where customers may be found for his products. "* * * Where a defendant does business of such volume, or with such a pattern of product distribution, that he should reasonably anticipate that his product may ultimately be used in any state, he has done the act required for the exercise of jurisdiction by the state where the injured user resides * * *." Keckler v.

15 Brookwood Country Club, 248 F Supp 645, 648 (ND Ill 1965). 250 Or at 274. Emphasizing that the question might be different if the sale out of which the claim arose was an isolated transaction, and that Western Seed did not engage in interstate commerce, the court held that jurisdiction was proper. 250 Or at 275. Essentially, Western Seed was a stream of commerce case before that phrase entered the lexicon. Hydraulic was not only consistent with current United States Supreme Court decisions, it was well-anchored in this courts precedents. Before Nicastro: Subsequent U.S. Supreme Court opinions did not threaten the Hydraulic holding. In the next four years after this courts opinions in Hydraulic and Michelin, the United States Supreme Court issued several opinions on jurisdiction. In 1984, in two libel actions against publishers of national publications aimed at a nationwide audience, the court held that circulation of the publication into the forum state was sufficient to establish jurisdiction. In Calder v. Jones, 465 US 783, 104 SCt 1482 (1984), Shirley Jones brought an action in her home state of California against The National Enquirer, Inc.,

16 its local distributor, and two individuals who authored and edited the subject story in the state of Florida. Other than one phone call from the author to Jones home, shortly before publication, the individuals had no other relevant contacts with the state of California. Volkswagen, supra, the court held: The allegedly libelous story concerned the California activities of a California resident. It impugned the professionalism of an entertainer whose television career was centered in California. The article was drawn from California sources, and the brunt of the harm, in terms both of respondent's emotional distress and the injury to her professional reputation, was suffered in California. In sum, California is the focal point both of the story and of the harm suffered. Jurisdiction over petitioners is therefore proper in California based on the "effects" of their Florida conduct in California. 465 US at 788-89. The court rejected the individual defendants argument that they were not responsible for the circulation of The National Enquirer and had no direct economic stake in their employers sales in a distant State; the court held that they could reasonably anticipate being haled into court to defend the truth of their article in the state where its impact was felt. 465 US at 789-90. In Keeton v. Hustler Magazine, Inc., 465 US 770, 104 SCt 1473 (1984), a New York resident brought a libel suit in New Hampshire against an Ohio publisher of a nationally circulated magazine; the defendants sole contact with the forum was the monthly sales of between 10,000 and 15,000 Citing World-Wide

17 copies. The court held that the defendants regular circulation of

magazines in the forum State is sufficient to support an assertion of jurisdiction (465 US at 774): Respondent produces a national publication aimed at a nationwide audience. There is no unfairness in calling it to answer for the contents of that publication wherever a substantial number of copies are regularly sold and distributed. 465 US at 781. Also in 1984 the court decided Helicopteros Nacionales de Colombo, S.A. v. Hall, 466 US 408, 104 SCt 1868 (1984), on general jurisdiction grounds. The majority stated that the parties had conceded that the claims did not arise out of and are not related to, the defendants forum activities, and therefore had conceded that there was no specific jurisdiction. 466 US at 415. In dissenting, Justice Brennan saw no such concession; he concluded that the claims were significantly related to, even if they did not arise out of, the defendants forum activities, thus supporting specific jurisdiction. 466 US at 425 and fn. 3. One year later, Justice Brennan wrote the majority opinion in Burger King v. Rudzedwicz, supra. Citing Keeton, supra, and Helicopteros (the majority opinion), supra, the court stated this test: Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there,

18 this "fair warning" requirement is satisfied if the defendant has "purposefully directed" his activities at residents of the forum, and the litigation results from alleged injuries that "arise out of or relate to" those activities. 471 US at 472 (citations omitted). The first example, in the next sentence, was this: Thus "[the] forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State" and those products subsequently injure forum consumers. 471 US at 473 (quoting and citing World-Wide Volkswagen, supra, at 297-298). Thus the court in Burger King equated purposeful availment with the stream of commerce proposition articulated in World-Wide Volkswagen. Purposeful availment, the court said, ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous or attenuated contacts. 471 US at 475. In a statement that reminds us how recently the internet became a factor in our lives, the majority opinion also noted specifically the substantial amount of business transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within the State both for business purposes and as a jurisdictional requirement. 471 US at 476.

19 Finally, the majority in Burger King also made it clear that the strength of the minimum contacts was to be evaluated in light of the various factors that affect the question of whether an exercise of jurisdiction would comport with fair play and substantial justice, the bedrock principle underlying due process. 471 US at 476, citing International Shoe, supra, 326 US at 320. Thus courts in "appropriate [cases]" may evaluate "the burden on the defendant," "the forum State's interest in adjudicating the dispute," "the plaintiff's interest in obtaining convenient and effective relief," "the interstate judicial system's interest in obtaining the most efficient resolution of controversies," and the "shared interest of the several States in furthering fundamental substantive social policies." World-Wide Volkswagen Corp. v. Woodson, 444 US at 292. These considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required. 471 US at 476-77 (citation in text). In Asahi Metal Industry Co. v. Superior Court, 480 US 102, 107 SCt 1026 (1987), a patchwork quilt of opinions was substituted for the concept of a majority. All nine justices agreed that the California courts exercise of jurisdiction violated due process. In part, this was due to the unique

procedural posture of the case. The case began as a product liability action against the Taiwanese manufacturer, Cheng Shin, of an allegedly defective motorcycle tire that exploded and caused an accident that injured the driver

20 and killed his passenger. Cheng Shin filed a cross-claim for indemnity against Asahi, the Japanese manufacturer of a component in the tire. The underlying product liability action settled, leaving only the indemnity crossclaim. The indemnity cross-claim did not arise out of or relate to anyrelated contacts, and California had little or no interest to be protected by exercise of jurisdiction. What the justices couldnt agree on was the reason why the California court could not exercise jurisdiction. A plurality of four, led by Justice OConnor, concluded that there must be some action on the part of a defendant that is purposefully directed toward the forum state in addition to placing a product in the stream of commerce with the expectation that it will reach the forum state through a nationwide market. 480 US at 112. In any event, without regard to the stream of commerce question, Californias exercise of jurisdiction was unfair and unreasonable. Id. at 11415. Another plurality of four, in an opinion by Justice Brennan, found no need for any such showing of [additional] conduct directed toward the forum: The stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale. As long as a participant in this process is aware that the final product is

21 being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise. Nor will the litigation present a burden for which there is no corresponding benefit. A defendant who has placed goods in the stream of commerce benefits economically from the retail sale of the final product in the forum State, and indirectly benefits from the State's laws that regulate and facilitate commercial activity. These benefits accrue regardless of whether that participant directly conducts business in the forum State, or engages in additional conduct directed toward that State. Accordingly, most courts and commentators have found that jurisdiction premised on the placement of a product into the stream of commerce is consistent with the Due Process Clause, and have not required a showing of additional conduct. 480 US at 117. However, Justice Brennans opinion also concluded that in this rare case, concepts of fair play and substantial justice defeated jurisdiction despite the fact that defendant purposefully engaged in forum activities. Id. at 116. Justice Stevens concurred in the judgment but also declined to join Justice OConnors opinion, and stated: In most circumstances I would be inclined to conclude that a regular course of dealing that results in deliveries of over 100,000 units annually over a period of several years would constitute "purposeful availment" even though the item delivered to the forum State was a standard product marketed throughout the world. 480 US at 122.

22 CTE argued in support of its Petition to this court that both plurality opinions in Asahi found a stream of commerce rationale insufficient, and that Justice Brennan required something additional despite his statement to the contrary. Memorandum in Support of Petition, p. 17. It no longer

advances that argument, and indeed acknowledges that there was no controlling decision in the case. See Opening Brief at 10-11. This courts decision in Hydraulic was consistent with Justice Brennans opinion in Burger King, and the latter opinion was untouched by the disarray in Asahi. After Nicastro: Nothing has changed. CTE now contends that the court accomplished in J. McIntyre Machinery, Ltd., v. Nicastro, ___ US ___, 131 SCt 2780 (2011) what it could not do in Asahi. That argument doesnt survive a careful look at the opinion. In Nicastro, a British manufacturer of scrap metal machines sold them to an independent United States distributor. That distributor sold one

machine3 to Nicastros New Jersey employer. Nicastro was injured on the job in New Jersey.
3

131 SCt at 2786.

Justice Kennedy, writing for a

The Kennedy plurality states that no more than four machines ended up in new Jersey but notes parenthetically that the record suggests only one. 131 SCt at 2786. The Breyer opinion states one machine was sold to New Jersey. 131 SCt at 2791 (Breyer, concurring).

23 plurality of four, would have held that placing goods into the stream of commerce would justify the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State. 131 SCt at 2788. Justice Breyer, joined by Justice Alito, concurred in the judgment: [T]hough I agree with the plurality as to the outcome of this case, I concur only in the judgment of that opinion and not its reasoning. 131 SCt at 2794. The case, he said, involved a single isolated sale, and the court had never found a single sale sufficient to establish jurisdiction. 131 SCt at 2792. There was no regular flow of business, no regular course of sales. Id. It was in this context that Justice Breyer cited all three Asahi opinions. All three of them, he pointed out, strongly suggested that a single sale of a product would not be sufficient even if that defendant places the product in the stream of commerce, fully aware (and hoping) that such a sale will take place: Justice OConnor required something more than the stream of commerce; Justice Brennan required a regular and anticipated flow, something other than an eddy or isolated sale; and Justice Stevens stated that the volume, the value, and the hazardous character of the product

24 would affect the jurisdictional inquiry. 131 SCt at 2792 (with citations to the Asahi opinions).4 CTE wants to transform Justice Breyers citation to Justice OConnors Asahi opinion into an agreement with the stream-of-commerce plus rationale expressed there (despite his simultaneous citation to the conflicting Asahi opinions) and hence an agreement with the Kennedy plurality in Nicastro (despite his clear statement that he was concurring only in the judgment of [the plurality] and not its reasoning.). Nicastro cannot credibly be characterized as a 6-3 decision. CTEs Opening Brief at 17; Brief of Amicus Curiae PLAC at 15. Both CTE and Amicus Curiae PLAC also cite Breyers rejection of the New Jersey Supreme Courts absolute approach, as if that approach were synonymous with the stream of commerce rationale articulated in World-Wide Volkswagen and Burger King. See CTE Opening Brief at 17; Brief of Amicus Curiae PLAC at 17. It was not. The New Jersey courts approach was absolute precisely because, as stated and as applied, it
4

This court has also held that a single event, an isolated transaction, will not be enough to support jurisdiction. See State ex rel Jones v. Crookham, 296 Or 735, 741, 743, 681 P2d 103 (1984)(involving what the majority called the lease of a single piece of office equipment, and what the concurrence termed a one-time, indirect, largely unplanned transaction.); Sutherland v. Brennan, 321 Or 520, 901 P2d 2409 (1995)(where the transaction was isolated, a one-time disposition of certain funds, with only a fortuitous connection with Oregon, there was no jurisdiction).

25 would permit jurisdiction where there was only a single, isolated transaction, no matter how large or small the manufacturer, no matter how distant the forum, and no matter how few the number of items that end up in the particular forum at issue. 131 SCt at 2793 (Breyer, J., concurring). In fact, twenty-five years later the United States Supreme Court has repeated in Nicastro the result it reached in Asahi, with four justices, but not a majority, wanting to restrict jurisdiction in a way others fear has little connection with the realities of interstate commerce and nationwide distribution of products. The pre-Asahi precedents retain their vigor. Three decades ago, Justice Linde expressed some doubt about a rule that directs court and counsel to turn every case of questionable jurisdiction into an issue, not of Oregon law, but of federal constitutional law. State ex rel Jones v. Crookham, 296 Or 735, 742, 681 P2d 103 (1984)(Linde, J., concurring). said: I doubt that the reach of "long-arm" jurisdiction under the statute is adequately defined by saying (1) that the statute means to reach as far as the Federal Constitution permits, and (2) that the Constitution permits whatever is fair. The effect of this approach is to direct the trial court and counsel, whenever a plaintiff has adequately alleged the doing of business or the commission of a tort, to engage in a constitutional dispute about the federal boundaries of state jurisdiction with little guidance from the United States Supreme Court and by a standard of "fairness" which this Regarding the statute that preceded ORCP 4, Justice Linde

26 court has described as "nebulous." See Neptune Microfloc, Inc. v. First Florida Utilities, Inc., 261 Or 494, 497, 495 P2d 263 (1972). State ex rel Academy Press v. Beckett, 282 Or 701, 581 P2d 496 (1978)(Linde, J., concurring). This, one should note, was said at a time when the United States Supreme Court could still reach a majority conclusion. Even so, Justice I

Linde phrased his concurrence as requiring a degree of prescience:

concur with the Court that if this case reached the Supreme Court, it would probably be decided against jurisdiction in Oregon. State ex rel Jones v. Crookham, supra, 296 Or at 742 (Linde, J., concurring). This court would only make that situation worse by trying to predict whether and when the United States Supreme Court will modify the rules it has thus far declined to reinvent. The courts opinions in Nicastro have changed nothing. The

principles established in that courts previous decisions are still valid, and this courts decisions applying them are still good precedents, not just relics of a foregone time.

27 Oregon jurisdiction is consistent with due process. As already stated, more than 1100 times in two years a wheelchair was purchased in Oregon that contained a CTE battery charger as a component. This was no isolated occurrence; it may not have been a river, but it was a stream, a steady flow and not a mere eddy. CTE says there is no evidence it had any knowledge that Invacare was a nationwide distributor. CTE Opening Brief at 22. This sounds

unconvincingly nave for a company that sells products worth less than $50 each to a manufacturer to use as a component in a wheelchair, and does so on a large enough scale to reach $2,100,000 in total sales over a two-year period. The very size of the supply Invacare demanded is telling. CTE must have expected and clearly profited from the nationwide scope of Invacares market. In any event, the supply agreement itself contains indications of Invacares nationwide distribution. To quote this court in Hydraulic

Servocontrols, 294 Or at 389, but with the obvious substitutions where indicated: [CTE], having sold a product with the intention of deriving economic benefit from a national market, including Oregon, can expect to be haled into court in Oregon when a product containing its allegedly defective [battery charger] is purchased here and causes injury to a resident.

28 And in this case, unlike Hydraulic Servocontrols, the accident, and not just its financial consequences, occurred in Oregon. There are no other considerations that should lead the court to discount the strength of these minimum contacts. CTE has never

contended that Oregon is an inconvenient or unduly burdensome forum. As Justice Brennan commented: I cannot see how a defendants right to due process is violated if the defendant suffers no inconvenience. World-Wide Volkswagen, supra, 444 US at 309 (Brennan, J., dissenting). In any event, CTE told the trial court that CTE is not, at least at this point, challenging Oregon jurisdiction on the basis that it does not comport with traditional notions of fair play or substantial justice. CTEs Supplemental Reply in Support of its Motion to Dismiss, p. 8 (ER 177). It still is making no such argument. On this record, Oregons exercise of jurisdiction over these claims comports with due process, and the trial court properly denied CTEs motion to dismiss.

29 CONCLUSION The alternative writ should be dismissed. Respectfully submitted, /s/ Kathryn H. Clarke Kathryn H. Clarke OSB 791890 Jeffrey A. Bowersox OSB 814422 Attorneys for Adverse Parties Willemsen

CERTIFICATE OF COM PLIANCE Brief length: I certify that this brief complies with the word-count limitation in ORAP 5.05(2)(b) and 9.05(3), and the word count of this brief is 7271 words. Type size: I hereby certify that the size of the type in this brief is not smaller than 14 point for both text and footnotes as required by ORAP 5.05(4)(f). CERTIFICATE OF SERVICE AND FILING I certify that on this date I electronically filed the foregoing Plaintiffs Answering Brief with the State Court Administrator and by so doing caused a true copy to be served electronically on: Mary-Anne Rayburn Jonathan M. Hoffman Joan L. Volpert Martin Bischoff Templeton Langlet & Hoffman LLP 888 SW Fifth Avenue Suite 900 Portland, Oregon 97204 Attorneys for Defendants-Relators George S. Pitcher Rachel A. Robinson Williams Kastner & Gibbs PLLC 888 SW Fifth Avenue Suite 600 Portland, Oregon 97204-2025 Attorneys for Amicus Curiae Product Liability Advisory Committee, Inc. Lisa T. Hunt Law Office of Lisa T. Hunt, LLC 1618 SW First Avenue Suite 350 Portland, Oregon 97201 Attorney for Amicus Curiae Oregon Trial Lawyers Association

2 The Honorable Richard C. Baldwin Multnomah County Circuit Court Multnomah County Courthouse 1021 SW Fourth Avenue Portland, Oregon 97204 DATED this 29th day of March, 2012. /s/ Kathryn H. Clarke Kathryn H. Clarke OSB 791890 Attorney for Adverse Parties Willemsen

January 19, 2012 04:00 PM

IN THE SUPREME COURT OF THE STATE OF OREGON Supreme Court No. S059201 JEFFREY WILLEMSEN, as Personal Representative of the Estate of KARLENE Multnomah County Circuit Court J. WILLEMSEN; and JAMES Case No. 0902-01653 WILLEMSEN, individually, Plaintiffs-Adverse Parties, v. INVACARE CORPORATION, a foreign corporation; UNITED SEATING & MOBILITY, LLC, a foreign limited liability company; MOTION CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD., a foreign corporation; PASS & SEYMOUR, INC., a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, INC., f/k/a Siemens Energy and Automation, Inc., a foreign corporation; SUMMERS GROUP, INC., dba REXEL, a foreign corporation; and GAW ELECTRIC, INC., an Oregon corporation, Defendants, and CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; and CTE TECH CORP., a foreign corporation, Defendants-Relators BRIEF OF AMICUS CURIAE PRODUCT LIABILITY ADVISORY COUNSEL, INC. On Alternative Writ of Mandamus to an Order of the Circuit Court for Multnomah County, Honorable Richard C. Baldwin, Judge January 2012 MANDAMUS PROCEEDING

George S. Pitcher, OSB No. 963982 Rachel A. Robinson, OSB No. 084550 WILLIAMS, KASTNER & GIBBS PLLC 888 SW Fifth Avenue, Suite 600 Portland, OR 97204-2025 Tel: (503) 228-7967 Email: gpitcher@williamskastner.com rrobinson@williamskastner.com Attorneys for Amicus Curiae Product Liability Advisory Committee, Inc. Jeffrey A. Bowersox, OSB No. 814422 THE BOWERSOX LAW FIRM PC 5385 Meadows Road, Suite 320 Lake Oswego, OR 97035 Tel: (503) 452-5858 Email: jeffrey@blfpc.com Kathryn H. Clarke, OSB No. 791890 Attorney at Law P.O. Box 11960 Portland, OR 97211 Tel: (503) 460-2870 Email: kathrynhclarke@mac.com Attorneys for Plaintiffs-Adverse Parties Richard C. Pearce, OSB No. 762842 Attorney at Law 921 SW Washington St., Ste. 755 Portland, OR 97205 Tel: (503) 223-2966 Email: rcp@hevanet.com Co-Counsel for Plaintiffs-Adverse Parties Walter H. Sweek, OSB No. 620920 COSGRAVE, VERGEER KESTER LLP 888 SW Fifth Avenue, Suite 500 Portland, OR 97204 Tel: (503) 323-9000 Email: wsweek@cvk-law.com Attorneys for Defendant Invacare Corporation, Motion Concepts, Inc. and Perpetual Motion Enterprises Mary-Anne Rayburn, OSB No. 803680 Jonathan M. Hoffman, OSB No. 754180 Joan L. Volpert, OSB No. 803942 MARTIN BISCHOFF TEMPLETON LANGSLET & HOFFMAN LLP 888 SW Fifth Avenue, Suite 900 Portland, OR 97204 Tel: (503) 224-3113 Email: mrayburn@martinbishoff.com jhoffman@martinbishoff.com jvolpert@martinbishoff.com Attorneys for Defendants-Relators

Jay W. Beattie, OSB No. 871631 LINDSAY HART NEIL & WEIGLER LLP 1300 SW Fifth Avenue, Suite 3400 Portland, OR 97201 Tel: (503) 226-7677 Email: jbeattie@lindsayhart.com Attorneys for Defendant United Seating & Mobility, LLC Joshua P. Stump, OSB No. 974075 HARRANG LONG GARY RUDNICK, PC 1001 SW Fifth Avenue, 16th Floor Portland, OR 97204 Tel: (503) 242-0000 Email: joshua.stump@harrang.com Christine F. Miller, Pro Hac Vice Julia T. Farrell, Pro Hac Vice J. Claire Todorovich, Pro Hac Vice 190 Carondelet Plaza, Ste. 600 St. Louis, MO 63105 Tel: (314) 480-1911 Email: christine.miller@huschblackwell.com
julia.farrell@huschblackwell.com claire.todorovich@huschblackwell.com

Ronald J. Clark, OSB No. 880328 BULLIVANT HOUSER BAILEY PC 888 SW Fifth Avenue, Suite 300 Portland, OR 97204 Tel: (503) 499-4413 Email: ron.clark@bullivant.com Attorneys for Defendant Pass & Seymour, Inc. Ryan McLellan, OSB No. 023908 SMITH FREED & EBERHARD, PC 111 SW Fifth Avenue, 43rd Floor Portland, OR 97204 Tel: (503) 227-2424 Email: rmclellan@smithfreed.com Attorneys for Defendant Summers Group, Inc.

Attorneys for Defendant Siemens Industry Inc. Heather C. Beasley, OSB No. 965443 DAVIS ROTHWELL EARLE & XOCHIHUA 111 SW Fifth Avenue, Suite 2700 Portland, OR 97204 Tel: (503) 222-4422 Email: hbeasley@davisrothwell.com Attorneys for Defendant GAW Electric, Inc.

TABLE OF CONTENTS STATEMENT OF THE CASE ...............................................................................1 A. Nature of Action and Relief Sought ...............................................................1 B. Nature of Judgment Sought to be Reviewed...................................................2 C. Basis for Appellate Jurisdiction......................................................................2 D. Relevant Dates for Appeal .............................................................................2 E. Questions Presented on Appeal ......................................................................3 F. Summary of Argument ...................................................................................3 G. Summary of Facts ..........................................................................................5 ASSIGNMENT OF ERROR...................................................................................5 A. Preservation of Error......................................................................................5 B. Standard of Review........................................................................................5 C. Argument .......................................................................................................6 1. Jurisdiction cannot lawfully be exercised based solely on placement of a product into the stream of national commerce. ............................................9 2. There are no facts from which it could be found that CTE purposely availedof itself of the privilege of acting in Oregon. ..............................18 CONCLUSION ....................................................................................................21

ii

TABLE OF AUTHORITIES Page(s) STATE CASES Asahi Metal Industry Co. Ltd. v. The Superior Court of Solano County, 39 Cal 3d 35, 702 P2d 543 (Cal. 1985) .......................................................12 Ram Tech. Servs., Inc. v. Koresko, 240 Or App 620, 247 P3d 1251 (2011) .........................................................6 State ex rel Circus Circus Reno, Inc. v. Pope, 317 Or 151, 854 P2d 461 (1993)...................................................................8 State ex rel Hydraulic Servocontrols Corp. v. Dale, 294 Or 381, 657 P2d 211 (1982)........................1, 4, 9, 10, 11, 12, 18, 19, 24 State ex rel Sweere v. Crookham, 289 Or 3, 609 P2d 361 (1980)...................................................................6, 7 Sutherland v. Brennan, 131 Or App 25, 883 P2d 1318 (1994), aff on other grounds, 321 Or d 520, 901 P2d 240 (1995)...............................................................................6

FEDERAL CASES Asahi Metal Industry, Ltd. v. Superior Court of California, 480 US 102, 107 S Ct 1026, 94 L Ed 2d 92 (1987) .........8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22 Burger King Corp. v. Rudewicz, 471 US 462, 105 S Ct 2174, 85 L Ed 2d 528 (1985) .....................................9 Goodyear Dunlop Tires Operations, S.A. v. Brown, __ US __, 131 S Ct 2846, 180 L Ed 2d 796 (2011) .......................................7 Hanson v. Denckla, 357 US 235, 78 S Ct 1228, 2 L Ed 2d 1283 (1958) .....................................22 J. McIntyre Machinery, Ltd. v. Nicastro, 546 US __, 131 S Ct 2780, 180 L Ed 2d 765 (2011) ............1, 3, 4, 8, 9, 10, 14, 15, 16, 17, 18, 19, 21, 22

iii

World-Wide Volkswagen Corp. v. Woodson, 444 US 286, 100 S Ct 559, 62 L Ed 2d 490 (1980) ..................... 9, 11, 13, 16

STATE STATUTES ORS 34.120 .......................................................................................................2 ORS 34.250(1)...................................................................................................2

RULES ORAP 8.15 ........................................................................................................3 ORCP 4 .............................................................................................................6 ORCP 4 D..................................................................................................7, 8, 9 ORCP 4 L ..........................................................................................................8

CONSTITUTIONAL PROVISIONS Fourteenth Amendment of the United States Constitution..............................passim Article VII (Amended), 2 of the Oregon Constitution ..........................................2

STATEMENT OF THE CASE A. Nature of Action and Relief Sought This is a mandamus proceeding arising out of the circuit court denial of s defendants CTE Tech Corp. and China Terminal & Electric Corp. ( s CTE ) motion to dismiss for lack of personal jurisdiction. This Court granted CTE s petition for mandamus relief, and issued an alternative writ commanding Multnomah County Circuit Court Judge Richard C. Baldwin to vacate his order denying CTE motion to dismiss and enter an order granting the motion, or to s show cause his reason for not doing so within 14 days. Because Judge Baldwin did not vacate the order or show cause, CTE requests that this Court grant its motion to dismiss or issue a peremptory writ commanding Judge Baldwin to vacate the order denying the motion to dismiss and enter an order dismissing the claims against it. In deciding this case, the Court should issue a clear opinion adopting (as it must) the personal jurisdiction principles from J. McIntyre Machinery, Ltd. v. Nicastro ( Nicastro 546 US ), , 131 S Ct 2780,

180 L Ed 2d 765 (2011) and confirming that the stream of commerce theory set forth in State ex rel Hydraulic Servocontrols Corp. v. Dale ( Hydraulic Servocontrols 294 Or 381, 657 P2d 211 (1982) is no longer the law of ), Oregon.

PLAC is aligned with the ) Product Liability Advisory Counsel, Inc. ( position of CTE in this action. B. Nature of Judgment Sought to be Reviewed The judgment sought to be reviewed is the circuit court order denying CTE motion to dismiss for lack of jurisdiction. s C. Basis for Appellate Jurisdiction This is a mandamus proceeding under the Court original jurisdiction, s pursuant to ORS 34.120, ORS 34.250(1), and Article VII (Amended), Section 2 of the Oregon Constitution. D. Relevant Dates for Appeal The circuit court order denying CTE motion to dismiss for lack of s personal jurisdiction was entered on January 25, 2011. On February 15, 2011, CTE petitioned this Court for an alternative writ of mandamus. The petition was denied on March 7, 2011. On April 15, 2011, CTE petitioned the United States Supreme Court for a writ of certiorari. The petition was granted. On October 3, 2011, the U.S. Supreme Court vacated this Court order denying CTE petition for s s alternative writ of mandamus, and remanded the case for further consideration in light of its decision in Nicastro. On November 10, 2011, this Court granted CTE petition for alternative s writ of mandamus and the writ issued. The writ commanded Judge Baldwin to

vacate his order denying CTE motion to dismiss for lack of personal s jurisdiction and to enter an order granting the motion, or to show cause his reason for not doing so within 14 days. Judge Baldwin did not vacate the order and did not show cause within the required time. CTE opening brief was filed on January 12, 2012. Pursuant to ORAP s 8.15, PLAC timely filed its application to appear amicus curiae with this brief on January 19, 2012. See ORAP 8.15(1)-(4), (6). E. Questions Presented on Appeal 1. In light of the United States Supreme Court decision in Nicastro, s

did the circuit court err in ruling that personal jurisdiction may lawfully be exercised over a non-resident component part manufacturer that merely placed its product in the stream of national commerce and took no action purposefully directed at the Oregon market? 2. Does the Nicastro decision require this Court to abandon the

stream of commerce theory set forth in Hydraulic Servocontrols? F. Summary of Argument The Due Process Clause of the Fourteenth Amendment of the United States Constitution establishes an absolute limit on a state authority to s exercise personal jurisdiction over a non-resident defendant. It requires that, for the assertion of jurisdiction to be lawful, a non-resident defendant must have

certain minimum contactswith the forum state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. In Nicastro, the United States Supreme Court issued an important ruling that clarified the Court confusing prior law regarding application of the s minimum contacts test to a non-resident defendant whose product ultimately ends up in the forum state through the stream of commerce. The Nicastro decision established that mere placement of a product into the stream of commerce does not satisfy the minimum contacts requirement, and that the stream of commerce theory adopted by this Court in Hydraulic Servocontrols, therefore, does not comply with the Due Process clause. This Court needs to clarify that Hydraulic Servocontrols is no longer controlling in its ruling in this case. Under the minimum contacts standard announced by the U.S. Supreme Court, the factual record in this case is woefully inadequate to support the lawful exercise of jurisdiction over CTE, a Taiwanese corporation with no physical or business presence or activities in Oregon. CTE sole, attenuated s connection to the state of Oregon is that a small number of component parts that it manufactured and sold in Ohio ended up in finished products that were sold in Oregon without its knowledge through the distribution activities of another company over which CTE had no control. In other words, CTE has no connection to Oregon other than that a component part which it placed into the

stream of commerceended up here. Because plaintiffs failed to prove anything more than just placement of component parts into the stream of commerce, jurisdiction cannot lawfully be exercised over CTE in this case. Product Liability Advisory Council, Inc. ( PLAC is a non-profit ) corporation with 102 corporate members representing a broad cross-section of American and international product manufacturers. Its corporate members include manufacturers and sellers of a wide array of products, including automobiles, aircrafts, electronics, chemicals, pesticides, pharmaceuticals, and medical devices. Because many of PLAC members are named as defendants s in lawsuits involving products that are distributed in interstate and international commerce, PLAC has an important interest in the proper interpretation of the stream of commerce theory of personal jurisdiction. G. Summary of Facts PLAC adopts CTE statement of facts. s ASSIGNMENT OF ERROR A. Preservation of Error PLAC adopts CTE statements regarding preservation of error. s B. Standard of Review When the circuit court makes no express findings, this Court assume[s] that the [circuit] court found facts consistent with its judgment" and "review[s] the court's assumed factual findings to determine whether they are supported by any competent evidence[.]" Ram Tech. Servs., Inc. v. Koresko, 240 Or App

620, 636, 247 P3d 1251 (2011) (quoting Sutherland v. Brennan, 131 Or App 25, 28, 883 P2d 1318 (1994), aff on other grounds, 321 Or 520, 901 P2d 240 d (1995)). Once the jurisdictional facts are established, the Court reviews the personal jurisdiction determination for errors of law. Ram Tech. Servs., Inc., 240 Or App at 636. C. Argument Two considerations determine the existence of personal jurisdiction over a non-resident defendant. State ex rel Sweere v. Crookham ( Sweere 289 Or ), 3, 6, 609 P2d 361 (1980). First, whether the facts of the case fit within one of the provisions of ORCP 4. Id. Second, whether the assertion of jurisdiction comports with the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Id.; see also Goodyear Dunlop Tires Operations, S.A. v. Brown ( Goodyear ), US , 131 S Ct 2846, 2850, 180 L Ed 2d 796

(2011) (holding that, because state court assertion of jurisdiction exposes a s defendants to the State coercive power, [it] is therefore subject to review for s compatibility with the Fourteenth Amendment Due Process Clause s ) (emphasis in original omitted). The plaintiff bears the burden of proving facts sufficient to establish that the court may lawfully exercise personal jurisdiction over the defendant. Sweere, 289 Or at 7. In this case, plaintiffs argued that two provisions of the long-arm statute permit the exercise of personal jurisdiction against CTE ORCP 4 D, which

governs jurisdiction over local injuries arising out of foreign acts and omissions,1 and ORCP 4 L, the catchall provision which extends jurisdiction over a non-resident defendant to the full extent permitted by the Due Process Clause. Plaintiffsargument is not well taken for two reasons. First, there is no basis for jurisdiction under ORCP 4 D because plaintiffs did not prove that CTE engaged in solicitation or service activities in Oregon or that CTE products s were used or consumed in Oregon within the ordinary course of the trade. See ORCP 4 D. Without facts from which the circuit court could find solicitation or service activities or consumption in the ordinary course of the trade, ORCP 4 D does not apply. Second, even if plaintiffs had met their burden of satisfying ORCP 4 D on its face, jurisdiction cannot be exercised in this case because it would violate the Due Process Clause under the U.S. Supreme Court decisions in Asahi s Metal Industry, Ltd. v. Superior Court of California ( Asahi 480 US 102, 107 ),
1

ORCP 4 D provides that jurisdiction may be exercised: In any action claiming injury to person or property within this state arising out of an act or omission outside this state by the defendant, provided in addition that at the time of the injury, either: D(1) Solicitation or service activities were carried on within this state by or on behalf of the defendant; or D(2) Products, materials, or things distributed, processed, serviced, or manufactured by the defendant were used or consumed within this state in the ordinary course of trade.

S Ct 1026, 94 L Ed 2d 92 (1987) and J. McIntyre Machinery, Ltd. v. Nicastro ( Nicastro 546 US , 131 S Ct 2780, 180 L Ed 2d 765 (2011). In other ), words, because the court cannot lawfully exercise jurisdiction, it does not matter whether the facts come within the plain language of ORCP 4 D or any other specific jurisdiction provision of the long-arm statute. Due process requires that a non-resident defendant have certain minimum contactswith the forum state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. World-Wide Volkswagen Corp. v. Woodson ( World-Wide Volkswagen 444 US 286, 297, ), 100 S Ct 559, 62 L Ed 2d 490 (1980). The court employs a two part test to determine whether the exercise of jurisdiction over a non-resident defendant comports with due process. State ex rel Circus Circus Reno, Inc. v. Pope, 317 Or 151, 159-60, 854 P2d 461 (1993). First, the defendant must have purposefully availed itself of the privilege of acting in the forum state and the s cause of action must arise out of or relate to the defendant activities within the forum. Id. Second, the exercise of jurisdiction must be reasonable. Id. Purposeful availment is shown if defendant the deliberatelyhas engaged in significant activities within a State or has created continuing obligationsbetween himself and residents of the forum. Burger King Corp. v. Rudewicz, 471 US 462, 475-76, 105 S Ct 2174, 85 L Ed 2d 528 (1985) (internal

citations omitted). The contacts must be more than random, fortuitous, or attenuated. Id. at 472-73, 475. Here, plaintiffs failed to satisfy their burden of proving that CTE purposefully availed itself of the privilege of acting in Oregon under the standard set forth by the U.S. Supreme Court in Asahi and Nicastro. The circuit court, therefore, erred in denying CTE motion to dismiss. s 1. Jurisdiction cannot lawfully be exercised based solely on placement of a product into the stream of national commerce.

In this case, plaintiffs argued that the exercise of jurisdiction over CTE is lawful under the stream of commerce theory recognized by this Court in State ex rel Hydraulic Servocontrols Corp. v. Dale ( Hydraulic Servocontrols 294 ), Or 381, 657 P2d 211 (1982), because CTE sold component parts to Invacare and Invacare targeted the national market. Thus, in plaintiffsview, CTE is subject to jurisdiction in each and every state in which an Invacare wheelchair containing one of its battery chargers has been sold, including Oregon. Plaintiffsargument is not well taken because two decisions of the U.S. Supreme Court Asahi and Nicastro establish that mere placement of a product into the stream of national commerce is not sufficient to impute jurisdiction to all of the forum states. In Hydraulic Servocontrols, the primary case upon which plaintiffs relied, the purchaser of a Cessna aircraft brought product liability claims against Hydraulic, a New York corporation that sold a component part to a California

10

engine manufacturer knowing it would be incorporated into an aircraft engine. 294 Or at 383. The finished plane was sold in Oregon to an Oregon corporation. Id. Hydraulic, which conducted no sales activity in Oregon and had no local presence or status, challenged the exercise of specific personal jurisdiction over it. Id. The Oregon Supreme Court framed the issue as follows: The issue is whether, by placing its product into the stream of American commerce so that it reaches consumers in Oregon by means of the commercial distribution activity of others, Hydraulic has sufficient contact with Oregon that exercise of jurisdiction is lawful when an Oregon resident is damaged by defects in that product. Id. The Court ultimately held that, although Hydraulic did not conduct any business in Oregon itself, jurisdiction could be exercised consistent with the Due Process Clause because the finished airplane was to be sold in the nationwide market and a lawsuit in Oregon was, therefore, foreseeable. Id. at 387-89. The Court national market foreseeability rationale was based on the s following dicta from the United States Supreme Court decision in World-Wide Volkswagen: When a corporation purposefully avails itself of the privilege of conducting activities within the forum State,(citation omitted) it has clear notice that it is subject to suit there, * * *. ***

11

[I]f the sale of a product of a manufacturer or *** distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others. The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum. 444 U.S. at 295. Hydraulic Servocontrols, 294 Or at 387-88. However, since this Court decision in Hydraulic Servocontrols, the s United States Supreme Court has twice rejected the national market foreseeability rationale and announced due process restrictions on the extent to which jurisdiction may lawfully be premised on the placement of a product into the stream of commerce. The national market foreseeability rationale was first rejected in Asahi. In Asahi, Cheng Shin, a Taiwanese manufacturer of motorcycle tire tubing, sought indemnity for an underlying product liability claim in California state court from Asahi, a Japanese manufacturer of tire valve assemblies. 480 US at 105-06. Asahi had done business with Cheng Shin for 10 years, and, between 1978 and 1982, had sold Cheng Shin 1.35 million valve assemblies. Id. at 106; Asahi Metal Industry Co. Ltd. v. The Superior Court of Solano County, 39 Cal 3d 35, 702 P2d 543, 545 (Cal. 1985). Approximately twenty

12

percent of Cheng Shin United States sales were in California, but Asahi s solicited no business and made no direct sales in California.2 Asahi, 480 US at 106, 108. Asahi had no offices, property, or agents in California. Id. at 108. The California Supreme Court held that, although Asahi did not design or control the distribution system for the finished tire tubes, it was aware of the system and knew it would benefit indirectly from Cheng Shin sales in s California. Id. at 108. It held that, because Asahi could foresee that some of its valves would be sold in California, the exercise of jurisdiction complied with the Due Process Clause. Id. at 108 The United States Supreme Court reversed. Justice O Connor, writing for a four-member plurality, stated as follows: Since World-Wide Volkswagen, lower courts have been confronted with cases in which the defendant acted by placing a product in the stream of commerce and the stream eventually swept defendant product s into the forum State, but the defendant did nothing else to purposefully avail itself of the market in the forum State. Some courts have understood the Due Process Clause, as interpreted by World-Wide Volkswagen, to allow an exercise of personal jurisdiction to be based on no more than the defendant act of placing the product in the stream of s commerce. Other courts have understood the Due Process Clause and the above-quoted language in World-Wide Volkswagen to require the action of the defendant to be more purposefully directed at the

The sale from Asahi to Cheng Shin took place in Taiwan. Asahi, 480 US at 106.

13

forum State than the mere act of placing a product in the stream of commerce. *** We now find the latter position to be consonant with the requirements of due process. The substantial connection,between the defendant and the forum State must come about by an action of the defendant purposefully directed toward the forum state. The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed to the forum State. Asahi, 480 US at 110-12 (opinion of O Connor, J.)(internal citations and emphasis omitted)(emphasis added). Justice O Conner suggested that the following additional conduct by a defendant may be sufficient for the exercise of jurisdiction: [D]esigning the product for the market in the forum State, advertising in the forum State, 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. at 112. Because there were no facts to establish any such additional conductby Asahi, Justice O Connor held that the exercise of personal jurisdiction exceeded the limits of due process. Id. at 112-13. Justice Brennan, joined by three other justices, disagreed with the additional conductrequirement set forth by Justice O Connor four-member s plurality. Id. at 116-17 (opinion of Brennan, J.). Justice Brennan plurality s took the view that jurisdiction premised on the placement of a product into the stream of commerce may be consistent with due process, long as [the [a]s

14

defendant] is aware that the final product is being marketed in the forum state. Id. at 117. In other words, jurisdiction cannot be asserted unless there are facts showing the defendant had actual knowledge that the final product was marketed in the specific forum. Thus, even under Justice Brennan approach, s jurisdiction cannot lawfully be exercised based on mere placement of a product into the national stream of commerce.3 The U.S. Supreme Court rejected the national market foreseeability rationale for the second time in Nicastro. In Nicastro, the plaintiff brought product liability claims against J. McIntyre Machinery, Ltd. ( McIntyre the J. ), English corporation that manufactured a metal-shearing machine which gave rise to the claims. 131 S Ct at 2786. The machine was manufactured in England, and was sold in the United States through a distributor. Id. J. McIntyre made no sales in the United States other than to the distributor, and no more than four machines ended up in New Jersey. Id. J. McIntyre officials attended annual scrap metal recycling conventions to advertise its products, but the conventions were never located in New Jersey. Id. The distributor coordinated its sales and advertising efforts with direction from J. McIntyre,

In a separate concurrence, Justice Stevens suggested that whether placement of a product into the stream of commerce satisfies due process turns on the volume, the value, and the hazardous characterof the product. Id. at 122 (Stevens, J., concurring in part and concurring in the judgment).

15

when possible, and J. McIntyre held U.S. patents for its recycling technology. Id. The New Jersey Supreme Court held that J. McIntyre was subject to personal jurisdiction in New Jersey for the product liability claim. Nicastro, 131 S Ct at 2785. It held that the exercise of jurisdiction was consistent with the Due Process Clause because J. McIntyre knew or reasonably should have known that its products are distributed though a nationwide distribution system that might lead to those products being sold in any of the fifty states. Id. at 2786. In a 6-3 decision, the United States Supreme Court reversed. Justice Kennedy, writing for a four-member plurality, adopted an approach consistent with Justice O Connor in Asahi. He explained that personal jurisdiction s requires a sovereign-by-sovereign analysis, and that the Court stream of s commerce language in World-Wide Volkswagen did not amend the general rule that the exercise of personal jurisdiction requires some act by which the purposefully avails itself of the privilege of conducting activities defendant within the forum State. . . . Nicastro, 131 S Ct at 2785, 2789 (opinion of Kennedy, J.). Justice Kennedy stated: This Court has stated that a defendant placing of s goods into the stream of commerce with the expectation that they will be purchased by consumers in the forum statemay indicate purposeful availment. But that statement does not amend the general rule of personal jurisdiction. It merely observes that a

16

defendant may in an appropriate case be subject to jurisdiction without entering the forum itself an unexceptional proposition as where manufacturers or distributors seek to servea given State market. s Id. at 2788. Thus, for the lawful exercise of jurisdiction, the defendant must have taken some action to target the specific forum. The principal inquiry in cases of this sort is whether the defendant activities manifest an intention to s submit to the power of a sovereign. In other words, the defendant must purposely avai[l] itself of the privilege of conducting activities within the forum, thus invoking the benefits and protections of its laws. Sometimes a defendant does so by sending its goods rather than its agents. The defendant transmission s of goods permits the exercise of jurisdiction only where a defendant can be said to have targeted the forum; as a general rule, it is not enough the defendant might have predicted that its goods will reach the forum State. Id. at 2788 (internal citations omitted) (emphasis added). Indeed, in rejecting the actual knowledge approach set forth by Justice Brennan in Asahi, Justice Kennedy stated: This Court precedents make clear that it is the s defendant actions, not his expectations, that s empower a State courts to subject him to judgment. s Nicastro, 131 S Ct at 2789. Justice Kennedy plurality held that there were no facts presented from s which the court could find that J. McIntyre engaged in conduct purposefully direct at New Jersey. Id. at 2790. The plurality noted that, while the facts may have shown an intent to serve the United States market, they did not show

17

purposeful availment of the New Jersey market. Id. Thus, the exercise of jurisdiction was not lawful. Id. at 2791. Justice Breyer, in a concurrence joined by Justice Alito, agreed that New Jersey could not assert personal jurisdiction over J. McIntyre, but felt the issue could be decided under existing precedent without announcing a rule of broad applicability. Nicastro, 131 S Ct at 2791 (opinion of Breyer, J). Notably, s however, Justice Breyer refused to adopt the New Jersey Supreme Court proposed rule that a manufacturer is subject to jurisdiction in product liability cases as long as it knows or reasonably should know that its products are distributed though a nationwide distribution system that might lead to those products being sold in any of the fifty states.Id. at 2793 (emphasis in original). Justice Breyer reasoned: For one thing, to adopt this view would abandon the heretofore accepted inquiry of whether, focusing upon the relationship between defendant, the forum, the and the litigationit is fair, in light of the defendant s contacts with that forum, to subject the defendant to suit there. It would ordinarily rest jurisdiction instead upon no more than the occurrence of a product-based accident in the forum State. But this Court has rejected the notion that a defendant amenability to s suit travel[s] with the chattel. Id. at 2793 (internal citations omitted)(emphasis in original). Although, read as whole, the United States Supreme Court decisions in Asahi and Nicastro do not conclusively establish the constitutionally permissible breadth and scope of the stream of commerce theory, one thing is

18

clear: mere placement of a product into the stream of national commerce is not sufficient to impute jurisdiction to each of the forum states. Hydraulic Servocontrols is no longer good law and this Court should make that clear in its ruling in this case. The Court ruling should set forth the following personal s jurisdiction principles from Nicastro: i Jurisdiction cannot lawfully be exercised over a non-resident defendant based upon mere placement of a product into the stream of national commerce; i Personal jurisdiction requires a sovereign-by-sovereign analysis. Thus, the minimum contacts analysis must focus on the defendants contacts with the specific forum in which suit is brought; and i Acts directed at the general United States market are not acts directed at a particular forum state for purposes of the minimum contacts analysis. 2. There are no facts from which it could be found that CTE purposely availeditself of the privilege of acting in Oregon.

The circuit court erred in denying CTE motion to dismiss because there s are no facts from which it could be found that CTE purposely availeditself of the privilege of conducting activities in Oregon. Regardless of the whether the

19

additional conduct or actual knowledge test is applied, the record in this case is insufficient to support the exercise of jurisdiction over CTE. Viewed as a whole, the record establishes only that a small number of CTE battery chargers that were sold to Invacare in Ohio ended up in Oregon s through Invacare distribution system. It is undisputed that CTE did not sell, s distribute, or advertise its battery charger in Oregon, and there are no facts that show any other activity of CTE directed at the Oregon market.4 (ER 34-35, 6-14). Because there is no evidence of additional conductby CTE directed at Oregon, CTE did not purposely avail itself of the privilege of acting in the state under the approach articulated by Justice O Conner in Asahi and Justice Kennedy in Nicastro. The evidence also is insufficient to satisfy Justice Brennan actual s knowledge test from Asahi. Although plaintiffs presented evidence that some of CTE batteries ended up in Oregon through Invacare distribution system, s s there is no evidence that CTE controlled the distribution system, knew that Invacare was marketing the finished wheelchairs in Oregon, or knew that Invacare actually sold any wheelchairs in this state. In fact, there is no evidence

Plaintiffs may argue that the provision of CTE contract with Invacare which s provides that CTE warrants and representsthat its product is manufactured, packaged, labeled and stored in accordance with all applicable federal, state, and local laws, ordinances, rules and regulations, now or hereafter in effect constitutes additional conductdirected at Oregon. That argument, however, is not well taken because there is no evidence that CTE, in fact, actually took any action to design the product or labeling for the Oregon market.

20

that CTE even knew that Invacare was a nationwide distributor. Thus, for all CTE knew, Invacare actual market for the finished wheelchairs could have s been limited to Ohio and bordering states, states on the east coast, or any number of other discrete regions or select states. Plaintiffsevidence that CTE is registered with the FDA, had an agent appointed in the United States for contractual and FDA-mandated contacts, and carried product liability insurance is irrelevant to the purposeful availment analysis in this case. This case concerns the Oregon state court exercise of s jurisdiction. Thus, it is CTE purposeful contacts with Oregon, not the United s States more generally, that are relevant. Nicastro, 131 S Ct at 2790 (opinion of Kennedy, J.); Id. at 2793 (opinion of Breyer, J.); see also Asahi, 480 US at 112 (opinion of O Connor, J.); Hanson v. Denckla, 357 US 235, 251, 78 S Ct 1228, 2 L Ed 2d 1283 (1958)(requirement that the defendant has "minimal contacts" with forum state is a consequence of territorial limitations on the power of the respective States ). The exercise of jurisdiction in this case does not satisfy the requirements of the Due Process Clause set forth in the U.S. Supreme Court stream of s commerce jurisprudence. CTE cannot, therefore, lawfully be subjected to jurisdiction in Oregon. The circuit court erred in denying the motion to dismiss.

21

CONCLUSION Plaintiffs failed to satisfy their burden of producing evidence from which the court could find that CTE had sufficient minimum contacts with the state of Oregon such that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. The United States Supreme Court has now twice made it clear that the stream of commerce theory adopted by the Oregon Supreme Court in Hydraulic Servocontrols does not comply with the Due Process Clause.

22

RESPECTFULLY SUBMITTED this 19th day of January, 2012. /s/ George S. Pitcher, OSB #963982 Attorneys for Amicus Curiae Product Liability Advisory Committee, Inc. WILLIAMS, KASTNER & GIBBS PLLC 888 SW Fifth Avenue, Suite 600 Portland, OR 97204-2025 Tel: (503) 228-7967 Fax: (503) 222-7261 Email: gpitcher@williamskastner.com

CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH AND TYPE SIZE REQUIREMENTS Brief length I certify that this brief (1) complies with the word-count limitation in ORAP 5.05(2)(b) and (2) the word-count of this brief (as described in ORAP 5.05(2)(a)) is 4,841 words. Type size I certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and the footnotes as required by ORAP 5.05(4)(f). WILLIAMS, KASTNER & GIBBS, PLLC

By:

s/ George S. Pitcher George S. Pitcher, OSB #963982 Rachel A. Robinson, OSB #084550

Attorneys for Amicus Curiae Product Liability Advisory Committee, Inc.

CERTIFICATE OF SERVICE AND FILING I hereby certify that on January 19, 2012 I electronically filed the foregoing BRIEF OF AMICUS CURIAE PRODUCT LIABILITY ADVISORY COUNSEL, INC. with the Oregon Supreme Court through the electronic filing portal, and on that same date caused to be mailed an original and 15 copies via certified mail, return receipt requested, postage prepaid, and deposited in the United States mail at the post office at Portland, Oregon, addressed as shown below: Appellate Court Administrator Appellate Court Records Section 1163 State Street Salem, OR 97301-2563 I further certify that on January 19, 2012 I served the foregoing BRIEF OF AMICUS CURIAE PRODUCT LIABILITY ADVISORY COUNSEL, INC. on the following attorneys by mailing two copies, via first class mail, postage prepaid, as addressed below: Jeffrey A. Bowersox THE BOWERSOX LAW FIRM PC 5385 Meadows Road, Suite 320 Lake Oswego, OR 97035 Kathryn H. Clarke Attorney at Law P.O. Box 11960 Portland, OR 97211 Attorneys for Plaintiffs-Adverse Parties Mary-Anne Rayburn Jonathan M. Hoffman Joan L. Volpert MARTIN BISCHOFF TEMPLETON LANGSLET & HOFFMAN LLP 888 SW Fifth Avenue, Suite 900 Portland, OR 97204 Attorneys for Defendants-Relators

Richard C. Pearce Attorney at Law 921 SW Washington St., Ste. 755 Portland, OR 97205 Co-Counsel for Plaintiffs-Adverse Parties

Walter H. Sweek COSGRAVE, VERGEER KESTER LLP 888 SW Fifth Avenue, Suite 500 Portland, OR 97204 Attorneys for Defendant Invacare Corporation, Motion Concepts, Inc. and Perpetual Motion Enterprises

Jay W. Beattie LINDSAY HART NEIL & WEIGLER LLP 1300 SW Fifth Avenue, Suite 3400 Portland, OR 97201 Attorneys for Defendant United Seating & Mobility, LLC

Ronald J. Clark BULLIVANT HOUSER BAILEY PC 888 SW Fifth Avenue, Suite 300 Portland, OR 97204 Attorneys for Defendant Pass & Seymour, Inc.

Joshua P. Stump HARRANG LONG GARY RUDNICK, PC 1001 SW Fifth Avenue, 16th Floor Portland, OR 97204 Christine F. Miller, Pro Hac Vice Julia T. Farrell, Pro Hac Vice J. Claire Todorovich, Pro Hac Vice 190 Carondelet Plaza, Ste. 600 St. Louis, MO 63105 Attorneys for Defendant Siemens Industry Inc.

Ryan McLellan SMITH FREED & EBERHARD, PC 111 SW Fifth Avenue, 43rd Floor Portland, OR 97204 Attorneys for Defendant Summers Group, Inc.

Heather C. Beasley DAVIS ROTHWELL EARLE & XOCHIHUA 111 SW Fifth Avenue, Suite 2700 Portland, OR 97204 Attorneys for Defendant GAW Electric, Inc. WILLIAMS, KASTNER & GIBBS, PLLC

By:

s/ George S. Pitcher George S. Pitcher, OSB #963982 Rachel A. Robinson, OSB #084550

Attorneys for Amicus Curiae Product Liability Advisory Committee, Inc.

Verified correct copy of original made under court administrator's direction 3/30/2012

FILED

March 28, 2012 07:43 PM

Appellate Court Records

IN THE SUPREME COURT OF THE STATE OF OREGON JEFFREY WILLEMSEN, as Personal Representative of the Estate of Karlene J. Willeinsen; and JAMES WILLEMSEN, individually, Plaintiffs-Adverse Parties,
V.

INVACARE CORPORATION, a foreign corporation; UNITED SEATING & MOBILITY, LLC, a foreign limited liability company; MOTION CONCEPTS, INC., a. foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS & SEYMOUR, INC., a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, INC., fka Siemens Energy and Automation, Inc., a foreign corporation; SUMMERS GROUP, INC., DBA REXEL, a foreign corporation; and GAW ELECTRIC, INC., an Oregon corporation, Defendants, and CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; and CTE TECH CORP., a foreign corporation, Defendants-Relators. Multnomah County Circuit Court 0902-01653 Supreme Court No. S059201 MANDAMUS PROCEEDING BRIEF ON THE MERITS OF AMICUS CURIAE OREGON TRIAL LAWYERS ASSOCIATION

Alternative Writ of Mandamus Order of the Multnomah County Circuit Court Honorable Richard C. Baldwin Lisa T. Hunt, OSB #023306 Law Office of Lisa T. Hunt, LLC 1618 SW First Avenue, Ste. 350 Portland, OR 97201 503-517-9852 lthunt@lthuntlaw.com Attorney for Amicirs Cui-iae Oregon Trial Lawyers Association

March 2012

TABLE OF CONTENTS 1.

Introduction . . . . . . . . .... . . . . . . . . . . . . . . . . . . . . : . . . . .. . . . . . . . . . . . . . . . .... . . . . . . . . ........

I1. Neither Nicastro nor Asahi alters the United States Supreme Court's "stream of commerce" analysis ...................................................... III. A brief overview of the controlling federal law ....................................... IV. Nothing should compel this court to reconsider its holding or analysis in Hydraulic Servo-Controls Corp........................................................ V. Jurisdiction similarly may be found under ORCP 4D(2) ..................

2 4

11 13 16

VI. Conclusion ........................................................................

11

TABLE OF AUTHORITIES CASES Asahi Metal Industry Co. v. Superior Court of 'Cal., Solano Cty.,
480 US 102, S Ct 1026 (1987) ...............................................2, 3, 4, 15

Breithaupt v. Abram,
352 US 432, 77 S Ct 408 (1957) ........................................................5

Burger King Corp. v. Rudzewicz,

471 US 462, 105 S Ct 2174 (1985) ........................................9, 10, 11, 17 CTS Corp. v. Dynamics Corp. of America, 481 US 69, 107 S Ct 1637 (1987) ....................................................2, 3

Int'l Shoe Co. v. State of Washington,

326 US 310, 66 S Ct 154 (1957) .....................................................5, 6 J. Mclntyre Machinery, Ltd. v. Nicastro, 564 US , 131 S Ct 2780 (201 1) . .. . ... ... .. . . ........... .. . ... ...... ...1, 2, 3, 4, 15

Mathews v. Eldridge,
424 US 319, 96 S Ct 893 (1976) ........................................................5

McGee v. Int'l Life Insurance Co.,

355 US 220, 78 S Ct 199 (1957) ....................................................6, 7

State ex rel Academy Press v. Beckett,

282 Or 701, 581 P2d 496 (1978) ..................................................11, 12

State ex rel Circus Circus Reno, Inc. ,

317 Or 151, 854 P2d 461 (1993) ...................................................1, 11

State ex rel. Hydraulic Servo-Controls Corp.. v. Dale,

294 Or 381, 657 P2d 211 (1982) ......................................1, 11, 13, 14, 15

State v. Farber
295 Or 199, 666 P2d 821 (1983) ........................................................3

World-Wide Volkswagen Corp. v. Woodson,

444 US 286, 107 S Ct 559 (1980) .......................................7, 8, 9, 13, 17

111

STATUTES, RULES AND CONSTITUTIONAL PROVISIONS U. S. Const., Amend. XIV, 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... . . . . . . . . . . .4 ORS14.035 ..........................................................................11, 12 ORCP41)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . ... 16 ORCP 41)(2) .........................................................1, 12, 13, 15, 16, 17 ORCP 4L .........................................................1, 4, I 1, 12, 13, 16, 17 OTHER AUTHORITY F. Merrill, Jurisdiction over Parties; Sefvice of Summons, Oregon Law Institute, 1980 Civil Procedure Rules (1981) ........................11

I. Introduction This mandamus proceeding arises in a products liability and wrongful death case involving a Taiwanese corporation, China Terminal & Electric Corp. and CTE Tech Corp. (collectively CTE), which has an exclusive contract for selling its products to a medical device manufacturer and distributer in the United States. Plaintiffs alleged that CTE "manufactures batteries and/or battery chargers" that were used in medical devices alleged to have caught fire, destroyed plaintiff s home, and killed plaintiff's decedent. The jurisdictional record in this case establishes that CTE's contract with the medical device corporation alerts it that the devices are manufactured in compliance with FDA regulations and in compliance with all state and local laws for distribution in the United States. ln light of the United States Supreme Court's recent decision in J.

Mclntyre Machinery, Ltd. v. Nicastro, 564 US , 131 S Ct 2780 (2011), the

questions before this court are (1) whether a trial court still may lawfully exercise personal jurisdiction over a foreign corporation under either ORCP 41)(2) or ORCP 4L, and (2) whether this court's decisions in State ex rel.

Hydraulic Servo-Controls Corp. v. Dale, 294 Or 381, 657 P2d 211 (1982) and,
to a lesser degree, State ex rel Circus Cir-cus Reno, Inc., 317 Or 151, 155, 854 P2d 461 (1993), remain good law.

-2The answer to those questions is a resounding "yes." Products liability cases require the continuing availability of redress for injuries caused by manufacturers of defective products that harm the citizens of Oregon. Under prevailing federal law, that redress remains available and United States Supreme Court decisions that antedate this court's controlling cases have not dampened their vitality.

II. Neither Nicastro nor Asahi alters the United States Supreme Court's "stream of commerce" analysis.
It is perplexing that defendants, CTE and amicus curiae Product Liability Advisory Counsel, Inc. (PLAC) believe that the United States Supreme Court's decision in Nicastro suddenly tipped the jurisprudence of in personam jurisdiction in their favor. It has not. Because no single analysis, rationale, or methodology has been supported by a majority of the court respecting determinations of a state court's lawful exercise of jurisdiction over nonresident defendants, the decision simply is not binding.
CTS Corp. v.

Dynamics Corp. ofAmerica, 481 US 69, 81, 107 S Ct 1637 (1987) (Because the
"plurality opinion ... did not represent the views of a majority of the Court, we are not bound by its reasoning.") In Nicastro, Four Justices opined that "in products-liability cases * * * it is the defendant's purposeful availment [of the privileges of conducting business within the forum state] that makes jurisdiction consistent with

-3`traditional notions of fair play, "' thereby authorizing courts to exercise personal jurisdiction over nonresident defendants. Nicastro, 131 S Ct at 2787. Two Justices opined that the case should and could have been decided by adhering to the Court's prior precedent alone. Id. at 2792. And three Justices

dissented, arguing that the "splintered majority" merely sought to "turn[] the clock back to the days before modern long-arm statutes when a manufacturer, to avoid being haled into court where a user is injured, need only Pilate-like wash its hands of a product by having independent distributors market it." Id. at 2795 (citations omitted). This is a plurality opinion, not one that issues from a majority of the Court. Accordingly, it cannot constitute binding precedent. CTS Corp., 481 US at 81; see also, State v. Farbej, 295 Or 199, 208 n 11, 666 P2d 821 (1983) (four person majority of Court not binding precedent). 1Vluch of the same holds true about Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 US 102, 107 S Ct 1026 (1987), a case the Nicastro plurality opines has left open "decades-old questions" regarding the "rules and standards for determining when a State does or does not have jurisdiction over an absent party[.]" Nicastro, 131 S Ct at 2785. In Asahi, the Court unanimously reversed the California Supreme Court's determination that a trial court properly had exercised personal jurisdiction over a Japanese corporation in that case. Asahi, 480 US 102, 105-08. However, the Court was

-4sharply divided as to the proper analysis to employ, l similarly establishing no binding precedent for long-arm jurisdiction cases involving product liability claims. Accordingly, this court's reliance on Supreme Court precedent that predates Nicastro and Asahi remains sound and its analysis in Hydraulic ServoControls Corp. under ORCP 4L remains good law. Determinations respecting the proper exercise of in personam jurisdiction over nonresident defendants that inject their products into the stream of commerce are controlled by the analysis in the below-described cases. M. A brief overview of the controlling federal law. The Due Process clause of the United States Constitution provides: "[N]or shall any State deprive any person life, liberty, or property, without due process of law U.S. Const., Amend. XIV, 1. It is a clause "measured by [a] whole community sense of `decency and fairness"' and not "by the yardstick of personal reaction or the sphygmogram of ` Four Justices joined in an analysis to require defendants do more than merely place a product into the stream of commerce before a court may determine that activities were purposefully directed toward the forum; Id. at 112; eight Justices joined in the Court's application of the factors for determining the reasonableness of the exercise of jurisdiction (as articulated in World-Wide Volkswagen Corp. v. Woodson, 444 US 286, 292, 107 S Ct 559 (l 980)); Id. at 113-16; and four Justices joined in the holding that the facts of that case did not establish the requisite minimum contacts to render the California court's exercise of personal jurisdiction over a Japanese corporation "consistent with fair play and substantial justice." Id at 116.

-5the most sensitive person." Breithaupt v. Abram, 352 US 432, 436, 77 S Ct 408 (1957). "It is on th[at] bedrock that th[e Supreme] Court has established the concept of due process." Id. "The essence of due process is the requirement that `a person in jeopardy of serious loss (be given) notice of the case against him and opportunity to meet it.' Joint Anti-Fascist Comm. v. McGrath, 341 U.S., at 171-172, 71 S.Ct., at 649. (Frankfurter, J., concurring). All that is necessary is that the procedures be tailored, in light of the decision to be made, to `the capacities and circumstances of those who are to be heard,' Goldberg v. Kelly, 397 U.S., at 268269, 90 S.Ct., at 1021 (footnote omitted), to insure that they are given a meaningful opportunity to present their case." Mathews v. Edridge, 424 US 319, 348-49, 96 S Ct 893 (1976). The clause places limits upon the power of state courts to enter binding judgments against persons not served with process within their boundaries, but the U. S. Supreme Court has determined that "due process requires only that in order to subject a defendant to litigation in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice."' Int'l Shoe Co. v. State of Washington, 326 US 310, 316, 66 S (1957). Justice Black observed that "there is strong emotional appeal in the words `fair play' and `justice,"' that they are not words "chosen by those who wrote the original Constitution or the Fourteentll Amendment," and, as such, should not be employed by the Supreme Court "to deprive a State of the right to Ct 154, 158

-6afford judicial protection to its citizens on the ground that it would be more `convenient' for the corporation to be sued somewhere else." Id. at 324-25

(Black, J., dissenting). Nevertheless, the Court continued to carve out the "minimum contacts" required to serve "the fair and orderly administration of the laws which it was the purpose of the due process c.lause to insure." 319. "[T]o the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protections of the laws of that state. The exercise of that privilege may give rise to obligations; and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue." Id. at 319. As the modernization of transportation and communications and the nationalization of commerce increased, the Court recognized the trend "toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents," acknowledging that it was "much less burdensome for a party sued to defend himself in a State where he engages in economic activity." McGee v. Int'l Life Insiirance Co., 355 US 220, 78 S Ct 199 (1957). Thus, in an insurance contract action, the due process protections of notice and a meaningful opportunity to be heard were served where a Texas insurance company was sued in Califonlia on its contract with a Califonlia resident. Id. at Id. at

-7224. The first Supreme Court decision involving a state's long-arm jurisdiction within the products liability context, was World-Wide hollcswagen

Corp., supra. In that case, plaintiffs had brought a product liability action
against various defendants after plaintiffs' vehicle was struck and caught fire in Oklahoma.

Wofld-Wide Volkswagen Cofp., 444

US at 288. Although the

defendant car manufacturer did not challenge the Oklahoma court's determination of lawful jurisdiction, the New York distributor and the New York retailer of the car did.

Id. at 290. ln detennining whether it was

"reasonable" or "fair" to sue those New York residents in Oklahoma, the Court recognized that "[i]mplicit in this emphasis on reasonableness is the understanding that the burden on the defendant, while always a primary concern, will in an appropriate case be considered in light of other relevant factors, including the forum State's interest in adjudicating the dispute * * * ; the plaintiff s interest in obtaining convenient and effective relief * * * at least when that interest is not adequately protected by the plaintiff s power to choose the forum * * * ; the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies ***."

Id. at 292.
Within that calculus, the mere foreseeability of injury due to the mobility of particular chattel was rejected as a sufficient benchmark for personal jurisdiction under the Due Process Clause.

Id. at 295. But the Court

-8emphasized that "foreseeability" was not "wholly irrelevant."

Id. at 297. "The

foreseeability that is critical to due process analysis * * * is [whether] the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." Id. Thus, the Court concluded that a finding of in personain jurisdiction on the basis of a"single, isolated incident" as in that case, would involve a forum contact that was too attenuated; a seller's "amenability to suit would [simply] travel with the chattel." Id. at 296, 299. The Court determined, however, that "if the sale of a product of a manufacturer or distributor *** is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others."

Id. at 297 (emphasis).

That stream of commerce analysis comports with all prior iterations of "fairness," ` justice," and what may be deemed "reasonable" in balancing the concerns of inconvenient litigation for a nonresident defendant with the plaintiff's and the state's interests in litigating product liability cases where a state citizen had been injured. It also contemplates instances when a manufacturer indirectly serves a market for its product. In other words, "[T]he forum State does not exceed its powers under the Due

-9Process Clause if it asserts personal jurisdiction over a corporation that delivers its products in to the stream of commerce with the expectation that they will be purchased by consumers in the forum State." Id. at 297-98. That is not a mere reiteration of the rejected notion that the mere foreseeability of harm could authorize a court's exercise of personal jurisdiction over a nonresident. It properly focuses the inquiry upon the conduct of the defendant, which is better positioned to "alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers," or restructuring its business activities or contractual relationships to otherwise minimize its exposure. Id. at 297. It also shifts the focus away from any

unilateral conduct of the injured consumer or plaintiff, which had served to defeat a finding of lawfully exercised personal jurisdiction over the out-of-state defendants in World-Wide Volkswagen Corp. The Court revisited and reemphasized those prior holdings in Burgef King Corp. v. Rudzewicz, 471 US 462, 105 S Ct 2174, 85 L Ed 2d 528 (1985). In determining whether a forum has specific jurisdiction (as opposed to general jurisdiction) over an out-of-state defendant, the Court first notes that the Due Process Clause requires that individuals have "fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign." King Coip., 471 US at 472. Biri-ger

-10"[T]his `fair warning' requirement is satisfied if the defendant has `purposefully directed' 11is activities at residents of the forum, and the litigation results fi- om alleged injuries that `arise out of or relate to' those activities. Thus `[t]he forum State [may] assert[] personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State' and those products subsequently injure forum consumers."

Id. at 472-73 (citations omitted) (emphasis added).

A forum legitimately may exercise personal jurisdiction over a nonresident defendant because the state "has a`manifest interest' in providing its residents with a convenient forum for redressing injuries inflicted by out of state actors." Id. at 473. "[W]here individuals `purposefully derive benefit' from their interstate activities, *** it may well be unfair to allow them to escape having to account in other States for consequences that arise proximately from such activities; the Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed. And because `modern transportation and communications have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity,' it usually will not be unfair to subject him to the burdens of litigating in another forum for disputes relating to such activity."

Id. at 473-74 (citations omitted).

Indeed, for purposes of this "stream of commerce" analysis, the Court determined that "the forum State's interest in adjudicating the dispute" combined with "the plaintiff s interest in obtaining convenient and effective relief' may "serve to establish the reasonableness of jurisdiction upon a lesser

-11showing of minimum contacts than would otherwise be required." Id. at 476-77 (citations omitted).

IV. Oregon's long-arm jurisdiction reaches CTE.

When the Council on Court Procedures drafted Oregon's long-arm jurisdiction rules, it sought to articulate the state's "particularized interests" in ORCP 4C through 4K, the rules governing the assertion of specific jurisdiction.

State ex rel. Hydraulic Servo-Controls Corp., 294 at 385 n 3(citing F. Merrill, Jurisdiction over Parties; Service of Sznnmons, in Oregon Law Institute, 1980
Civil Procedure Rules 230-31 (1981);

State ex rel Circus Circus Reno, Inc.,

317 Or at 155 (identifying "specific" jurisdiction rules requiring "a relationship between the state and the subject matter of the particular litigation.") Specific jurisdiction under those rules only may be found "if the action `arises out of defined activities by the defendant." State ex rel Circus Circus Reno, Inc. , 317 Or at 155 n 1(citing Merrill, Jurisdiction and Summons in Oregon 2(1986)). ORCP 4L, on the other hand, codifies the holding of State ex rel

Academy Press v. Beckett, 282 Or 701, 708, 581 P2d 496 (1-978) that former
ORS 14.035 was intended to reach the outer limits of due process. State ex rel.

Hydraulic Servo-Controls Corp., 294 Or at 384 n 2. Former ORS 14.035

(1978) authorized jurisdiction in Oregon courts when "any person, firm or corporation, whether or not a citizen or a resident of the state, [did] any of the actions enumerated [therein]" including "the commission of a tortious" act

-12within this state." The proper inquiiy for the court's exercise of jurisdiction under that long-arm statute remains largely unchanged: "(1) Does the case fall within the terms of ORS 14.035? If so, (2) Does due process permit an Oi -egon court, as a matter of constitutional law, to obtain and exei -cise personal jurisdiction over the defendant in such a case?"
State ex iel Acadeiny Piess, 282 Or at 708.

As pertinent here, specific jurisdiction Rule 4D(2) applies to cases involving local injuries arising from foreign acts or omissions, conferring jurisdiction in Oregon courts: "In any action claiming injury to person or property within this state arising out of an act or oinission outside this state by the defendant, provided in addition that at the time of the injury * * * [p]roducts, materials, or things distributed, processed, serviced, or manufactured by the defendant were used or consumed within this state in the ordinary course of trade." ORCP 41)(2). ORCP 4L confers jurisdiction in Oregon over nonresident defendants: "Notwithstanding a failure to satisfy the requirement of sections B through K of this rule, in any action wllere prosecution of the action against a defendant in this state is not inconsistent with the Constitution of this state or the Constitution of the United States." Applying either rule, the proper due process inquiry under prevailing federal law is whether defendant effectively delivered its product into the stream of commerce, either directly or indirectly, such that it derived economic benefit from product sales in Oregon and benefitted from Oregon's laws. If the

- 13 answer to that question is "yes," then it cannot be said that a nonresident defendant in a products liability case is immune from suit in Oregon wlien its product causes harrn to Oregon's citizens within this state. In this case, plaintiff correctly argues that personal jurisdiction properly may be exercised over CTE under either ORCP 41)(2) or ORCP 4L. The proper analysis for applying ORCP 41)(2) under prevailing Supreme Court precedent is set forth in Circus Cireus Reno, Inc. The proper analysis for applying ORCP 4L is set forth in that case and in Hyrdiaulic Seivo-Controls, Corp. Both cases provide sufficient guidance and both remain good law. V. Nothing should compel this court to reconsider its holding or analysis in Hydraulic Servo-Coutrols Corp.. This court decided Hydiazrlic Seivo-Controls Corp. in 1982 following the United States Supreme Court's decision in Woi-ld-Wide Volkswagen Coip.,
szrpra. This court understood World-Wide Volkswagen Corp.

to involve the

factually closest consideration of whether a manufacturer may be subjected to a products liability action in a state where it has no direct contacts.
Hydraulic Servo-Controls Corp., 294 Or at 386. State ex rel

Applying the controlling federal principles cited in that decision, this court determined that ORCP 4L properly conferred Oregon courts with
in

personain jurisdiction over defendant, Hydraulic Servo-Controls Corporation

(Hydraulic) under allegations that the New York company had defectively

- 14manufactured a component installed in an airplane that had malfunctioned and crashed. Plaintiff was the Oregon corporation that had purchased the airplane just two weeks prior to the crash. Id at 383-84. "[B]y placing its product in to the stream of American commerce so that it reaches consumers in Oregon by means of the commercial distribution activity of others, Hydraulic has sufficient contact with Oregon that exercise of jurisdiction is lawful when an Oregon resident is damaged by defects in that product."
Id.

This court correctly determined that the manufacturer of a defective product component may be sued in Oregon when it had "effectively `deliver[ed] its products into the stream of commerce with the expectation that they will be purchased by consumers in [Oregon]".
Id at 389. That is so, because that

manufacturer's business ha[d] been directly affected by sales transactions in Oregonit had derived both an economic benefit and it had benefited from the protections Oregon law afforded to the marketing of the airplane containing the allegedly defective product component. Id. "[H]aving sold a product with the intention to derive an economic benefit from a national market, including Oregon, Hyadraulic can expect to be hauled into court in Oregon when a product causes injury to a resident." Id. at 389. This analysis does not focus on the unilateral conduct of the ultimate consumer, it does not permit Hydraulic's amenability to suit merely to travel with the chattel, and it is not a determination arising from any rejected principles of foreseeability of harm. It follows United

- 15 States Supreme Court precedent that remains controlling and assesses state interests that remain compelling. The principles fol]owed remain vital irrespective of the Supreme Court's ongoing debate about how best to tailor or revisit its "stream of commerce" jurisprudence in either Asahi or Nicastro; there is no binding precedent that arises from those opinions. The Hydrrazilic Seivo-Controls Coj p. opinion focuses on the forum-related conduct and activities of the nonresident defendant in determining its amenability to suit. It continues to recognize the viability of modern long-ann statutes that fail to pennit negligent nonresident defendants from harming a state's citizens and then washing their hands "Pilate-like" of all accountability. It particularly fails to pennit dodging liability on the basis of arguments like those that defendant asserts here: (1) that it didn't directly market its product in Oregon; (2) that it didn't control the distribution of the final product such that it could anticipate the product reaching and being used in Oregon; and (3) that it couldn't know that the intended national distribution of the final product would or could include distribution in Oregon. Due process is served when a corporation, by placing its product in the stream of commerce, can expect that its hanns are answerable where that stream flows and where that product causes injury.
VI. Jurisdiction similarly may be found under ORCP 41)(2).

In State ex rel Circus Ciicus Reno, Inc., this court detennined that

-16Oregon could not exercise in personann jurisdiction over that defendant under ORCP 41)(1) because the plaintiff's injury had not occurred in Oregon. 317 Or at 155-56. It also determined that under ORCP 4L, although the defendant had the requisite minimum contacts with Oregon, plaintiff's negligence claim (arising from physical injuries sustained at defendant's Nevada property) did not arise out those contacts. Id. at 160. Those distinctions are not present here. Rather, plaintiff alleges that CTE manufactured a component installed in medical devices manufactured and distributed in the United States. The record shows that CTE's exclusive contract wit11 the medical device manufacturer expressly provided that the devices were being manufactured and distributed nationally in compliance with FDA regulations and all state and local laws. In other words, nothing in plaintiffs allegations or the record before the trial court would indicate that CTE's product would not derive "economic benefit from a national market, including Oregon" such that being sued in Oregon for injuries sustained from its product is unfair, unreasonable, unexpected, or otherwise occurred without adequate notice or a meaningful opportunity to present its case. VII. Conclusion Under ORCP 41)(2) plaintiff alleges injuries sustained in Oregon which arose from acts and oinissions committed by CTE elsewhere. Under ORCP 4L, plaintiff alleges death and property damage that arises from CTE's

-17manufacturing of a defective product component that it placed in the national stream of commerce and that reached and harmed Oregon residents. CTE is accountable in Oregon. Oregon courts properly may exercise in personam jurisdiction over CTE under either ORCP 4D(2) or ORCP 4L under the facts and record presented here. Applying the controlling principles articulated in
World-Wide Volkswagen Corp. and Bzrrgej King Corp., CTE is amenable to a

product liability and wrongfiil death suit brought in Oregon. Respectfully submitted on this 28`'' day of March, 2012,

ls/ Lisa T. Hiint

Lisa T. Hunt, OSB #023306 Counsel for Amicirs Czrriae Oregon Trial Lawyers Association

CERTIFICATE OF COMPLIANCE Brief length: I certify that this brief complies with the word-count limitation in ORAP 5.05(2)(b) and 9.05(3), and the word count of this brief is 4,798 words.
Type size: I hereby certify that the size of the type in this brief is not smaller than 14 point for both text and footnotes as required by ORAP 5.05(4)(f).

CERTIFICATE OF SERVICE AND FILING

I certify that on March 28, 2012 1 electronical]y filed the foregoing BRIEF ON THE MERITS OF AMICUS CURIAE OREGON TRIAL LAWYERS ASSOCIATION with the State Court Administrator and by so doing either caused a true copy to be served electronically on the following parties or served them by conventional email should the system have failed to provide such service: Mary-Anne Rayburn Jonathan M. Hoffinan Joan L. Volpert Martin Bischoff Templeton Langlet & Hoffinan LLP 888 SW Fifth Avenue, Suite 900 Portland, Oregon 97204 Attorneys for Defendants- Re lators Kathryn H. Clarke PO Box 11960 Portland OR 97211 Jeff Bowersox Bowersox Law Firm PC 5285 Meadows Rd Ste 320 Lake Oswego OR 97035

George S. Pitcher Richard C Pearce Rachel A. Robinson 1618 SW lst Ave Ste 240 Williams Kastner & Gibbs PLLC Portland OR 97201 888 SW Fifth Avenue, Suite 600 Of Attorneys for Plaintiffs-Adverse Portland, Oregon 97204-2025 Parties Attorneys for Anzicus CuNiae Product LiabilityAdvisory Committee, Inc. The Honorable Richard C. Baldwin Multnomah County Circuit Court Multnomah County Courthouse 1021 SW Fourth Avenue Portland, Oregon 97204

/s/ Lisa T. Hunt Lisa T. Hunt, OSB.#023306

Verified correct copy of original made under court administrator's direction 11 /15/2011

AppELLATE COURT ADMINISTRATO

FILE R
FEB 15 2011

IN THE SUPREME COURT OF THE STATE OF OREGON JEFFREY WILLEMSEN, as Personal Representative of the Estate of KARLENE J. WILLEMSEN and JAMES WILLEMSEN, Plaintiffs - Adverse Parties,
V.

_SUPREME COURT COURT OF APPEALS

Supreme Court No.

SC S

Multnomah County Circuit Court

No. 0902-01653

INVACARE CORPORATION, a foreign corporation; UNITED SEATING & MOBILITY, LLC, a foreign limited liability company; CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; CTE TECH CORP., a foreign corporation; MOTION CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS & SEYMOUR, INC., a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS fNDUSTRY, INC., f/k/a Siemens Energy and Automation, Inc., a foreign corporation; SUIVIlVIERS GROUP, INC., dba REXEL, a foreign corporation; and GAW ELECTRIC, INC., an Oregon corporation, Defendants, and CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; and CTE TECH CORP., a foreign corporation, Defendants-Relators .

PETITION FOR ALTERNATIVE WRIT OF MANDAMUS

FEE PAI
FEB 15 2011 BYC~~~2y~

3q ~0

February 2011 (Continued on next page)

Mary-Anne Rayburn, OSB No. 803680 Jonathan M. Hoffman, OSB No. 754180 Joan L. Volpert, OSB No. 803942 Martin Bischoff Templeton Langslet & Hoffman LLP 888 S.W. Fifth Ave., Ste. 900 Portland, OR 97204 Telephone: 503-224-3113 E-Mail: mra,yburn@martinbischoff.com ihoffinan@martinbischoff com jvolperta,martinbischoff.com Attorneys for Defendants-Relators

Jeffrey A. Bowersox, OSB No. 814422 The Bowersox Law Firm PC 5385 Meadows Road, Ste. 320 Lake Oswego, OR 97035 Telephone: 503-452-5858 E-Mail: jeffreygblfpc.com Attorney for Plaintiffs-Adverse Parties Richard C. Pearce, OSB No. 762842 Attorney at Law 921 S.W. Washington St., Ste. 755 Portland, OR 97205 Telephone: 503-223-2966 E-Mail: rcp(ahevanet.com Co-Counsel for Plaintiffs-Adverse Parties Walter H. Sweek, OSB No. 620920 Cosgrave Vergeer Kester LLP 805 S.W. Broadway, 8th Floor Portland, OR 97205 Telephone: 503-323-9000 E-Mail: wsweekna,cvk-law.com Attorney for Invacare Corporation, Motion Concepts, Inc. and Perpetual Motion Enterprises

(Continued on next page)

Jay W. Beattie, OSB No. 871631 Lindsay Hart Neil & Weigler LLP 1300 S.W. Fifth Ave., Ste. 3400 Portland; OR 97201 Telephone.: 5 03 -226-7677 E-Mail: jbeattie@lindsa,yhart.com Attorney for United Seating & Mobility, LLC Ronald J. Clark, OSB No. 880328 Bullivant Houser Bailey PC 888 S.W. Fifth Ave., Ste. 300 Portland, OR 97204 Telephone : 5 03 -499-4413 E-Mail: ron.clark@bullivant.com Attorney for Pass & Seymour, Inc. Heather C. Beasley, OSB No. 965443 Davis Rothwell Earle & Xochihua PC 111 S.W. Fifth Ave., Ste. 2700 Portland, OR 97204 Telephone : 5 03 -222 -4422 E-Mail: hbeasley@davisrothwell.com Attorney for GAW Electric, Inc. Joshua P. Stump, OSB No. 974075 Harrang Long Gary Rudnick, PC 1001 S.W. Fifth Ave., 16th Floor Portland, OR 97204 Telephone : 5 03 -242-0000 E-Mail: joshua.stump@larrang. com Attorney for Siemens Industry, Inc.

(Continued on next page)

Christine F. Miller, Admitted Pro Hac Vice Julia T. Farrell, Admitted Pro Hac Vice J. Claire Todorovich, Admitted Pro Hac Vice 190 Carondelet Plaza, Ste. 600 St. Louis, MO 63105 Telephone: E-Mail : Attorney for Siemens Industry Inc. Ryan McLellan, OSB No. 023908 Smith Freed & Eberhard, PC 111 S.W. Fifth Ave., 43rd Floor Portland, OR 97204 Telephone: 503-227-2424 E-Mail: rmclellangsmithfreed.com Attorney for Summers Group, Inc.

PETITION FOR ALTERNATIVE WRIT OF MANDAMUS Defendants-Relators CTE TECH CORP. and CHINA TERMINAL & ELECTRIC CORP. (a prior business name of CTE Tech Corp.) (hereinafter "CTE"), a Taiwanese corporation, alleges: 1. This Court has jurisdiction under Article VII (Amended), Section 2, of

the Oregon Constitution, ORS 34.120, and ORS 34.250. 2. CTE is one of 11 defendants in a Multnomah County Circuit Court

civil action entitled Jeffrey Willemsen, et al. v. Invacare Corp., et al., Multnomah County Circuit Court Case No. 0902-01653. 3. The adverse parties to this Petition are Jeffrey Willemsen, as personal

Representative of the Estate of Karlene J. Willemsen, and James Willemsen. 4. Plaintiffs filed this action for wrongful death and property damages

arising from a fire on February 1, 2008, in Portland, Oregon. Plaintiffs allege that Karlene J. Willemson died as a result of a fire which started in the bedroom of her home. The eleven defendants were allegedly involved in the design, manufacture, marketing, sale, or service of the motorized wheelchair, the motorized hospital bed, and various electrical components and accessories located in the bedroom where the fire allegedly originated.

5.

The complaint alleges that CTE is liable for manufacturing the battery

and/or battery charger that was a component of decedent's motorized wheelchair (ER-2). 6. Plaintiffs did not allege: (1) that CTE was aware that its products

were being sold in Oregon; (2) that CTE had any presence in or contact with the wheelchair retailer, the Willemsens, or any other Oregon individual or entity; (3) that CTE directed, promoted the sale, distribution or support of its products in Oregon; (4) that CTE conducts any business in the State of Oregon; or (5) that CTE maintains any offices, conducts any advertising, has any registered agents or other contacts with the State of Oregon. 7. CTE moved to dismiss plaintiffs' complaint against it for lack of

personal jurisdiction, pursuant to ORCP 21A(2) (ER-18 to ER-30). In support of that motion, CTE provided a Declaration of Peter Chen (ER-33 to ER-35) to establish the following facts: CTE is a Taiwanese corporation that has no physical or business presence in the state of Oregon (ER-34, 3, 7). CTE is not licensed or registered to conduct business in Oregon (ER-34, 10). It does not advertise or solicit business in Oregon (ER-34, ~ 11), and it does not have contracts with or sell any of its products directly to any Oregon-based vendors, retailers, distributors or individual consumers (ER-34, 9). CTE did not have any contact with the decedent or United Seating and Mobility, the alleged seller of the wheelchair, with

3 respect to the wheelchair itself, or any of its parts, components, or accessories (ER34, 113). CTE did not design, control, or have ariy involvement in the system of distribution that ultimately carried the subject battery charger into the state of Oregon (ER-34, 14). In short, the Chen Declaration establishes that CTE did nothing to purposefully direct the flow of its products to the State of Oregon and CTE had no other connection with this state. 8. Plaintiffs opposed the motion to dismiss. In response to the motion, .

Plaintiffs filed the Romano Declaration (Sealed ER-15 to Sealed ER-19) which showed that CTE did nothing more than deliver battery chargers to Invacare, a purchaser in Ohio (Sealed ER-15, 3; Sealed ER-16, 6). In the two-year period between 2006-2007, Invacare installed a small number of CTE battery chargers that cost a relatively small amount (Sealed ER-17, 10) and then Invacare sold a small number of these power wheelchairs in Oregon (Sealed ER-8, 8). 9. After oral argument (ER-15 8 to ER-162; ER-196 to ER-202), the

Circuit Court denied CTE's Motion to Dismiss, based on "the State's interest in protecting citizens from personal injury" (ER 201). 10. Motion: NOW THEREFORE IT IS HEREBY ORDERED that the CTE defendants' motion to dismiss for lack of personal jurisdiction is denied. On January 24, 2011, the Circuit Court entered its Order denying the

4 (ER 204). A copy of the Order is attached hereto as an exhibit and by this reference incorporated herein. 11. CTE timely filed this Petition promptly, within 22 days of the denial

of its Motion to Dismiss. See State ex rel Redden v. Van Hoomisen, 281 Or 647, 576 P2d 355, rev den, 282 Or 415 (1978) (Laches governs the timeliness of a petition for a writ of mandamus). 12. Article VII (Amended), Section 2, of the Oregon Constitution affords

jurisdiction over this petition for an alternative writ of mandamus. Because CTE challenges a legal ruling of a judge of the circuit court for Multnomah County in this particular case, original jurisdiction lies with this Court. ORS 34.250(1). 13. The Circuit Court denied CTE's Motion to Dismiss for lack of

subject matter jurisdiction (ER-202 to ER-203), and the applicable local rules prohibit a motion for reconsideration. Multnomah County Local Rule 5.045(1). CTE did not make further application to the circuit court because that is the court that issued the Order that is being challenged. 14. CTE does not have a plain, speedy, and adequate remedy in the

ordinary course of the law. See ORS 34.110. Interlocutory appeal is not available. Direct appeal is not an adequate remedy, because CTE would be required to incur the burden of defending itself in a distant, remote, and also foreign forum. This Court has long recognized that a mandamus proceeding is

5 appropriate when the relator asserts that a court is improperly asserting jurisdiction. State ex rel Knapp v. Sloper, 256 Or 299, 301-302, 473 P2d 140 (1970), State ex rel Handly v. Hieber, 256 Or 93, 471 P2d 790 (1970), cited in
State ex rel Automotive Emporium, Inc. v: Murchison, 289 Or 265, 611 P2d 1169

(1980); see also State ex rel Pardee v. LaTourette, 168 Or 584, 587, 125 P2d 750 (1942), and cases cited therein. 15. On February 8, 2011, CTE moved the Circuit Court to stay discovery

or further proceedings against CTE in the proceedings from which this mandamus proceeding arises, pending final resolution of the mandamus petition. Hearing on the motion for a stay is set for January 18, 2011. Should the Circuit Court deny CTE's motion for a stay, CTE will file a motion with this Court to stay discovery of further proceedings against CTE in the Circuit Court. 16. Pursuant to ORS 34.210, CTE also requests that, in the event it

prevails, it be awarded its reasonable attorney fees, cost and disbursements incurred herein.

WHEREFORE, CTE petitions this Court to issue an alternative writ of mandamus, directed to the Hon. Richard C. Baldwin, directing him to vacate the

///

Order entered on January 24, 2011 ; denying CTE's Motion to Dismiss and to grant

CTE's motion. DATED this day of February, 2011. Respectfully submitted, MARTIN BISCHOFF TEMPLETON LANGSLET & HOFFMAN LLP
. ~`

B}r

Mary-Ann S. Rayburn, OSB No. 803680 Jonathan M. Hoffman, OSB No. 754180 Joan L. Volpert, OSB No. 803942 Attorneys for Defendants-Relators

File Nn.
,

FoiderfLiLL

1 2 3 4 5
6 JEFFREY WILLEMSEN, as Personal 7 Representative of the Estate of KARLENE J. WILLEMSEN and JAMES WILLEMSEN, g Plaintiffs, 9 V.

copy
IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH

Case No. 0902-01653 ORDER

10 INVACARE CORPORATION, a foreign 11 corporation; UNITED SEATING & MOBILITY, LLC., a foreign limited liability 12 company; CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; 13 CTE TECH CORP., a foreign corporation; MOTION CONCEPTS, INC., a foreign 14 corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; 15 PASS & SEYMOUR, INC., a foreign corporation; SIEMENS CORPORATION, a 16 foreign corporation; SIEMENS INDUSTRY, INC, f/k/as Siemens Energy and Automation, 17 Inc., a foreign corporation; SUMMERS GROUP, INC., dba REXEL, a foreign 18 corporation; and GAW ELECTRIC, INC. an Oregon Corporation, Defendants. 19 20 21 22 23 24 25 26 Page 1- ORDER
9owerso: Law Fum, p.c. 5285 Meadows Roa4 Surte 320 [.akc Oswego, OR 97035 . (503) 452-5858

This matter came before the court on the motion filed by CTE Tech Corp. and China Terminal & Electric Corp.'s Motion to Dismiss for Lack of Personal Jurisdiction. The court has read and considered the subxnissions of the parties including the declarations submitted by the parties and has heard argument of counsel. //

JAN 16 2019

2 3
4

NOW THEREFORE IT IS HEREBY ORDERED that the CTE defendants' motion to dismiss for lack of personal jurisdiction is denied.

5 6

Dated: January ~, 2011.

31 RICHARD. C.. BALDWITI

Honorable Richard C. Baldwin Circuit Court Judge

7
8 9

Submitted by: 10 BowE 11 12 13 14 15 Approved as to form: 16

MARTIIV BISCHOFF TEMPLETON LANGSLET & HOFFMAN LLP

w FIRM

c.

Dated: January ~, 2011.

Jeffrey x, OSB #81442 Trial Attomey for Plaintiffs

Dated: January_,~, 2011. .

17
18

19 20 21 22 23 24 25 26

Mary- 4&ne Rayburn, O #803680 Of A orneys for CTE Tech Corp. and China Terminal & Electric Corp.
,

Page 2 - ORDER
Bowcfsox Lew F'un~ p.c 5285 Meadows Road, Soice 320 lakc Oswego, OR 97035 .(503) 432-5838

CERTIFICATE OF MAILING/SERVICE 1 certify that I filed the original and eight (8) copies of the PETITION FOR WRIT OF ALTERNATIVE MANDAMUS by hand delivering to: State Court Administrator Supreme Court Building 1163 State Street Salem, OR 97301-2563 on February

15, 2011.

I further certify that I served one copy of said PETITION FOR WRIT OF ALTERNATIVE MANDAMUS by mailing, via first class mail, postage prepaid, to: Jeffrey A. Bowersox The Bowersox Law Firm PC 5385 Meadows Road, Ste. 320 Lake Oswego, OR 97035 Attorney for Plaintiffs-Adverse Parties Richard C. Pearce Attorney at Law Suite 755 921 S.W. Washington St. Portland, OR .97205 Co-Counsel for Plaintiffs-Adverse Parties Walter H. Sweek Cosgrave Vergeer Kester LLP 805 S.W. Broadway, 8th Floor Portland, OR 97205 Attorney for Invacare Corporation, Motion Concepts, Inc. and Perpetual Motion Enterprises

Jay W. Beattie Lindsay Hart Neil & Weigler LLP 1300 S.W. Fifth Ave., Ste. 3400 Portland, OR 97201 Attorney for United Seating & Mobility, LLC Ronald J. Clark Bullivant Houser Bailey PC 888 S.W. Fifth Ave., Ste. 300 Portland, OR 97204 Attorney for Pass & Seymour, Inc. Heather C. Beasley Davis Rothwell Earle & Xochihua PC 111 S.W. Fifth Ave., Ste. 2700 Portland, OR 97204 Attorney for GAW Electric, Inc. Joshua P. Stump Harrang Long Gary Rudnick, PC 1001 S.W. Fifth Ave., 16th Floor Portland, OR- 97204

2 Attorney for Siemens Industry, Inc.

Christine F. Miller Admitted Pro Hac Vice Julia T. Farrell Admitted Pro Hac Vice J. Claire Todorovich Admitted Pro Hac Vice 190 Carondelet Plaza, Ste. 600 St. Louis, MO 63105

Ryan McLellan Smith Freed & Eberhard, PC 111 S.W. Fifth Ave., 43rd Floor Portland, OR 97204 Attorney for Summers Group, Inc. The Honorable R.ichard C. Baldwin Multnomah County Circuit Court Multnomah County Courthouse 1021 S.W. Fourth Ave. Portland, OR 97204 Judge

DATED this

15 day of February, 2011.

MARTIN BISCHOFF TEMPLETON LANGSLET & HOFFMAN LLP By Mary-Ann S. Rayburn, OSB No. 803680 Jonathan M. Hoffman, OSB No. 754180 Joan L. Volpert, OSB No. 803942 Attorneys for Defendants-Relators

0 I ~ ~ I ' I I I I 0

FI L E D
APPELIATE COURT ADMINISTRATOR

IN THE SUPREME COURT OF THE STATE OF OREGON JEFFREY WILLEMSEN, as Personal Representative of the Estate of KARLENE J. WILLEMSEN and JAMES WILLEMSEN, Plaintiffs - Adverse Parties,
V.

FEB 15 2011

_ SUPREME COURT
o

COURT OF APPEALS

Supreme Court No.

SC S

Multnomah County Circuit Court No. 0902-01653

INVACARE CORPORATION, a foreign corporation; UNITED SEATING & MOBILITY, LLC, a foreign limited liability company; CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; CTE TECH CORP., a foreign corporation; MOTION CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS & SEYMOUR, INC., a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, INC., flk/a Siemens Energy and Automation, Inc., a foreign corporation; SUMMERS GROUP, INC., dba REXEL, a foreign corporation; and GAW ELECTRIC, INC., an Oregon corporation, Defendants, and

MEMORANDUM IN SUPPORT OF PETITION FOR ALTERNATIVE WRIT OF MANDAMUS

CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; and CTE TECH CORP., a foreign corporation, Defendants-Relators . February 2011 (Continued on next page)

Nt.

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Mary-Anne Raybum, OSB No. 803680 Jonathan M. Hoffman, OSB No. 754180 Joan L. Volpert, OSB No. 803942 Martin Bischoff Templeton Langslet & Hoffman LLP 888 S.W. Fifth Ave., Ste. 900 Portland, OR 97204 Telephone: 503-224-3113 E-Mail: mraybum@martinbischoff.com i hoffmankmartinbischoff. com i vol p ert (d), martinb i s cho ff. c om Attorneys for Defendants-Relators

Jeffrey A. Bowersox, OSB No. 814422 The Bowersox Law Firm PC 5385 Meadows Road, Ste. 320 Lake Oswego, OR 97035 Telephone: 503-452-5858 E-Mail: jeffrey@blfpc.com Attorney for Plaintiffs-Adverse Parties

Richard C. Pearce, OSB No. 762842 Attorney at Law 921 S.W. Washington St., Ste. 755 Portland, OR 97205 Telephone: 503-223-2966 E-Mail: rcpghevanet.com Co-Counsel for Plaintiffs-Adverse Parties
Walter H. Sweek, OSB No. 620920 Cosgrave Vergeer Kester LLP 805 S.W. Broadway, 8th Floor Portland, OR 97205 Telephone: 503-323-9000 E-Mail: wsweekgcvk-law.com Attorney for Invacare Corporation, Motion Concepts, Inc. and Perpetual Motion Enterprises

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(Continued on next page)

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Jay W. Beattie, OSB No. 871631 Lindsay,Hart Neil & Weigler LLP 1300 S.W. Fifth Ave., Ste. 3400 Portland, OR 97201 Telephone: 503 -226-7677 E-Mail: Lattiea,lindsgyhart.com Attorney for United Seating & Mobility, LLC Ronald J. Clark, OSB No. 880328 Bullivant Houser Bailey PC 888 S.W. Fifth Ave., Ste. 300 Portland, OR 97204 Telephone: 503 -499-4413 E-Mail: ron.clark@bullivant.com Attorney for Pass & Seymour, Inc. Heather C. Beasley, OSB No. 965443 Davis Rothwell Earle & Xochihua PC 111 S.W. Fifth Ave., Ste. 2700 Portland, OR 97204 Telephone: 503-222-4422 E-Mail : hbeasleyAdavisrothwell.com Attorney for GAWElectric, Inc. Joshua P. Stump, OSB No. 974075 Harrang Long Gary Rudnick, PC 1001 S.W. Fifth Ave., 16th Floor Portland, OR 97204 Telephone: 503-242-0000 E-Mail: joshua.stumpgharran .com Attorney for Siemens Industry, Inc.

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(Continued on next page)

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Christine F. Miller, Admitted Pro Hac Vice Julia T. Farrell, Admitted Pro Hac Vice J. Claire Todorovich, Admitted Pro Hac Vice 190 Carondelet Plaza, Ste. 600 St. Louis, MO 63105 Telephone: E-Mail: Attorney for Siemens Industry Inc. Ryan McLellan, OSB No. 023908 Smith Freed & Eberhard, PC 111 S.W. Fifth Ave., 43rd Floor Portland, OR 97204 Telephone : 5 03 -22 7-2424 E-Mail: rmclellangsmithfreed.com Attorney for Summers Group, Inc.

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TABLE OF CONTENTS I. INTRODUCTION ............................................................................................ 1

II. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND ............. 2 A. Statement of Facts ..................................................................................... 2 B. Procedural Background ........................................... ........ 4

III. DISCUSSION ................................................................................................... 6 A. Plaintiffs Did Not Establish "General Jurisdiction" Under ORCP4A(4) . ............................................................................................. 8 B. ORCP 4D Does Not Afford a Basis of Jurisdiction for a Foreign Act CausingLocal Injury .................................................................................. 9 (1) Plaintiffs failed to satisfy ORCP 4D(1): There is no evidence that CTE conducted any solicitation or service activities in Oregon....... 10 (2) Plaintiffs failed to satisfy ORCP 4D(2): There is no evidence that CTE's products were used or consumed within Oregon in the ordinary course of trade . ................................................................... 10 C. Personal Jurisdiction Over CTE is Limited by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. .......... 12
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(1) The Due Process Clause limits the extension of jurisdiction over non-resident defendants ..................................................................:. 12 (2) Some or all of this Court's 1982 decision in State ex rel Hydraulic Servocontrols has been abrogated by more recent decisions of the U.S. Supreme Court . .............................................................. 14 (3) The Circuit Court failed to apply the appropriate test for "Purposeful Availment" in this case . ............................................... 21 (4) The Court should be especially cautious in avoiding an unwarranted extraterritorial exercise of jurisdiction over a foreigndefendant . ............................................................................. 26

11

(5) If there is any doubt about the effect of Asahi on existing case law, the Court should defer ruling on the mandamus pending an imminent decision by the U.S. Supreme Court in another pendingcase . ....................................:............................................... 27 IV. CONCLUSION ............................................................................................... 28 APPENDIX..................................................................................................... App-1

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~ I
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CASES

TABLE OF AUTHORITIES
Page(s)
Adidas America, Inc. v. Topline Corp., 2009 WL 1270256 (D Or May 5, 2009) .......................................................... ..............................

...

21

Asahi Metal Indus. Co. v. Super. Ct., 480 US 102 (1987) ........................:............................................................. passim Bancroft & Masters, Inc. v. Augusta Nat., Inc., 223 F3d 1082 (9`h Cir. 2000) ............................................................................ 8,9 Bean Dredging Corp. v. Dredge Technology Corp., 744 F2d 1081 (5 t" Cir 1984) ............................................................................... 18 Brown v. Meter, 681 SE2d 382 (NC App 2009), cert granted sub nom Goodyear Luxembourg Tires, S.A. v. Brown, US , 131 S Ct 63, 177 LEd2d
1152 (2010) ........................................................................................................ 28

Burger King Corp. v. Rudzewicz,

471 US 462 (1985) ................................................................................. 20, 22, 23

Burnham v. Super. Ct. of Cal., Co. of Marin,

495 US 604 (1990) ............................................................................................. 14

Calder v. Jones,
465 US 783 (1984) ................................................................................. 15, 16, 25 ~

Doe v. American Nat'l Red Cross, 112 F3d 1048 (9`h Cir 1997) ............................................................................... 21 Espinoza v. Blitz,
2004 WL 2165358(D Or Se p t. 24 ~ 2004 ) .......................................................... 21

Faber v. Bombardier, Inc., U.S. District of Oregon Case No. 04-CV 645
(2005) ................................................................................................................. 21

Hanson v. Denckla,
357 US 235 (1958) . ................................................................................:........... 14

I
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iv

Hedrick v. Daiko Shoji Co. Ltd., Osaka, 715 F2d 1355 (9`h Cir 1983) ......................................................................... 19,21 Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 US 408 (1984) ............................................................................................... 8

Holland America Line Inc. v. Wartsila North America Inc. 485 F3 d 450 (9`h Cir 2007) ..................................................... ................. ........... 21
, , ,

International Shoe Co. v. Washington, 326 US 310 (1945) ....................................................................................... 13,14 Keeton v. Hustler Magazine, Inc., 465 US 770 (1984) .................................................................................15, 22, 25 McGee v. International Life Ins. Co., 355 US 220 (1957) ............................................................................................ 22 Nicastro v. Mclntyre Machinery America, Ltd., 201 NJ 48, 987 A2d 575 (2010), cert. granted, US , 131 S Ct 62, 177 LEd2d 1151 (2010) ............................................................................... 27,28

Omeluk v. Langsten Slip and Batbyggeri A/S, 52 F3d 267 (9`h Cir 1995) .............................:..................................................... 21 Page v. Palmateer, 336 Or 379, 84 P3d 133, cert den by Page v. Belleque, 543 US 866 (2004) ................................................................................................................. 12

Ruckstuhl v. Owens Corning Fiberglas Corp : , 731 So2d 881 (La 1999).

17,18

State ex rel Automotive Emporium, Inc. v. Murchison, 289 Or 265, 611 P2d 1169, reh den, 289 Or 673, 616 P2d 496 (1980) ............... 5 State ex rel Circus Circus Reno, Inc. v. Pope, 317 Or 151, 854 P2d 461 (1993) .......................................................... 6, 7, 11, 13 State ex rel Handly v. Hieber, 256 Or 93, 471 P2d 790 (1970) ............................................................................ 5 ~
~ I. -

State ex rel Hydraulic Servocontrols Corp. v. Dale, 294 Or 381, 657 P2d 211 ...........................................::........ .......................passim "

I
~ ~ ~ State ex rel Jones v. Crookham,
296 Or 735; 681 P2d 103 (1984) ...:.................................................................... 13

State ex rel Knapp v. Sloper,

256 Or 299, 473 P2d 140 (1970) .......................................................................... 5

State ex rel Pardee v. Latourette

168 Or 584, 125 P2d 750 (1942) .......................................................................... 5

State ex rel Redden v. Van H000misen, 281 Or 647, 576 P2d 355, reh den, 282 Or 415, 579 P2d 222 (1978) ................. 4 State v. Moyle,
~ 299 Or 691, 705 P2d 740 (1985) ........................................................................ 21

State v. Reyes-Camarena,
330 Or 431, 7 P3d 522 (2000) ............................................................................ 21

Sunset Fuel v. Zanjani, 1997 WL 118440 (D Or February 26, 1997) ..................................................... 21 1 Sutherland v. Brennan, 321 Or 520, 901 P2d 240 (1995) ......................................................................... 7 United States v. First Nat'l City Bank, 379 US 378 (1965) .............................................................................................27 World-Wide Volkswagen Corp. v. Woodson, 444 US 286 (1980) ...................................................................................... passim
STATUTES AND RULES

Local Rule 5.045(1) ................................................................................................... 5

ORCP 4 ................... ................................................................. ............................. 7, 8

ORCP 4A(1) ........................................................................................................... 10

~ ORCP 4A(4) .......................................................................................................... 8,9

ORCP 4D ................................................................................................................... 9 ORCP 4D(1) ........................................................................................................ 9, 10

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ORCP 41)(2) ............................................................ :......................................... 10,12

ORCP4L ................................................................................................::..... 8, 12, 13 ORCP 21 A .......................................................................................... ............... ........ 7 ORCP21 A(2) .............................:....................................................... ~ .......... 3

ORS 34.110 ............................................................. .................................... .............. 5 ORS34.250(1) ........................................................................................................... 5

CONSTITUTIONAL PROVISIONS

Oregon Constitution, Article VII (Amended), Section 2 .......................................... 4 United States Constitution, Article 1, Section 8, Clause 3 ...................................... 26 United States Constitution, Fourteenth Amendment ........................................ 12,13 United States Constitution, Fourteenth Amendment, Section 1 ............................. 13
~ OTHER AUTHORITIES

Born, Reflections on Judicial Jurisdiction in International Cases, 17 Ga J Int'1 & Comp L 1, at 29-31, n.123 (1987) .................................................. ................

.........

26

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I. INTRODUCTION
This Petition presents the question whether the Circuit Court erred as a matter of law in denying the Motion to Dismiss for lack of personal jurisdiction filed by defendants CTE TECH CORP. and CHINA TERMINAL & ELECTRIC CORP. (hereinafter ""),a Taiwanese corP oration that manufactures batteries and CTE 1 battery chargers in Taiwan. CTE neither conducts nor solicits any business in the state of Oregon. Nevertheless, the Circuit Court denied CTE's Motion to Dismiss for lack of personal jurisdiction because a product containing a battery charger manufactured by CTE was sold in Oregon arid plaintiff sustained a fatal injury, allegedly due to the battery charger. The Circuit Court found "the state's interest in protecting its citizens from personal injury" (ER-201) 2 was sufficient to justify a finding of personal jurisdiction. CTE petitions this Court to issue an alternative writ of mandamus directing the Circuit Court either to dismiss the complaint

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against it, or to show cause why the complaint against CTE should not be

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dismissed for lack of personal jurisdiction.

CHINA TERIVIINAL & ELECTRIC CORP. is the former business name of CTE TECH CORP. ' For ease of reference, the portions of the record filed herewith are designated "ER."
1

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1 II. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND A. Statement of Facts Plaintiffs Jeffrey and James Willemsen filed this action for wrongful death and property damages arising from a February 1, 2008, fire in Portland, Oregon (ER-1 to ER-17). Plaintiffs allege that Karlene J. Willemsen died as a result of the fire, which started in the bedroom of her home (ER-11). The eleven defendants were allegedly involved in the design, manufacture, marketing, sale, or service of the motorized wheelchair, the motorized hospital bed, and various electrical components and accessories located in the bedroom where the fire allegedly originated (ER-1 to ER-10). The complaint alleges that CTE is liable for manufacturing the battery and/or battery charger that was a component of decedent's motorized wheelchair (ER-2). Plaintiffs did not allege: (1) that CTE was aware that its products were being sold in Oregon; (2) that CTE had any presence in or contact with the wheelchair retailer, the Willemsens, or any other Oregon individual or entity; (3) that CTE directed, promoted the sale, distribution or support of its products in Oregon; (4) that CTE conducts any business in the state of Oregon; or (5) that CTE maintains any offices, conducts any advertising, or has any registered agents or other contacts with the state of Oregon.

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CTE moved to dismiss Plaintiffs' compl'aint against it for lack of personal jurisdiction, pursuant to ORCP 21A(2) (ER-18 to ER-30). In support of that motion, CTE provided the Declaration of Peter Chen (ER-33 to ER-35) to establish the following facts. CTE is a Taiwanese corporation that has no physical or business presence in the state of Oregon (ER-34, 3, 7). CTE is not licensed or registered to conduct business in Oregon (ER-34, 10). It does not advertise or solicit business in Oregon (ER-34, T 11), and it does not have contracts with or sell any of its products directly to any Oregon-based vendors, retailers, distributors or individual consumers (ER-34, 9). CTE did not have any contact with the decedent or with United Seating and Mobility, the alleged seller of the wheelchair, with respect to the wheelchair itself, or any of its parts, components, or accessories (ER-34, 13). CTE did not design, control, or have any involvement in the system of distribution that ultimately carried the subject battery charger into the state of Oregon (ER-34, 14). In short, the Chen Declaration establishes that CTE did nothing to purposefully direct the flow of its products to the State of Oregon and CTE had no other connection with this state. In response to the motion, Plaintiffs filed the Romano declaration (Sealed ER15 to Sealed ER-19) 3, which showed that CTE did nothing more than deliver

I m

Plaintiffs filed the Romano Declaration in the Circuit Court under seal. CTE has filed that declaration under seal in this Court as a separate excerpt of record, referred to as "Sealed ER" herein. The general references to the content of the
3

battery chargers to Invacare, a purchaser in Ohio (Sealed ER-15, 3; Sealed ER16, 6). Between 2006=2007, Invacare installed a small number of CTE battery chargers that cost a relatively small amount (Sealed ER-17, 10) and then Invacare sold a small number of these power wheelchairs in Oregon (Sealed ER-8, ~ 8). B. Procedural Background

After oral argument (ER-158 to ER-162; ER-196 to ER-202), the Circuit

~ Court denied CTE's Motion to Dismiss, based on "the State's interest in protecting citizens from personal injury" (ER-201). On January 24, 2011, the Circuit Court entered its Order denying the Motion: NOW THEREFORE IT IS HEREBY ORDERED that the CTE defendants' motion to dismiss for lack of personal jurisdiction is denied. (ER-204). CTE's prompt filing of this Petition was timely. See State ex rel. Redden v. Van Hoomisen, 281 Or 647, 576 P2d 355, reh den, 282 Or 415, 579 P2d 222 (1978) (laches governs the timeliness of a petition for a writ of mandamus).

Article VII (Amended), Section 2, of the Oregon Constitution affords jurisdiction over this petition for an alternative writ of mandamus. Because CTE

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Sealed ER herein are followed, where applicable, by references to the paragraphs of the Sealed ER where more specific information is available for the Court's revi ew.

1
challenges a legal ruling of a judge of the Circuit Court for Multnomah County in this particular case, original jurisdiction lies with this Court. ORS 34.250(1). The Circuit Court denied CTE's Motion to Dismiss for lack of subject matter jurisdiction (ER-202 to ER-203) and the applicable local rules prohibit a motion ~ for reconsideration. Multnomah Coun Local Rule 5.045 (1. ) tY CTE does not have a plain, speedy, and adequate remedy in the ordinary course of the law. See ORS 34.110. Interlocutory appeal is not available. Direct appeal is not an adequate remedy, because CTE would be required to incur the burden of defending itself in a distant, remote, and also foreign forum. This Court has lon reco~ that a mandamus P roceeding a ro riate when the relator is PP P g ized ~ asserts that a court is improperly asserting jurisdiction. State ex rel. Knapp v. Sloper, 256 Or 299, 301-302, 473 P2d 140 (1970), State ex rel. Handly v. Hielier,
~ 256 Or 93, 471 P2d 790 (1970), cited in State ex rel. Automotive Emporium, Inc. v.

Murchison, 289 Or 265, 269 n 5, 611 P2d 1169, reh den, 289 Or 673, 616 P2d 496
(1980); see also State ex rel. Pardee v. Latourette, 168 .Or 584, 587, 125 P2d 750

(1942), and cases cited therein. On February 8, 2011, CTE moved the Circuit Court to stay discovery or further proceedings against CTE in the proceedings from which this mandamus proceeding arises, pending final resolution of this mandamus petition. Hearing on th m tion for sta i et fo Fe bruary 18 20. S ould the Circuit Court deny 11 h eo a y s s r
,

I
further proceedings against CTE in Circuit Court. III. DISCUSSION Mandamus is appropriate and necessary here. This case presents a recurring legal issue, the exercise of personal jurisdiction over a non-resident defendant.

CTE's motion for a stay, CTE will file a motion with this Court to stay discovery or

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The Circuit Court judge made a pre-trial error of law correctable by mandamus in denying CTE's Motion to Dismiss for lack of personal jurisdiction. "The burden is on the plaintiff below to establish facts sufficient to support the exercise of jurisdiction." State ex rel. Circus Circus Reno, Inc. v. Pope, 317 Or 151, 153, 854 P2d 461 (1993). Here, Plaintiffs failed to establish facts to suPP ort general jurisdiction over CTE. Plaintiffs offered no evidence: (1) that CTE was

In

aware that its products were being sold in Oregon; (2) that CTE had any presence in or contact with the wheelchair retailer, the Willemsens, or any other Oregon individual or entity; (3) that CTE directed, promoted the sale, distribution or support of its products in Oregon; (4) that CTE conducts any business in the state of Oregon; or (5) that CTE maintains any offices, conducts any advertising, has any registered agents or other contacts with the State of Oregon. Instead, Plaintiffs showed nothing more than thaf CTE sold batteries and battery chargers to a customer in Ohio, and that the customer incorporated CTE's components into wheelchairs, some of whi ch- -including the one owned by

I I

0 I ~ ~ I I I ~ I i ~
I

decedent -- were sold in Oregon (Sealed ER-15, 3; Sealed ER-16, 14). More specifically, the facts presented by Plaintiffs proved: (1) CTE maintains product liability insurance in the United States; (2) CTE complied with federal product reporting and registration requirements; (3) CTE sold products to a company in Ohio, co-defendant Invacare; (4) Invacare sold a small number of wheelchairs in Oregon in 2006-2007 which contained battery chargers manufactured by CTE; and (5) Invacare's total cost for the small number of CTE battery chargers was relatively small (See Sealed ER-16, 4, 7-9; Sealed ER-17, 10). While Plaintiffs' Third Amended Complaint further alleges (1) that CTE was aware that its products were sold and distributed by Invacare throughout the United States (ER-2 to ER-3, 4), and (2) that CTE sold its products with the intention of deriving an economic benefit from Invacare's national market (Id.), in responding to the Motion to Dismiss, Plaintiffs offered no evidence to support either allegation. 4 The trial court did not identify the provision of ORCP 4 upon which it relied to support its finding of personal jurisdiction. The discussion that follows shows

I I I

This Court has not decided whether broad allegations presented in the complaint, but unsupported by evidence in the record, are sufficient to deny a motion to dismiss for lack of personal jurisdiction (see Sutherland v. Brennan, 321 Or 520, 901 P2d 240 (1995)). While CTE agrees with the defendant's position in Sutherland, based on the plain language of ORCP 21 A, CTE submits that the evidence in this case, as in Sutherland, is legally insufficient even if the unsupported facts alleged in the complaint are considered.
4

I
~ that neither ORCP 4, nor the Due Process Clause (which, based on ORCP 4L, is tantamount to the same thing), supports a finding of jurisdiction in this case. A. Plaintiffs Did Not Establish "General Jurisdiction" Under ORCP 4A(4) . ORCP 4A(4) provides that a non-resident defendant is subject to "general" personal jurisdiction if the defendant "[i]s engaged in substantial and not isolated activities within the state, whether such activities are wholly interstate, intrastate, or otherwise[.]" General jurisdiction exists when a cause of action is unrelated to the defendant's contacts with the forum state, but the defendant has engaged in such continuous and systematic activities with the forum that personal jurisdiction is warranted. See, Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 US 408, 414 (1984). Relevant factors include whether the defendant "makes sales, solicits or engages in business in the [forum] state, serves the state's markets, designates an agent for service of process, holds a license, or is incorporated there [ in th fo m ate]. " Bancroft & Maste r Inc. v. Augusta Nat., Inc., 223 F3d e ru s t s,
1082, 1086 (9'`' Cir. 2000).

Plaintiffs did not show that CTE has any contacts with the State of Oregon, let ~ alone contacts that could be characterized as continuous, systematic, and substantial. Plaintiffs did not establish any of the above-listed jurisdictional factors. CTE has no physical or business presence in Oregon -- no offices, manufacturing plants, facilities, or employees in Oregon (ER-35, $ 4, 7).

11

I I I I ~ I I I I I ~ I I

Moreover, CTE is not incorporated or licensed to conduct business in Oregon (Id. at 10) and has never solicited or transacted any business in Oregon (Id. at 9). CTE's only purported connection to Oregon is that a small portion of its foreignbuilt components found its way into Oregon after being sold to a customer in Ohio. There is no showing that CTE sold, directed, encouraged, promoted, or even knew of, the distribution of its products in the state of Oregon. This tenuous connection is insufficient to establish general jurisdiction in Oregon over CTE under ORCP 4A(4). B. ORCP 4D Does Not Afford a Basis of Jurisdiction for a Foreign Act Causing Local Iniury . ORCP 4D governs jurisdiction for causes of action that arise out of foreign acts or onussions. The rule provides for personal jurisdiction: In any action claiming injury to person or property within this state arising out of an act or omission outside this state by the defendant, provided that in addition that at the time of the injury, either: D(1) Solicitation or service activities were carried on within this state by or on behalf of the defendant; or D(2) Products, materials, or things distributed, process, serviced, or manufactured by the defendant were used or consumed within this state in the ordinary course of trade. Plaintiffs presented no evidence to satisfy ORCP 41)(1) or 41)(2). They did not establish that CTE intentionally solicited or engaged in business activities

10

expressly aiined at the state of Oregon or that CTE's products were regularly used by Oregon consumers in the ordinary course of trade. (1) Plaintiffs Failed to Satisfy ORCP 4D(1): There is No Evidence

That CTE Conducted Any Solicitation or Service Activities in Or egon .

~ ' ~ As explained above, CTE does not transact business in Oregon (ER-34, 9). The company has never had any distributorship, import/export, or other sales agreement with any Oregon entities or individual consumers relating to its products (Id.). CTE also does not direct any advertising material to Oregon and has never
~

sent any sales representatives to Oregon (ER-34, 11). As such, there is no factual ~ ~ ~ basis for subjecting CTE to personal jurisdiction for "solicitation or service activities" under ORCP 4A(1). (2) Plaintiffs Failed to Satisfy ORCP 4D(2): There is No Evidence

That CTE's Products Were Used or Consumed Within Oregon in the Ordinary Course of Trade .
~ ~ Pl nt iffs o s t hth t Ca s products are used or consumed by Oregon a i fa ed il ow E T' consumers in the ordinary course of trade. ORCP 4D(2) on its face does not subject a manufacturer to personal jurisdiction any time its products find their way to Oregon. To construe the rule to authorize jurisdiction under such circumstances would run directly afoul of World-Wide Yolkswagen Corp. v. Woodson, 444 US 286, 299 (1980), which held that the mere possibility of "financial benefits accruing to the defendant from a collateral relation to the forum State" was

I
E l
l

11

insufficient to support jurisdiction in the absence of a"constitutionally cognizable ~ contact." Id. at 299, quoted in State ex rel. Circus Circus Reno, Inc. v. Pope, 317 Or at 158. Although there is evidence that Invacare sold wheelchairs in Oregon containing battery chargers manufactured by CTE during 2006-2007, Plaintiffs offered no evidence that this was "in the ordinary course of trade" of CTE, nor indeed what constitutes the "ordinary course of trade" within that industry. More importantly, Plaintiffs offered no evidence that CTE--as distinguished from
'

Invacare--played any role in promoting, selling, distributing, advertising, servicing, ~ or directing business to or within Oregon. Therefore, whatever products ultimately found their way into Oregon as a result of the efforts of Invacare, Plaintiffs failed to - adduce any evidence that the presence of CTE products in this state was caused ~ by any purposeful action of CTE, in the ordinary course of its trade or otherwise, directed to Oregon. Rather, the evidence indicates that this is an atypical case in ~ which CTE sold a component to an out-of-state wheelchair manufacturer who, in turn, incorporated the component into its wheelchairs, a small percentage of which were sold in Oregon. CTE does not sell its products to Oregon consumers and does not have contracts with any Oregon vendors, retailers, or distributors (ER-34, ~~ 6, 9). In fact, CTE has no distributors in the United States (Id. at6 . This includes both
~ )

I I I ~ I I I I I I I I I

12

decedent and United Seating and Mobility, LLC, the alleged seller of the wheelchair (Id. at 13). Plaintiffs offered no evidence that CTE had any contract-or any other arrangement -- for sales, distribution, or service of CTE's products in this state. There was no evidence that CTE had any financial stake in Invacare's sales in Ore on. Plaintiffs cannot baseJ urisdiction on a com onent P rt that a g P indirectly made its way into Oregon through the independent actions of unrelated product manufacturers and retailers, especially where CTE did not direct or control, or even have knowledge of, any aspect of, or the extent of, an unrelated manufacturer's distribution system (Id. at 14). Therefore, jurisdiction is lacking under ORCP 41)(2). C. Personal Jurisdiction Over CTE is Limited By the Due Process Clause of the Fourteenth Amendment to the United States Constitution . (1) The Due Process Clause Limits the Extension of Jur.isdiction Over Non-Resident Defendants . ORCP 4L authorizes jurisdiction "in any action where prosecution of the action against a defendant in this state is not inconsistent with the Constitution of this state or the Constitution of the United States." The due process limitations on personal jurisdiction over foreign defendants are govemed by federal law. Accordingly, this Court is bound by the decisions of the U.S. Supreme Court. Page v. Palmateer, 336 Or 379, 386, 84 P3d 133, cert den by Page v. Belleque,

,a

13

543 US 866 (2004). In a leading decision on personal jurisdiction, this Court

I I t ' ~ ~ I

In determining whether a court may exercise jurisdiction over a defendant under ORCP 4L, this court is guided by decisions of the Supreme Court of the United States regarding the constitutionality of such exercise under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. See State ex rel Jones v. Crookham, 296 Or 735, 742, 681 P2d 103 (1984) (Linde, J., concurring) (because Oregon does not have a due process clause in its state constitution, ORCP 4 L means, in practice, that an Oregon court has jurisdiction to the limits of due process under the Fourteenth Amendment; those limits are "an issue of federal law to be decided pursuant to the controlling decisions of the United States Supreme Court").

State ex rel Circus Circus Reno, 317 Or at 156 (footnote omitted).

The Due Process Clause of the Fourteenth Amendment acts as a limitation upon the power of a court to exercise personal jurisdiction over a non-resident defendant, s requiring that a defendant have certain minimum contact with the forum state such that maintenance of the suit "does not offend 'traditional notions of fair play and substantial justice'." International Shoe Co. v. Washington, 326 US 310, 316 (1945) (citations omitted). The constitutional limitations upon personal jurisdiction also derive from the inherent limits of state authority. See,

5 Section 1 of the Fourteenth Amendment states, in pertinent part: "No State shall

make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law."

1 1
e.g., Hanson v. Denckla, 357 US 235, 251 (1958) (holding that the "requirements for personal jurisdiction over nonresidents ... are a consequence of territorial limitations on the power of the respective States"). More recently, the U.S. Supreme Court has strongly reaffirmed the

14

fundamental underl 'ngbasis for ersonal 'urisdiction which is a state's or nation's Y1 J ~ P sovereign power over its territory. Burnham v. Super. Ct. of Cal., Co. of Marin, ~ ~ 495 US 604 1 608-09, 618 (1990). For this reason, even when expanding the limits of personal jurisdiction to allow jurisdiction over non-resident defendants, the Due Process Clause has always required the existence of "'minimum contacts' between the defendant and the forum State." World-Wide Volkswa gen, 444 US at 291 (quoting Int'l Shoe, 326 US at 316). ~ (2) Some or All of This Court's 1982 Decision in State ex rel. Hydraulic Servocontrols has Been Abrogated by More Recent Decisions of the U.S. Suureme Court. In the present case, Plaintiffs relied primarily upon this Court's 1982 decision in State ex rel Hydraulic Servocontrols Corp. v. Dale, 294 Or 381, 657 P2d 211 (1982), which upheld personal jurisdiction over a New York component manufacturer who sold its product to an engine manufacturer, with knowledge it would be incorporated into the engine of a Cessna aircraft. Id. at 383. This was "with the expectation that its products ultimately will .come to rest in every state." Id. at 389. Specifically, the premise for upholding jurisdiction in State ex rel

I
~ ~

15

Hydraulic Servocontrols was "foreseeability of suit in the forum state." Id. at 397. The Court stated that "What is relevant for due process is the foreseeability of being haled into the forum state's courts, and it is `the defendant's conduct and connection with the forum state'.... that provides that expectation[.]" Id. at 397-398 ~. citation omitted However, decisions rendered by the U.S. Supreme Court since 1982 make clear that foreseeability cannot suffice to justify imposing jurisdiction over every product manufacturer whose product is incorporated as a component into another product and then distributed to the forum through channels beyond the control or ~ lrnowledge of the component manufacturer. In 1984, the Court upheld jurisdiction in two defamation cases against out-of~ state publishers based not on foreseeability, but rather on deliberately targeting the forum state. In Keeton v. Hustler Magazine, Inc., 465 US 770, 774 (1984), the Court upheld jurisdiction because the publisher's course of conduct in "circulating magazines throughout the state was purposefully directed" at the forum. In Calder v. Jones, 465 US 783 (1984), the Court had the opportunity to decide the case based on foreseeability because defendant argued that "The mere fact that they

I
~
~

[defendants] can `foresee' that the article will be circulated and have an effect in California is not sufficient for an assertion of jurisdiction." Id. at 789. Instead, the Court employed a more stringent rationale:

i~ ,~

1
~ [R]ather, their intentional, and allegedly tortious, actions were expressly aimed at California [the forum]. They [Petitioners South and Calder] wrote and edited an article that they knew would have a potentially devastating impact upon respondent, and they knew that the brunt of that injury would be felt by respondent in the State in which she lives and works aiid in which the magazine [the National Enquirer] has its largest circulation. Id. at 783-784. Three years later, in Asahi Metal Indus. Co. v. Super. Ct., 480 US 102, 115 (1987), the U.S. Supreme Court rejected the foreseeability rationale upon which this Court decided Hydraulic Servocontrols.
~

16

The foreseeability rationale in Hydraulic Servocontrols was based on language from World-Wide Volkswagen, which addressed the circumstances under which a manufacturer may subject itself to jurisdiction in a forum in which is does not directly conduct business: "When a corporation'purposefully avails itself of the privilege of conducting activities within the forum State,' (citation omitted) it has clear notice that it is subject to suit there,

*** ~ *** [I]f the sale of a product of a manufacturer or

distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others. The forum State does not exceed its powers under-the Due

I I I I I I I I I I I
'

17 Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State." 444 US at 297-98, 100 SCt at 567. State ex rel Hydraulic Servocontrols, 294 Or at 388. However, the quoted language from World-Wide Yolkswagen was dictum because that case presented a jurisdictional challenge by a regional distributor, not a manufacturer. See Ruckstuhl v. Owens Corning Fiberglas Corp., 731 So2d 881, 887, 889 (La 1999). Moreover, the U.S. Supreme Court's subsequent decisions leading up to and including Asahi compel the conclusion that the dictum upon which this Court relied in 1982 is not a correct statement of the law. The issue may appear somewhat clouded because there are two plurality opinions in Asahi, each of which is supported by four justices. However, even if those two opinions could lead to different outcomes in some cases, both of those opinions establish limitations upon the exterritorial reach of long-arm jurisdiction more stringent than what this Court authorized in Hydraulic Servocontrols, and both compel dismissal based on the record in the present case.

In order to understand why this is so, it is important to examine the facts, history and disposition of the Asahi case. For ten years, Asahi had done business with Cheng Shin, a tube manufacturer that made twenty percent of its United States sales in California. 702 P2d at 545. Between 1978 and 1982, Asahi sold

m
;

r.

a
~

18

1,350,000 valve assemblies to Cheng Shin. Id. The Supreme Court of California found that "[a]lthough Asahi did not design or control the system of distribution that carried its valve assemblies into California, Asahi was aware of the distribution system's operation, and it knew that it would benefit economically from the sale in California of products incorporating its components." 702 P2d at 550. It therefore held that, because the stream of commerce eventually brought some valves Asahi sold Cheng Shin into California, Asahi's awareness that its valves would be sold in California and the foreseeability that its valves would be sold in California was sufficient to permit California to exercise jurisdiction over Asahi consistent with the req uirements of the Due Process Clause. 702 P2d at 549-

M
I.

550 ("Given the substantial nature of Asahi's indirect business with California, and its expectation that its product would be sold in the state, Asahi 'should reasonably [have] anticipate[d] being haled into court [here].' World-Wide Yolkswagen, supra, 444 US at p. 297, 100 SCt at p. 567."). 702 P2d at 550. The California Supreme Court's decision was entirely consistent with those pre-Asahi cases (including State ex rel. Hydraulic Servocontrols) including those from intermediate courts that had held mere foreseeability or awareness to be a

~ constitutionally sufficient basis for personal jurisdiction if the defendant's product made its way into the forum State while still in the stream of commerce. See Bean Dredging Corp. v. Dredge Technology Corp., 744 F2d 1081 (5 th Cir 1984);

I 1~

I I I I I ' I t I I I
~

19

Hedrick v. Daiko Shoji Co. Ltd., Osaka, 715 F2d 1355 (9`h Cir 1983); Asahi, 480 US at 111-112. However, the United States Supreme Court reversed. Justice O'Connor, writing for a four-member plurality, took the view that the "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, 480 US at 112 (opinion of O'Connor, J.) (emphasis added). Therefore, "something more"-- some "[a]dditional conduct of the defendant," and in particular " an action of the

defendant purposefully directed toward the forum State " -- must be shown before
in personam jurisdiction may be exercised. Id. at 111-12 (emphasis in original). Without deciding what would be sufficient to permit jurisdiction under the Due Process Clause, Justice O'Connor's opinion offered the following observations: Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example, designing the product for the market in the forum State, advertising in the forum State, establishing channels for providmg 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. at 112. In another opinion, authored by Justice Brennan, a bloc of four other Justices

took the contrary view that the mere placement of a product into the stream of commerce could be enough to satisfy due process -- as long as the manufacturer

~~

~ ~

20

was aware that the "regular and anticipated flow" of the stream of commerce would carry the product into the forum state. Asahi, 480 US at 116-17 (Brennan,

e ~ , '
a ~ t 0 1 1
1 1 9
" ~

J.).6
The U.S. Supreme Court has unambiguously explained, however, that-in nature of commerce -- "the constitutional notwithstandin g the chang g touchstone" of whether personal jurisdiction comports with due process "remains whether the defendant purposefully established 'minimum contacts' in the forum
State." Burger King Corp. v. Rudzewicz, 471 US 462, 474 (1985); see Asahi, 480

US at 108-09. Indeed, both plurality opinions in Asahi make clear that delivering a product into the stream of commerce cannot serve as the basis for personal jurisdiction unless, by so doing, the defendant "purposefully avails itself' of the state market. See Asahi, 480 US at 110 (opinion of O'Connor, J.); Id. at 116-117 (opinion of Brennan, J.). Consequently, it is legally insufficient under either plurality opinion to show merely that products were placed into the stream of commerce of the United States and that it was "foreseeable" that some of the products might reach the forum state. Thus, in a case such as that presented here, in which the Plaintiffs have made no showing of any purposeful availment by CTE of the Oregon market, there is no basis to impose jurisdiction. Justice.Stevens wrote a separate concurrence suggesting that whether or not placement of a product into the stream of commerce satisfies the minimum contacts test turns on "the volume, the value, and the hazardous character" of the product. Id. at 122 (Stevens, J., concurring in part and concurring in the judgment).
6

21

Before Asahi, the Ninth Circuit, like this Court, had held jurisdiction was Fn proper under World-Wide Volkswagen's stream of commerce dictum. Hedrick v. Daiko Shoji Co., Ltd., Osaka, 715 F2d 1355 (9th Cir 1983). However, since Asahi, ~ both the Ninth Circuit and the United States District Court in Oregon have recognized that such an approach is no longer warranted. See e.g., Holland ~ America Line, Inc. v. Wartsila North America, Inc., 485 F3d 450, 459 (9 th Cir 2007); Doe v. American Nat'l Red Cross, 112 F3d 1048, 1051 (9`h Cir 1997); Omeluk v. Langsten Slip and Batbyggeri A/S, 52 F3d 267, 271 (9`h Cir 1995); Adidas America, Inc. v. Topline Corp., 2009 WL 1270256 (D Or May 5, 2009); ~ Esp inoza v. Blitz ~ 2004 WL 2165358( D Or Se t. 24~ 2004 ), Sunset Fuel v. P Zanjani, 1997 WL 118440 (D Or February 26, 1997); See, also, ER-36 to ER-49, ~ Findings and Recommendation of U.S. Magistrate Judge John Jelderks, adopted by Order of U.S. District Judge Anna J. Brown (App-2) in Faber v. Bombardier, Inc., U.S. District of Oregon Case No. 04-CV 645 (2005).' (3) The Circuit Court Failed to Apply the Appropriate Test for "Purposeful Availment" in This Case. This Court's reliance on "foreseeability" in State ex rel Hydraulic Servocontrols may have led the Circuit Court to lose sight of the dispositive
~

' Oregon courts will ordinarily respect decisions of lower federal courts on issues of federal law, even though it is not bound by them. State v. Reyes-Camarena, 330 Or 431, n 2 at 436, 7 P3d 522 (2000); State v. Moyle, 299 Or 691, 707, 705 P2d 740 (1985).

22

question in this case: whether CTE "'purposefully directed' [its] activities at residents of the forum," merely by delivering products to a purchaser in Ohio.
See

Burger King, 471 US at 472 (quoting Keeton v. Hustler Magazine, Inc., 465 US 770, 774 (1984)). The question that this Court must decide is whether CTE can be eci acall deemed toPurP osefull direct its activities s P.f Y at Oregon residents through Y the mere act of selling some of its products elsewhere in the United States. , Purposeful availment requires more than constructive knowledge that products might end up in a particular state. Purposeful availment means a purpose by the
~

defendant to avail itself of a state's consumers. The U.S. Supreme Court has ~ ~ ~ exPlained that~ to satisfY re uirement of u oseful availment, a defendant this q P rP must have "deliberately exploited the [state's] market" - a standard akin to specific intent. Keeton, 465 US at 781. Jurisdiction is proper, moreover, only where the "contacts proximately result from actions by the defendant himself that create a substantial connection with the forum State." Burger King, 471 US at 475 (quoting McGee v. International Life Ins. Co., 355 US 220, 223 (1957)). "[R]andom, fortuitous, or attenuated contacts" do not suffice. 471 US at 480. By contrast, the Circuit Court's analysis departs from these governing ~ principles in multiple ways. To begin with, permitting jurisdiction based on the mere possibility that a product might find its way to the forum would subject
~

~ ~

~~~

~
defendants to jurisdiction based on the independent actions of third parties. Had this analysis been correct, the U.S. Supreme Court would not have reversed the

23

~ ' ~ s '
A

California Supreme Court in Asahi as it did. The Circuit Court's decision in this case also directly contravenes the teachings of both Burger King and World-Wide ~urisdiction must rest on the de endant's u~ oseful actions, and Volkswagen that J .~ P not the actions of third parties. See Burger King, 471 US at 475; World-Wide

Volkswagen, 444 US at 295-98. This is particularly true where, as here, the

defendant has no control over the activities of those third parties (as contrasted with a scenario in which a non-resident defendant's distribution agreement requires the third party to distribute the product throughout the entire United States or, specifically, into Oregon). The mere awareness of the possibility that a product might end up in a given state cannot constitute the specific intent necessary to support personal jurisdiction. "'[F]oreseeability' alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause." World-Wide Volkswagen, 444 US at 295. Were it otherwise, "[e]very seller of chattels would in effect appoint the chattel his agent for service of process. His amenability to suit would travel with the chattel." Id. at 296. For that reason, Justice O'Connor's plurality opinion in

' t , a ' '

Asahi required additional conduct indicative of such specific intent, such as direct

I I I

marketing to forum residents or designing a product specifically for use in the

N
I I
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24

forum state. The Circuit Court's decision, however, would not even require awareness, much less purposeful conduct directed to the forum. Rather, the court's decision would allow jurisdiction based on pure speculation -- i.e., the unsupported
.

assumptions that CTE knew where Invacare derived revenue from its sales and ~ how much revenue Invacare derived from each state or that if CTE knew that
,

Invacare was marketing its products in Oregon, CTE could have known that some

I
_

of its products might end up in the forum state. Such a threshold is significantly lower than even the threshold articulated in Justice Brennan's plurality opinion, which still requires some form of actual knowledge that "the final product is being marketed in the forum State." Asahi, 480 US at 117 (opinion of Brennan, J.). No such evidence was presented in this case. Here the Circuit Court could not--and did not--find facts sufficient to justify the imposition of personal jurisdiction under either of the plurality opinions in Asahi, because there was no evidence that CTE knew or expected that its products

would be or had been sold in Oregon. This explains why the Circuit Court's ultimate rationale for its decision was simply "the state's interest in protecting its

citizens from personal injury" (ER-201). However, nothing in Asahi or any other precedents of the Supreme Court supports the extension of personal jurisdiction on such a slender foundation.

5p
. ~~.

I I I I I I I I ' I ' I I I e
~:

25

In the present case, Plaintiffs conflated the contacts Invacare and plaintiffs themselves had with Oregon with those of CTE, and thereby sidestepped the utter absence of contacts which CTE had with the forum in its own right. "Each defendant's contacts with the forum State must be assessed individually" (Keeton v.

Hustler Magazine Inc., 465 US 770, 781 n. 13 (1984)), whether the defendants are
part of the "same corporate family" (Id.) or employer and employee. Calder v.

Jones, 465 US 783, 789-90 (1984).

Plaintiffs offered no evidence: (1) that CTE controlled, encouraged, promoted, expected, or Irnew where Invacare was selling its products; (2) that CTE knew how many (or if any) wheelchairs or CTE battery chargers had been sold in Oregon; or (3) that CTE knew what, if any, revenue Invacare derived from the sale of wheelchairs or CTE battery chargers in Oregon or shared in it. CTE established that CTE's economic benefits were complete upon completion of sales to Invacare in Ohio, and that it made no practical difference to CTE whether Invacare turned around and sold power wheelchairs containing CTE battery chargers solely in the Midwestem United States, or only in Cleveland, or elsewhere (Sealed ER-35, 14). Indeed, Plaintiffs presented no evidence that CTE had any knowledge that Invacare was a nationwide distributor or seller of its products, let alone that it was doing business in Oregon, and no evidence that CTE had any power to control or direct Invacare's activities in sales, distribution, or otherwise. CTE sold battery

I I I I I I I I I
I I I

26 chargers for sums which represented a small percentage of the cost of the Invacare power wheelchairs (Sealed ER-16, 19). To the contrary, the far more logical inference from the evidence presented would be that a Taiwanese supplier of a minor component in a complex power wheelchair is the tail, not the dog. If allowed to stand, the Circuit Court's opinion would impose jurisdiction over any foreign manufacturer that could have speculated that its products could end up in the forum state. Such a standard would abandon any semblance of the "purposeful" direction toward forum consumers mandated by the U.S. Supreme Court's precedents and by due process.
(4) The Court Should Be Especially Cautious in Avoidini! an Unwarranted Extraterritorial Exercise of Jurisdiction Over a Foreign Defendant.

Another factor comes into play when, as here, the Defendant is based beyond our shores. The primacy of the federal role in relations with foreign governments and persons pervades the federal system established by the Constitution. See Born, Reflections on Judicial Jurisdiction in International Cases, 17 Ga J Int'1 & Comp L 1, at 29-31, n.123 (1987). And, while this case does not involve direct state regulation of foreign commerce, the Constitution's express grant of power to Congress to "regulate Commerce with foreign Nations" under Article 1, Section 8, Clause 3 embodies the notion that "[f]oreign commerce is pre-eminently a matter of national concern." Although the grant of the foreign commerce power to

I I

W` I I I I I '
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27

Congress does not preclude state courts from exercising jurisdiction over foreign
companies, the Supreme Court has signaled that it calls for heightened scrutiny to ensure that states' assertions of jurisdiction stay within their legitimate bounds and are reasonable. Asahi, 480 US at 115. A majority of the Court in Asahi concluded that a case involving a non-U.S. defendant calls for special consideration of the interests of other nations "as well as the Federal interest in Government's foreign relations policies." Id. The Court instructed that these interests require "a careful inquiry into the reasonableness of the assertion of jurisdiction in the particular case" and cautioned that "'[g]reat care and reserve should be exercised when extendingour notions of ersonal 'urisdiction into the international field."' Id. P J (quoting United States v. First Nat7 City Bank, 379 US 378, 404 (1965) (Harlan, J., dissenting)). (5) If There Is Any Doubt About the Effect of Asahi on Existing Case Law, the Court Should Defer Rulin$! on the Mandamus Pending an Imminent Decision by the U.S. Supreme Court in Another Pending

Case.
Based on existing case law, this Court should issue a writ of mandamus and order the Circuit Court to dismiss plaintiffs' complaint against CTE. However, any doubt about the current status of the Supreme Court's precedents in this regard will likely be resolved in another case presently pending in the U.S. Supreme Court which raises this very issue, Nicastro v. Mclntyre Machinery America, Ltd., 201 NJ
48, 987 A2d 575 (2010), cert. granted,

US

, 131 S Ct 62, 177 LEd2d 1151

1
t~.

I I I

28

(2010), which was argued before the U.S. Supreme Court on January 11, 2011. 8 If there is any doubt about the effect of Asahi on existing Oregon case law, CTE moves this court for an order deferring its decision pending a ruling by the U.S. Supreme Court in Nicastro. IV. CONCLUSION For the reasons set forth above, this Court should issue a writ commanding the

I I I I I I I I I I I

Circuit Court to dismiss the complaint against CTE for lack of personal jurisdiction, or to show cause why the complaint against CTE should not be dismissed for lack of personal jurisdiction. DATED this /S day of February, 2011. Respectfully submitted, MARTIN BISCHOFF TEMPLETON LANGSLET & HOFFMAN LLP

By

Mary-Ann S. Rayburn, OSB No. 803680 Jonathan M. Hoffman, OSB No. 754180 Joan L. Volpert, OSB No. 803942 Attorneys for Defendants -Rel ators The transcript is a.vailable online at http://www.supremecourt.gov /oral arguments/ar ument transcripts/09-1343.pdf . The same day, the Court heard argument on another case concerning personal jurisdiction, Brown v. Meter, 681 SE2d 382 (NC App 2009), cert granted sub nom Goodyear Luxembourg Tires, S.A. v. Brown, US , 131 S Ct 63, 177 LEd2d 1152 (2010). Although the issue in Goodyear appears to be one of general jurisdiction, it may be significant that the Court heard argument on both cases on the same occasion.
8

.AP.P-1

FIIf}1'i t`i D_ T R"! .i 5,1 5!FN;y-w

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

PAUL L. FABER, Plaintiff,

V.

CV 04-645-PK 1 ORDER

BOMBARDIER, INC., a foreign corporation; BOMBARDIER MOTOR CORPORATION, INC, a foraign corporation; BOMBARDIER RECREATIONAL PRODIICTS, INC., a foreign corporation; WEDCO MOULDED PRODUCTS, AN UNINCORPORATED DIVISION OF UNION CARBIDE CANADA, INC.; and DOW CHEMICAL CANADA, INC., a foreign corporation, Defendants.

1 On September 28, 2005, this case was reassigned to Magistrate Judge Paul Papak.

1 - ORDER

I ~ MARC MCCUhLOCH WALTER WEISS JR. Powers, McCulloch &Bennett, LLP 3000 Wells Fargo Center 1300 S.W. Fifth Avenue Portland, OR 97201
(503) 228-8588

APP-2

Attorneys for Plaintiff

JONATHAN M. HOFFMAN AARON C. DENTON Martin, Bischoff, Templeton, Langslet & Hoffman, LLP 888 S.W. Fifth Avenue, Suite 900 Portland, OR 97204
~ (503) 224-3113

Attorneys for Defendants Bombardier, Inc.; Bombardier Motor Corporation, Inc.; and Bombardier Recreational Products, Inc. (hereinafter referred to as Bombardier Defendants) JEANNE F. LOFTIS KATHERINE S. SOMERVELL Bullivant Houser Bailey P.C. 888 S.W. Fifth Avenue, Suite 300 Portland, OR 97204-2089
(503) 228-6351

Attorneys for Defendants Wedco Moulded Products; Union Carbide Canada, Inc.; and Dow Chemical Canada, Inc. (hereinafter referred to as Union Carbide Defendants)
BROWN, Judge.

Magistrate Judge John Jelderks issued Findings and Recommendation (458) on July 29, 2005, in which he recommended the Court grant Union Carbide Defendants' Motion to Dismiss Cross-Claims against them for Lack of Jurisdiction (#26-1), deny

the Union Carbide Defendants' Motion to Dismiss Cross-Claims against them for forum non conveniens (426-2), and grant Uniop

1
~

2 - ORDER

I I I
wo

APP-3

Carbide Defendants' Motion to Dismiss Plaintiff's Claims (#35).. Plaintiff Paul Faber and Bombardier Defendants filed timely objections to the Findings and Recommendation. The matter is;now before this Court pursuant to 28 U.S.C. 636(b)(1) and Fed. R.
Civ. P. 72 (b) .

When any party objects to any portion of the Magistrate Judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's
report. 28 U.S.C. 636(b) (1) . See also United States v.

Bernhardt, 840 F.2d 1441, 1444 (9 t'' Cir. 1988); McDonnell Douglas

Corp. v. Commodore Business Machines, Inc.,

(9`h Cir. 1981), cert.

656 F.2d 1309, 1313

denied, 455 U.S. 920 (1982). This Court

has reviewed the pertinent portions of the record de novo and

does not find any error in the Magistrate Judge's Findings and Recommendation.

CONCLUSION The Court ADOPTS Magistrate Judge Jelderks's Findings and Recommendation (#58). Accordingly, the Court GRAN'PS the Union

Carbide Defendants'. Motion to Dismiss Cross Claims against them

-

for Lack of Jurisdiction (#26-1), DENIES the Union Carbide Defendants' Motion to Dismiss Cross-Claims against them for

forum

I
3 - ORDER '
~ ~

~ ~ ~ ~ ~ ' 0 ' ' ~ ' ~ ~ ' ~ ~ ~ ~ ~

APP-4

nonconveniens (#26-2), and GRANTS the Union Carbide Defendants'

Motion to Dismiss Plaintiff's Claims (#35). IT IS SO ORDEREp.,
DATED this 1'5~'' day of October, 2005.

C
ANNA J. BRO United States District Judge
Faber CV 04-645 F&R.10-18-05.wpd

4 - ORDER

1 I I I I I I I I I I I 1

CERTIFICATE OF MAILING/SERVICE I certify that I filed the original and eight (8) copies of the MEMORANDUM IN SUPPORT OF PETITION FOR WRIT OF ALTERNATIVE MANDAMUS by hand delivering to: State Court Administrator Supreme Court Building 1163 State Street Salem, OR 97301-2563 on February lb , 2011. I further certify that I served one copy of said MEMORANDUM IN SUPPORT OF PETITION FOR WRIT OF ALTERNATIVE MANDAMUS by mailing, via first class mail, postage prepaid, to: Jeffrey A. Bowersox The Bowersox Law Firm PC 5385 Meadows Road, Ste. 320 Lake Oswego, OR 97035 Attorney for Plaintiffs-Adverse Parties Richard C. Pearce Attorney at Law 921 S.W. Washington St. , Ste. 755 Portland, OR 97205 Co-Counsel for Plaintiffs-Adverse Parties Walter H. Sweek Cosgrave Vergeer Kester LLP 805 S.W. Broadway, 8th Floor Portland, OR 97205 Attorney for Invacare Corporation, Motion Concepts, Inc. and Perpetual Motion Enterprises Jay W. Beattie Lindsay Hart Neil & Weigler LLP 1300 S.W. Fifth Ave., Ste. 3400 Portland, OR 97201 Attorney for United Seating & Mobility, LLC Ronald J. Clark Bullivant Houser Bailey PC 888 S.W. Fifth Ave., Ste. 300 Portland, OR 97204 Attorney for Pass & Seymour, Inc. Heather C. Beasley Davis Rotliwell Earle & Xochihua PC 111 S.W. Fifth Ave., Ste. 2700 Portland, OR 97204 Attorney for GA W Electric, Inc.
i

I I
~~

I
~ Joshua P. Stump Harrang Long Gary Rudnick, PC 1001 S.W. Fifth Ave., 16th Floor Portland, OR 97204 Attorney for Siemens Industry, Inc Christine F. Miller Admitted Pro Hac Vice Julia T. Farrell Admitted Pro Hac Vice J. Claire Todorovich Admitted Pro Hac Vice 190 Carondelet Plaza, Ste. 600 St. Louis, MO 63105 Ryan MeLellan Smith Freed & Eberhard, PC 111 S.W. Fifth Ave., 43rd Floor Portland, OR 97204 Attorney for Summers Group, Inc. The Honorable Richard C. Baldwin Multnomah County Circuit Court Multnomah County Courthouse 1021 S.W. Fourth Ave. Portland, OR 97204

Judge

' I I I I I I

DATED this /;"' day of February, 2011. MARTIN BISCHOFF TEMPLETON LANGSLET & HOFFMAN LLP
By

Mary-Ann S. Rayburn, OSB No. 803680 Joriathan M. Hoffman, OSB No. 754180 Joan L. Volpert, OSB No. 803942 Attorneys for Defendants-Relators

I
P"i

I I

Fl L Ep
IN THE SUPREME COURT OF THE STATE OF OREGON JEFFREY WILLEMSEN, as Personal Representative of the Estate of KARLENE J. WILLEMSEN and JAMES W ILLEMSEN, Plaintiffs - Adverse Parties,
V.

APPELLATE CUUnT ADMINISTRATQR

F~~ 15 2~i1
SCPRGM E COURT
.

Supreme Coud-IQQURT OF APPEALS

SC S

I I I

Multnomah County Circuit Court

No. 0902-01653

I I I

INVACARE CORPORATION, a foreign corporation; UNITED SEATING & MOBILITY, LLC, a foreign limited liability company; CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; CTE TECH CORP., a foreign corporation; MOTION CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS & SEYMOUR, INC., a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, INC., f/k/a Siemens Energy and Automation, Inc., a foreign corporation; SUMIVIERS GROUP, INC., dba REXEL, a foreign corporation; and GAW ELECTRIC, INC., an Oregon corporation, Defendants, and CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; and CTE TECH CORP., a foreign corporation,

EXCERPT OF RECORD VOL. 1 (ER i - 131)

Defendants-Relators. February 2011 (Counsel on Next Page)

I I

I I I I

Mary-Anne Rayburn, OSB No. 803680 Jonathan M. Hoffman, OSB No. 754180 Joan L. Volpert, OSB No. 803942 Martin Bischoff Templeton Langslet & Hoffman LLP 888 S.W. Fifth Ave., Ste. 900 Portland, OR 97204 Telephone: 503-224-3113 E-Mail: mrayburn e ,martinbischoff.com jhoffman ,martinbischoff.com jvolpert@martinbischoff.com Attorneys for Defendants-Relators

Jeffrey A. Bowersox, OSB No. 814422 The Bowersox Law Firm PC 5385 Meadows Road, Ste. 320 Lake Oswego, OR 97035 Telephone: 503-452-5858 E-Mail: ` jeffrey@blfpc.com Attorney for Plaintiffs-Adverse Parties Richard C. Pearce, OSB No. 762842 Attorney at Law 921 S.W. Washington St., Ste. 755 Portland, OR 97205 Telephone: 503-223-2966 E-Mail: rcpa,hevanet.com Co-Counsel for Plaintiffs-Adverse Parties Walter H. Sweek, OSB No. 620920 Cosgrave Vergeer Kester LLP 805 S.W. Broadway, 8th Floor Portland, OR 97205 Telephone: 503-323-9000 E-Mail: wsweekacvk-law.com Attorney for Invacare Corporation, Motion Concepts, Inc. and Perpetual Motion Enterprises

(Continued on next page)

~

I I I I I I I I

Jay W. Beattie, OSB No. 871631 Lindsay Hart Neil & Weigler LLP 1300 S.W. Fifth Ave., Ste. 3400 Portland, OR 97201 Telephone: . 503-226-7677 E-Mail: jbeattiea,lindsa,yhart.com Attorney for United Seating & Mobility, LLC Ronald J. Clark, OSB No. 880328 Bullivant Houser Bailey PC 888 S.W. Fifth Ave., Ste. 300 Portland, OR 97204 Telephone: 503-499-4413 E-Mail: ron.clarkgbullivant.com Attorney for Pass & Seymour, Inc. Heather C. Beasley, OSB No. 965443 Davis Rothwell Earle & Xochihua PC 111 S.W. Fifth Ave., Ste. 2700 Portland, OR 97204 Telephone: 503-222-4422 E-Mail: hbeasleyQdavisrothwell.com Attorney for GAW Electric, Inc. Joshua P. Stump, OSB No. 974075 Harrang Long Gary Rudnick, PC 1001 S.W. Fifth Ave., 16th Floor Portland, OR 97204 Telephone: 503-242-0000 E-Mail: joshua.stump2harran .com Attorney for Siemens Industry, Inc.

I
~4 ~d'

(Continued on next page)

~ ~ ~ ~ ' t

Christine F. Miller, Admitted Pro Hac ViceJulia T. Farrell, Admitted Pro Hac Vice J. Claire Todorovich, Admitted Pro Hac Vice 190 Carondelet Plaza, Ste. 600 St. Louis, MO 63105 Telephone: E-Mail: Attorney for Siemens Industry Inc. Ryan McLellan, OSB. No. 023908 Smith Freed & Eberhard, PC 111 S.W. Fifth Ave., 43rd Floor Portland, OR 97204 Telephone: 503-227-2424 E-Mail: rmclellangsmithfreed.com Attorney for Summers Group, Inc.

~.

Index to the Excerpts of the Clerk's Record

Volume 1 (ER1-131)

Document
Third Amended Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defendants CTE Tech Corp.'s and China Terminal & Electric Corp.'s Motion to Dismiss for Lack of Personal Jurisdiction ......... Declaration of Stephen P. Yoshida in Support of Defendants CTE Tech Corp.'s and China Terminal & Electric Corp.'s Motion to Dismiss for Lack of Personal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . Exhibit 1- Declaration of Peter Chen in Support of CTE Tech Corporation's Motion to Dismiss for Lack of Personal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . Exhibit 2- Findings and Recommendation (by Hon. John Jelderks) ................................. Plaintiffs' Opposition to Defendants CTE Tech Corp.'s and China Terminal & Electric Corp.'s Motion to Dismiss for Lack of Personal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Declaration of Plaintiffs' Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit 1 - [Proposed] Third Amended Complaint . . . . . . . . . . . Exhibit 2- Master Supply Agreement dated May 4, 2004 ...... Exhibit 3- ZapConnect.com printout on CTE Corporation Liu Tu Factory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit 4 - Correspondence to and from Juren Suuck . . . . . . . . . Exhibit 5- Defendants CTE Tech Corp. and China Terminal & Electric Corp.'s Response to Plaintiffs' First Request

ER Pap-e
1

18

31

33

36

50
66 69

86 88

for Production IZelated to the Issue of Personal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit 6- Letter to Hon. Janice M. Stewart dated July 16, 2009 ....................................... Exhibit 7- Plaintiff s First Interrogatories to Defendant China Terminal & Electric, Inc. and CTE Corporation, Also Known as CTE Tech Corp . . . . . . . . . . . . . . . . . . Exhibit 8- Invoice for Invacare wheelchair and battery charger....................................

97

115

117

130

MyFax - Boaversox Law Firm, P.C.`To:PAary Anne Rayburn (15 0 322 494 71)_

16:29 0713011oGMT-04 Pg o1-19

. ~

ER- 1

1 2 3

I ' 0 ~ 0 t ~ ' ' ~ ~

IN THE CIRCUTr COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH JEFFREY W1L.L,EMSEN, as Personal Representative of the Estate of KARLENE J. WILLEMSEN and JAMES WIIJ.EMSEN, Plaintiffs,
Case No. 0902-01653

5
6 7

8
THIItD AMENDED COMPL.AINT NOT SUBJECT TO MANDATORY ARBrTRATION JURY TRIAL DEMANDED
9

V. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 , 25 26
27 1 281

INVACARE CORPORATION, a foreign corpoiadon; UMTED SEATING & MOBILTCY, LLC:, a foreign limited liability company; CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; CTE TECH CORP., a foreign corporation; MOTION CONCEPTS,INC., a . foreign corporation; PERPETLJAL MOTION ENTERPRISES', LTD, a foreign corporation; PASS & SEYMOUR, INC., a foreign. corporation; SIEMENS CORPORATION, a foreign wrpoiation; SIElV>1;NS IlVDUSTRY, INC, f/k/as Siemens Energy and Automation, Inc., a foreign corporation; SUMMERS GROUP, INC:, dba REXEL, a foreign corporation; and GAW ELECTRIC, INC. an Oregon Corporation, Defendants.

Plaintiffs allege: PARTIES

1.
Plaintiff Jeffrey Willemsen is the duly appoirned Personal Representative of the Estate of his deceased mother, Karlene J. Willemsen. The Estate is filed in Multnomah County, Oregon and at all relevant times, Jef&ey Willemsen was and is a citizen of the state of Oregon and plaintiffs decedent, Karlene J. Willemsen, was a citizen of the state of Oregon. James Willemsen is decedent

Page 1- THIRD AMENDED COMPLAINT

, I I, `

9awmwx uw Fuer, e.c. SM Meadnws Rued. Snire 370

7.sloe oimego. C819H135 (SBU452 3838

m:IbiyFax - Bowrersox Law Firm, P.C. To:iblary Anne Rayburn (15032249471)

ER-2 - -- - 16:29 07130/10GMT-04 Pg 02-1"9 ~

_J

1
2

Kailene J. Willemsen's son who was living in the same home as his now deceased mother and whose property was destroyed and who has suffered f~inancial loss as a result of the house fire that occurred from the defective products as hereinafter alleged. Plaintiff James Willemsen is a citizen of the state of Oregon.
2.

e a ~ ' ' a

3
4

5 6 7 8 9

Invacare Corporation ("Invacare") is a corporation with its primary place of business in Ohio and is a citizen of Ohio. Invacare is one of the world's leading manufacturers of mobiiity assistance products, including the Invacare power assisted wheelchair purchased by and on behalf of Karlene J. Willemsen. Invacare also manufacturers motorized hospital beds, including the motorized hospital bed that was delivered to and in use by Karlene J. Willemsen on February 1, 2008.

10 11
12 I

3.
United Seating & Mobility, LLC ("US&M") is a corporation with its primary place of business in Missouri and is a citizen of Missouri on information and belief, US&M may also be a citizen of other states through the individual members of the LLC. United Seating is an authorizEd Invacare products retailer with multiple show rooms in Oregon, including the Portland metropolitan area. United Seating sells, leases and distributes Invacare mobility products and accessories, provides installation and training to purchasers and provides inspection and repair services for lnvacare products in Oregon, including the Invacare power assisted wheelchair purchased by Karlene J. Willemsen. 4.

13 14 15 16 17 18 19 20

I I
~

21
22 ,~

CTE TECH Corp. ("CTE") is a Taiwan corporation that is not a citizen of Oregon and that manufactures batteries and/or battery chargers and conducts business in the United States of America
and provides component parts and/or accessories that were used in the lnvacare power assisted wheelchair sold to decedent Karlene J. Willemsen by United Seating andlor in the Invacare motorized hospital bed sold or leased to decedent Karlene J. Willemsen, China Terminal & Electric Corp. is a prior business name of defendant CTE TECH Corp. that manufactured batteries and/or battery chargers, and conducted business in the United States of America and provided component

23 24

21 26 27 28

Page 2- THIRD AMENDED COMPLAINT

BawtRSOx law Faw, r.c. S?SS Akadows Rmd, saih 320
[,ake Oswega OR 9Y033 (503) 4535838
~

:m:fiAyFax - Bovversox Lawf+rm, P.C. To:Mary Anne Rayburn (15032249471)

16:29 07130110GMT-04 Pg 03-19

p~

ER-3

1
2 3

parts and/or accessories that were used in the Invacare power assisted wheelchair sold to decedent Karlene J. Willemsen by United Seating and/or in the Invacare motorized hospital bed sold or leased to decedent Karlene J. Willemsen. Collectively CTE TECH Corp. and China Terminal & Electric

4 Corp. are referred to herein as "CTE." CTE knew from its dealings with Invacare that Invacare's
5 6

product.s including thebattery charger and component parts and/or accessories manufactured by CTE would be distributed throughout Invacare's market in the 50 United States, including Oregon.

7
8

5.
Motions Concepts, Inc. ("Motion Concepts"), on information and belief is a corporation

9 organized under the laws of Canada and/or the state of New York and is a citizen of Canada and/or
10
New York and conducts business in the United States of America and provides component parts and/or accessories that, on information and belief, were used in the Invacare power assisted wheelchair sold to decedent Karlene J. Willemsen by United Seating.

11 12

13 14 15

6.
Perpetual Motion Enterprises, Lxd. ("Perpetual Motion"), on information and belief is a corporation organized under the laws of Canada and is a citizen of Canada and conducts business in the United States of America and provides component parts andlor accessories that, on information and belief, were used in the Invacare power assisted wheelchair sold to decedent Karlene J. Willemsen by United Seating.

16
17 18

19 20

7.
Pass & Seymour, Inc. ("Pass & Seymour") is a corporation organized under the laws of the

21 , state of Delaware and is a citizen of Delaware with its principal place of business at 50 Boyd

22 23 24

Avenue, Syracuse, NY 13221. Pass & Seymour provided electrical component parts that, on information and belief, were used in the construction of the home located at 9232 SW 5th Ave, Portland, Oregon 97219.
8.

25 26 ~
~

S iemens Industry, Inc., formerly lmown as Siemens Faiergy and Automation, Inc. ("Siemens ") is a foreign corporation and provided electrical component parts that, on information and belief, were

27

28 I used in the construction of the home located at 9232 SW 5th Ave, Portland, Oregon 97219.

Page 3- THIRD AMENDED COIVIPL,AINT

eowsox LAw Paw, r.c
5297 MeaCawcRoad. Suite 320
~

likElhuregO.lAKY7li35

ison asrsasa

na:MyFax - Bowrersox Law Firm, P,C. To:Mary Anne Ray burn (15032249471)
'

16:29 07130110GfV1T-04 Pg 04-19

~

ER-4

1 2
3 4 5 6 7 8

9.
Summers Group, Inc. is a corporation organized under the laws of the state of Texas and is a citizen of Texas with its principal place of business at 6606 Lyndon B Johnson Freeway, Suite 200, Dallas, TX 75240-6524. Summers Group, Inc. operates in Oregon under the assumed name Rexel and distributed outlets, switches and circuit breakers that, on information and belief, were used in the construction of the home located at 9232 SW 5th Ave, Portland, Oregon 97219. Summers Group, Inc, is hereinafter referred to as "Rexel."
10.

9'
10 11 12

GAW Electric, Inc. is a corporation organized under the laws of the state of Oregon and is a citizen of Oregon and provided electrical installation contracting services on Ms. Willemsen's home located at 9232 SW 5th Ave, Portland, Oregon 97219. COMMON ALLEGATIONS
11.

13 14 15

PlaintifPs decedent Kariene J. Willemsen was burned to death while confined to her
w motonzed hospital bed. The bed as m Ms. Willemsen s 'bedroom in her home located at 9232 SW

16 17 18

5th Ave, Portland, Oregon 97219 the morning of February 1, 2008.

12.

Defendant Invacare manufactured, soid and/or distributed the motorized hospital bed in

19 which Ms. Willemsen was resting at the time of the fire. Defendant lnvacare also manufactured,
20
sold and/or distributed the power assisted wheelchair used by Ms. Wiliemsen in her home. The

21 I power assist.ed wheelchair was manufactured, sold and/or distributed with a battery charger and

22 23 24

component parts manufactured by defendant CTE. The power assisted wheelchair was also manufactured, sold and/or distributed with component parts manufactured, sold and/or delivered by defendants Motion Concepts and Perpetual Motion.

25 26

13.
United Seating sold, distributed and/or leased the power assisted wheelchair and its

27 component parts including the battery charger and component parts manufactured by CTE and

I 1"'",

28 E accessories and also sold, distributed and/or leased the motorized hospital bed to Ms. Willemsen.
Page 4- THIRD AMENDED COMPLAINT
8awmawx lww F1au, v.c. 5283 MeaCOws Roud. Sim 320 Laloe OvWW. OR 97033 fM1452-5$38

m:MyFax - Bowersox Law Firm, P.C. To:PAary Anne Rayburn (15032249471)

16:29 07130110GMT-44 Pg 05-19

~

ER-5

The sale of these products occurred in Oregon. The particular power assisted wheelchair was

2 1 selected by Ms. Willemsen through the sales promotional efforts and representations made regarding
3 1 the power assisted wheelchair by United Seating and its employees and/or agents acting within the

~ ' ' I I I I I I

4 5 6 7 8

course and scope of their employment.

14.

An employee or authorized agent of United Seating arranged for delivery and installation of the power assisted wheelchair at decedent Karlene J. Willetnsen's home. At that time, the employee and/or authorized agent of United Seating provided some basic information about the power assisted

91 wheelchair but did not give any warnings related to fire hazard andlor fire danger or any information
10 11 12
about the history of fire hazard or danger from similar Invacare products.
15.

Following the delivery and installation of the power assisted wheelchair by United Seating, Ms. Willemsen noticed an unusual noise during certain operations of the power assisted wheelchair.

13

14 United Seating sent a service technician who was either an employee or authorized agent, who 15 16 17 18
examined the power assisted wheelchair and performed some service on the power assisted wheelchair. The service technician gave no warnings about any fire hazard or danger associated with w the po er assisted w heelchair, its com onentparts and/or its accessori no did th e p es, r sernce technician give any warning about potential fire hazard or danger associated with the condition of

19 the power assisted wheelchair at the time the service technician examined and/or performed service 20 on the power assisted wheelchair.
21'

16. Pass & Seymour is the manufacturer, seller and distributor of the outlets and switches that were installed in Ms. Willemsen's home and in use on t.he day of the fire.

22 23

24 25 26 27

17. Seimens is the manufacturer, seller and distributor of the circuit breakers that were installed in Ms. Willemsen's home and in use on the day of the fire.

I ~

28
Page 5- TIIIRD AMENDED COMPLAINT
_ BOWEASQX IJ.W FhW. P.G

5285 Mcadovs RoaQ. Saite 320 Wre Oawego, Ot 97U3S (301) 432-5858

~~

m:MyFax - Bowersox Law Firm, P.C. To:Mary Anne Rayburn (15032249471)

_.

16:29 07I30110GMT-04 Pg 06-19

ER-6

1 2 3 4 5 6 7 8

18.

Rexel is distributor of electronic components including the outlets, switches and circuit breakers that were installed in Ms. Willemsen's home and in use on the day of the fire.
19.

GAW Electric is the electrical installation service and contracting company that installed the circuit breakers, outlets and switches in Ms. Willemsen's home that were in use on the day of the fire.
20.

On February 1, 2008, the Invacare power assisted wheelchair, its component parts and/or accessories and/or battery chargers rnanufactured, sold, Ieased and/or distributed by defendants Invacare, Motion Concepts, Perpetual Motion, CTE and US&M and/or the motorized hospital bed

I 0 I

9
10

11 ~ manufactured, sold, leased or distributed by lnvacare and US&.M nialfwictioned and caused a fire 12' to begin in Karlene J. Willemsen's bedroom.

13 14 15 16 17 18
19 ~

21.

I I I
I ~ ~ ~ ~

Alternatively, on February 1, 2008, one or more of the outlets, switches and/or circuit

breakers manufactured, sold, leased or distributed by defendants Pass & Seymour, Seimens and Rexel and installed in Ms. Willemsen's home by GAW Electric malfunctioned and caused a fire to begin in Karlene J. Willemsen's bedroom.
22.

Alternatively one or more of the outlets, switches and/or circuit breakers was or were improperly installed by defendants GAW Electric, which improper installation caused a fire to begin in Karlene J. Willemsen's bedroom on February 1, 2008.
23.

20 21 22 23 24 25

Prior to'the fire, Ms. Willemsen had maneuvered her power assisted wheelchair to the edge of her bed, had then worked her way into the motorizeri hospital bed and had plugged the power assisted wheelchair into its electric battery charger.

26 ll lI II ll 27 28
Page 6- THIRD AMENDED COMPLAINT
BINYPYSOX lUW FLlBd, P.C.

S?83 Mmdows Road. Slu 7M

I.ake Ossvego, oR970J3 (SN) 632-5a58

m:MyFax - Bowersox Law Firm, P.C. To:Mary Anne Rayburn(15032249471

-_

16:29 07130/10GMT-04 Pg 07-19

ER-7

I ,
I I I
2 3 4 5 6

24.

Plaintiffs' decedent, Karlene J. Willemsen, suffered from multiple sclerosis disease that severely limited her mobility and as a result of which, Ms. Willemsen required a substantial period of time within which to move herself from her power assisted wheelchair into her bed and/or from her motorized hospital bed into her power assisted wheelchair.
25.

The fire consumed the hospital bed in which Ms. Willeinsen was resting and incinerated Ms.

8 1 Willemsen who was unable to remove herself from her bed prior to being burned to death.
9 26.

I a I
' ' I I I

10 11 12 13 14 15 16 17 18
19' 20 '

The autopsy and medical evidence demonstrates that Ms. Willemsen was alive and conscious at the time of the fire and that she suffered significant pre-death burns, physical injury and psychological terror.
27.

Ms. Willemsen sustained physical pain and pre-death terror, along with the conscious knowledge of her im din death throu incineration as a result of defendants' defective roducts P~ p Pan g and/or negligence, resulting in non-economic damages to Ms. Willemsen in an amount determined by the jury to fairly and adequately compensate her for her injuries and damages in accordanc:e with Oregon law in an amount not to exceed $5,000,000.
28.

Ms. Willemsen perished in the firc caused by defendants' defective products andlor negligence as alleged herein resulting in the loss of society, companionship, love, affection and care for those persons for whom the Oregon state legislature has established a claim pursuant to Oregon's

21 22

23 ' wrongful death statute, and/or pursuant to Oregon's conunon law in an amount determined by the

24 jurors to fairly and adequately compensate the lawful beneficiaries in accordance with that statute, 25 26 27 ~ 28
and/or common law, but in an amount not to exceed $3,000,000.
29.

The fire caused by the defective products and/or negligence as alleged herein caused physical damage to Ms. Willemsen's house. The property damage and repair to Ms. Willemsen's house and Page 7- THIRD AMENDED COMPLAINT

BoWFSwx tww Pwu, M. 5785 [daduws Rmd,Suhe 320 OR lAloe Oswego. 47035 (5031452-5ASR

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16:29 07130110GNiT-04 Pg 08-19

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I
~ ' ' t t , e ~ t ~

1
2 3 4 5 6 7 8 9

laintiff J ames Willemsen's loss of use of Pert and destruction ofPe rsonal personal property andP P ro Y property and other consequential damages has caused plaintiffs' economic damages in the amount of at least $502,283.04. Additional expenses will likely be discovered and incurred and the final amount will be proven at trial. Plaintiffs are entitled to prejudgment interest at the legal rate of 9% per annum on these economic losses from the date incurred until the entry of judgment herein.
30.

Plaintiff James Willemsen sustained personal property loss and loss of use of the home where he lived with his mother as a result of the fire to his economic dama ge in the amount of $57,150.83. James Wiilemsen's loss of use of the premises will continue into the future and his damages will be amended at the time of trial. Plaintiff James Willemsen is entitled to prejudgment interest on his economic losses at the legal rate of 9% per annum from the date incurred to the date of entry of

10 11

12 judgrnent herein. 13 14 15 16 17
31.

Invacare is one of the world's largest manufacturers of mobility products with sales of over $1,500,000,000 durin g 2007. Invacare knows that its products are used by people with signific an t personal physical disabilities and whose life and safety depend on the quality control and safe performance of lnvacare products and all of the accessories and component parts used with Invacare

18' products, including the power assisted wheelchair sold to Ms. Willemsen.

19 20 21 22 23 24

32.

lnvacare has an extensive litigation history of defective products, including multiple serious fire damage, fire personal injury and fire death claims related to its products which led to a recall of

a
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one or more products during a period of time prior to plaintiffs death in February of 2008.
33.

lnvacare made repeated public assurance.s that its quality control problems had beenresolved and that the defects in recalled units in no way compromised the safety and quality of its products available for purchase during 2006 and 2007, including the Invacare power assisted wheelchair and accessories sold to Ms. Willemsen.

25 26 27
28 p

Page 8- Tl iIRD AMENDED COMPLAIN'r

Bowtxsmt i.Aw FLw, P.C. SM McaCuws Read. Smk 33D Late oswego. OR 47035
(503)452-5836

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16:29 07130/10GMT-04 Pg 09-19

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34. Plaintiffs commenced t.heir action for personal injury and property damage against defendants, and each of them, within two years of the date that plaintiffs discovered, or reasonably should have discovered, the causal connection between the injury and/or property damage and each defendants' product and/or the conduct of each defendant giving rise to the claim. FIRST CLAIIVI FOR RELIEF (Strict Products Liability) COUNTI

8' 9 10

(Power Assisted Wheelchair) (Against Defendants Invacare, US&M, CTE, Motion Concepts and Perpetual Motion) 35. Plaintiffs reallege paragraphs 1 through 34 above as though fully set forth herein.
36.

11
12 13 14 15 16 17 18 19 20

Defendants Invacare, US&M, Motion Concepts, Perpetual Motion and CTE (collectively "Power Wheelchair Defendants"), and each of them, is a manufacturer, distributor, seller and/or lessor of a product within the meaning of ORS 30.900, et seq. 37. Power Wheelchair Defendants, and each of them, delivered a product that ultimately reached the consumer, Karlene J. Willemsen, in the normal flow of commerce, and without any significant change in the product from the time it left the individual Power Wheelchair Defendants' control, until the time of injury alleged herein.
38.

21 22 23 24

Power Wheelchair Defendants, and each of them, defectively designed, inspected, tested, manufactured or otherwise created and sold and delivered a product or component part and/or

25 i accessories of the Invacare power assisted wheelchair that caught fire on February 1, 2008, 26 27

causing the personal injury, death, property damage and other losses alleged above.

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_

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Page 9- THIRD AMENDED COMPLAINT

BawEasox uw paw, P.C. S' Mradows Road. Saicc 330 .$S Lala: Osaep, OR 97033 I50314325858

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1 2

39

Power Wheelchair Defendants, and each of them, failed to provide plaintiffs with appropriate warnings regarding the defectively dangerous nature of the product ultimately delivered to Karlene J. Willemsen, thereby preventing Ms. Willemsen, James Willemsen and
other persons from being aware of the defects in defendants' products and protecting themselves from the defects, causing personal injury, death, property damage and other losses alleged herein.

v
I
8
9

40.

Power Wheelchair Defendants, and each of them, failed to properly instruct Ms. Willemsen in the proper use of their products in a manner that would have been sufficient to prevent the fire, thereby causing personal injury, death, property damage and other losses alleged herein.

10
11 12'

13 14 15

COUNT 11 (Invacare Motorized Hospital Bed) (Against Defendants Invacaze and US&M)
41.

16 17 I herein.

Plaintiffs reallege paragraphs 1 through 34 and 36-40 above, as though fully set forth

18 19 20 21 22 23 24

42.

I I
~ ~ ~

Defendants Invacare and US&M, and each of them, is a manufacturer, distributor, seller
and/or lessor of a product within the meaning of ORS 30.900, et seq.
43.

Defendants Invacare and US&M, and each of them, manufactured, dist.ributed, sold and/or leased a product that ultimately reached the consumer, Karlene J. Willemsen, in the normal flow of commerce, and without any significant change in the product from the time it left the individual defendants' control, until the time of injury alleged herein.
44.

25 26 27
28

US&M distributed, sold and/or leased the Invacare motorized hospital bed to Ms. Willemsen for use in her home. Page 10 - THIRD AMENDED COMPLAINT
BOWEa5pX1AW FMM. P.C.

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57ffi Mndows Rwd. Suice 3M lalre Ocaego. OR 97035
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1
2 3 4

45.

Defendant Invacare defectively designed, inspected, tested, manufactured or otherwise created and sold and delivered a product or component parts and/or accessories of the Invacare motorized hospital bed that caught fie on February 1, 2008, causing the personal injury, death, property damage and other losses a)leged herein.
46.

I I ~ I I ' I

5 6 7 8 9

Defendant US&M defectively, inspected, tested, or otherwise sold and delivered a product or cornponent parts and/or accessories of the Invacare motorized hospital bed that caught fie on February 1, 2008, causing the personal injury, death, property damage and other losses alleged herein.

10 11 12 13 14 15 16 17
18'

47.
Defendants Invacare and US&M failed to provide plaintiffs with appropriate warnings regarding the defectively dangerous nature of the product ultimately delivered to Karlene J. Willemsen, thereby preventing Ms. Willemsen, James Willemsen and other persons from being aware of the defects in defendants'Products and P rotectin themselves from the defects all to g , their economic and non-economic damage as alleged herein.
48.

Defendants Invacare and US&M failed to properly instruct plaintiffs in the proper use of

I
I

19 ' their products in a manner that would have been suff cient to prevent the fire and causing the

20 personal injury, death, property damage and other losses alleged herein. 21 22 23 24 25 26 27
COUrrr ul (Circuit Breakers, Switches and Outlets) (Against Defendants Siemens, Pass & Seymour and Rexel)
49.

Plaintiffs reallege paragraphs 1 through 34, 36-40 and 4248 above, as though fully set

forth herein.

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6QWPItSWC UW F6W, P.C.

5285 Meadoaa Rood. Se 3:0 lakt oswePa, OR 97tl3J (503)452-S8SS

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16:29 07130110GMT-04 Pg 12-19

ER-12- -

1
2 3

50.

Defendants Seimens, Pass & Seymour and Rexel, and each of them, is a manufacturer, distributor, seller and/or lessor of a product within the meaning of ORS 30.900, et seq.
51.

4
5 6 7 8 9

Defendants Seimens, Pass & Seymour and Rexel, and each of thern, manufactured, distributed, sold and/or leased a product that ultimately reached the consumer, Karlene J. Willemsen, in the normal flow of commerce, and without any significant change in the product from the time it left the individual defendants' control, until the time of injury alleged herein.
52.

10 11 12

Defendants Seimens and Pass & Seymour defectively designed, inspected, tested, manufactured or otherwise created and sold and delivered a product or component parts of the outlets, switches and circuit breakers that malfunctioned on February 1, 2008, causing the

13' personal injury, death, property damage and other losses alleged herein. 14

53.
Defendant Rexel defectively inspected, tested, or otherwise sold and delivered a product or component parts to the circuit breakers, outlets and switches that malfunctioned on February 1, 2008, causing che personal injury, death, property damage and other losses alleged herein.
54.

15 16 17 18 19

Defendants Seimens, Pass & Seymour and Rexel failed to provide plaintiffs with

20 ' appropriate wamings regarding the defectively dangerous nature of the products ultimately

21 22 23 24 ~ 25 26 27 28

delivered to Karlene J. Willemsen, thereby preventing Ms. Willemsen, James Willemsen and other persons from being aware of the defects in defendants' products and protecting themselves from the defects, all to their economic and non-economic damage as alleged herein.

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Page 12 - THIlZD AA9ENDED COMPI.AINT

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SECOND CLAIM FOR RELIEF NEGLIGENCE

COUNTI
(Invacare Power Assisted Wheelchair) (Against Defendants Invacare, USc4tM, China Terminal & Electric, CTE, Motion Concepts and Perpetual Motion, )

e
7

55.

Plaintiffs reallege paragraphs 1 through 34, 36-40, 42-48 and 50-54 above as though fully alleged herein.

8
56.
9

Defendants Invacare, US&M, CTE, Motion Concepts and Perpetual Motion were

10
negligent in one or more of the following ways: failing to adequately design, inspect, test,

11
manufacture , instruct or warn, repair andJor otherwise properly and safely develop, deliver and

12
maintain the Invacare power assisted wheelchair, component parts and/or accessories sold to

13
Karlene J. Willemsen.

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s ~ ~

14
57.

15
The defendants identified in paragraph 56 above, knew or should have knov+m that the

16
power assisted wheelchair, its component parts or accessories could and would malfunction in

17
some fashion and cause a f"ire, including the fire that caused injuries and death to Karlene

18
Willemsen and the property damage and other economic loss alleged herein.

19 20 21 22 23
24 :

COUNTII
(Motorizeii Hospital Bed) (Against defendants Invacare and US&lv)
58.

Plaintiffs reallege paragraphs 1 through 34, 36-40, 42-48, 50-54 and 56-57 above as though fully alleged herein. 59.

25 26 27 28
P
~

Defendants Invacare and US&M were negligent in one or more of .the following ways:
failing to adequately design, inspect, test, manufacture, instruct or wam or otherwise properly Page 13 = THIRD AMENDED COMPLAIIV'f
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1 2 3 4

and safely develop and deliver the motorized hospital bed, component parts and/or accessories sold to Kazlene J. Willemsen.
60.

Defendants Invacare and US&M knew or should have known that the Invacare motorized hospital bed, its component parts or accessories could and would malfunction in some fashion and cause a fre, including the fire that caused injuries and death to Karlene Willemsen and the property damages and other economic loss alleged herein.

a ' ~ ' t ' ~ ' t s ~ ~

I

5
6 7 8

9 10 11 12
I,

COUNT IlI (Circuit Breakers, Switches and Outlets) (Against Defendants Seimens, Pass & Seymour and Rexel)
61.

Plaintiffs reallege paragraphs 1 through 34, 36-40, 42-48, 50-54 and 59-60 above as though fully set forth herein.

13 14
62.

15
Defendants Seimens, Pass & Seymour and Rexel were negligent in one or more of the

16
following ways: failing to adequately design, inspect, test, manufacture , instruct or wam and/or

17
otherwise properly and safely develop and deliver the outlets, switches and circuit breakers,

18
component parts and/or accessories sold to be used in the home of Karlene J. Willemsen.

19 63. 20
The defendants identified in paragraph 62 above, knew or should have known that the

21 22 23
Karlene Willemsen and the property damage and other economic loss alleged herein. outlets, switches and circuit breakers, their component parts or accessories could and would malfunction in some fashion and cause a fire, including the fire that caused injuries and death to

24
%/ // // //

25 26 27 28
Page 14 - TH1RD AMENDED CONIPLAIlVT
BOWPRSU%IaW Fbt(N.P.t. 5M Mradows Foed. Suite 320

W e Osaega. OR 97035 (303)132-3838

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2 3

THIltD CLAIIVI FOR RELIEF NEGLIGENT INSTALLATION (Against Defendant GAW Eiectric)
64.

Plaintiffs reallege paragraphs 1 through 34, 36-40, 4248, 50-54, 59-60, 62-63 above as
5

though fully set forth herein.

6 65. 7

Defendants GAW Electric negligently installed one or more circuit breakers, outlets

8
and/or switches in Karlene Willemsen's house by failing to properly wire and/or secure wiring to
9

the circuit breakers, outlets and/or switches thereby causing the fire described herein.

10
66.

11
The negligence of defendants GAW Electric caused the personal injury, death and other

12
losses alleged herein.

13
14'

FOURTH CLAIM FOR RELIEF

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~ ~ ~

15
UNLAWFUL TRADE PRACTICES ACT ("UTPA")

16
67.

17 Plaintiffs reallege paragraphs 1 through 34, 36-40, 42-48, 50-54, 59-60, 62-63 and 65-66

18
above as though fially set forth herein.

19
68.

20
Defendants, and each of them, violated ORS 646.608 (1)(e)(f)(g) and (t).

21
69.

22
Defendants' violations of the Oregon UTPA give rise to a right of civil action by plaintiffs

23
~

herein pursuant to ORS 646.63 8, including the right to reasonable attomey fees, costs and other

24
equitable relief as deemed appropriate by the court.

25
70.

26
Defendants, and each of then-4 wilfully violated Oregon's LTTPA, as the tersrt ",willful" is

27
defined pursuant to the Oregon UTPA.
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SowsRiox Lna' FbW, r.c 5285 Mcadovrs Rwd. 9uitz 370
We QsuKgo, Oi 97033 1503)452-5839

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16:29 07130/10GNiT -04 Pg 16-19

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1 2 3 4 5 6 7 8 9

71. As a result of the violation of the Oregon LTTPA by defendants and each of them, plaintiffs have suffered ascertainable loss as alleged herein. 72. Plaintiffs commenced their action against defendants, and each of them, within one year of plaintiffs' discovery of the violations of Oregon's UTPA by defendants, and each of them.

DEMAND FOR JURY TRIAL

73.

10

Plaintiffs hereby demand trial by jury.

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I

11 12 13
PRAYER FOR RELIEF WHEREFORE, plaintiffs pray for judgment against defendants and each of them as

14~ I follows: 15 I

As to plaintiffs' first, second and third claims for relief: a. For economic damages in an amount of at least $502,283.04 or such other amount

16 17 18

to be proven at trial, together with prejudgment interest thereon at the legal rate of 9% per annum from the date the loss occurred until the entry of judgment herein; b. Non-economic damages for her pre-death burns, physical injury and psychological

I I

19 20 21 22

terror in an amount determined by the jury to fairly and adequately compensate Karlene J. Willemsen for her pre-death bums, physical injury and psychological tenor in accordance with Oregon law, but in an amount not to exceed $5,000,000; C. Non-economic damages pursuant to Oregon's wrongful death statute and/or

23

24 Oregon common law allowing prosecution of ciaims for the wrongful death of Karlene J.
25 ' Willemsen, in an amount determined by the jury to fairly and adequately compensate her

26 survivors for whom the Oregon legislature and/or Oregon common law has provided a right to 27 compensation, in an amount determined by the jury to fairiy and adequately compensate them for

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281 their loss, however, in an amount not to exceed $3,000,000. Page 16 - THIRD AMENDED COIVIPLAiNT
Hoartmmoc tAvw F>aa, r.c. 5295 Mkadoas Rna4 Snirc 371J Lakc Ocwego. OR 47035 (503)4535958

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1 2 3 4

As to plaintiffs' fourth claim for relief: a. The ascertainable losses proven by plaintiffs, together with prejudgment interest

thereon at the legal rate of 9% per annum from the date of loss until the entry of judgment herein; b. Other equitable relief pursuant to the specifiic powers granted to the court under

5 6 7 8 9
10

the Oregon Unlawful Trade Practices Act; and C. Plaintiffs' reasonable costs and attomey fees pursuant to the Oregon UTPA.

ALL CLAIMS FOR RELIEF On alI of plaintiffs' claims for relief, plaintiffs' reasonable costs and other relief as the court deems just and equitable. DATED: Ju1y~, 2010

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14 15 16 17 1$
19 .

20 21 22 23 24 25 26 27 28
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HOWERS(ll( IaW EW PL

33&S Meadws Roed. Suiu 320

take Oswebo, OR 97035 (503} 43?-5858

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4 5 6 7 8 V. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ~ ~ 23

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH JEFFREY WILLEMSEN, as Personal Representative of the Estate of KARLENE J. WILLEMSEN and JAMES WILLEMSEN, Plaintiffs, INVACARE CORPORATION, a foreign corporation; UNITED SEATING & MOBILITY, LLC., a foreign limited liability company; CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; CTE TECH CORP., a foreign corporation; MOTION CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS & SEYMOUR, INC., a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, INC, f/k/as Siemens Energy and Auto_mation, In c. ,_a foreign corporation; SUIVIMERS GROUP, INC., dba REXEL, a foreign corporation; and GAW ELECTRIC, INC., an Oregon corporation, Defendants. Case No.: 0902-01653 DEFENDANTS CTE TECH CORP.' S AND CHINA TERMINAL & ELECTRIC CORP.'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION ORAL ARGUMENT REQUESTED (Original Complaint Filed: February 2, 2009) (Removed to US District Court: June 1, 2009) (Remanded back to Circuit Court: January 28, 2010) (First Appearance Fee: $188.00) (Motion To Dismiss: $50.00)

UTCR 5.050 NOTICE

Pursuant to UTCR 5.050, oral argument is requested. It is estimated the hearing will take 30 minutes. Moving defendants will provide private court reporter services.

UTCR 5.010 CERTIFICATION OF COIVIPLIANCE

Counsel for Defendants CTE TECH CORP.'S and CHINA 'I'ERMINAL & ELECTRIC

24 CORP.'S (a prior business name of CTE TECH CORP) (hereinafter collectively "CTE") certifies 25 that she conferred in good faith with counsel for Plaintiffs before filing this motion but was 26 unable to resolve the issues in dispute satisfactorily.

~ Pa e 1 g
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DEFENDANTS CTE TECH CORP.'S AND CHINA TERMINAL & ELECTRIC CORP.'S MOTION TO DISMISS FOR LACK OF PERSONAL
JURISDICTION

"'ARaNCSi.~a oFF~t~ PN'

ggBSWFifthAvenue,
Porttand, OR 97204 '

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Telephone (503) 224-3113

I 2 ; 4 5 6 7 8 9 10 11 12 13

4VIOTION CTE moves to dismiss Plaintiffs' action pursuant to ORCP 21 on the basis that this Court lacks personal jurisdiction.

PROCEDURAL HISTORY
The lawsuit was originally filed in Multnomah County Circuit Court in February 2009. In June 2009, the case was removed to U.S. District Court of Oregon. Thereafter, CTE filed a motion to dismiss Plaintiffs' action for lack of personal jurisdiction. Briefing and hearing on the motion to dismiss were stayed pending discovery on jurisdictional issues. CTE recently provided Plaintiffs with its responses to plaintiff s Requests for Production of Documents relating to the limited issue of CTE's contacts with the State of Oregon. In January 2010, Plaintiffs filed their First Amended Complaint adding new parties, including an Oregon resident company. On January 28, 2010, the case was remanded to Multnomah County Circuit Court. Recently, Plaintiffs filed their Second Amended Complaint. The Second Amended Complaint

14 tiled on or about March 15, 2010, did not change any of the allegations against CTE. 15 16

JURISDICTIONAL FACTS
The action arises out of a February 1, 2008, fire in Portland. Oregon. According to

17 Plaintiffs' Second Amended Complaint, Karlene J. Willemsen died as a result of a fire which 18 19 20 21 22 23 24 26 26
~

started in the bedroom of her home. The action is maintained by the personal representative of decedent's estate, Jeffrey Willemsen. Plaintiffs have sued multiple defendants who they believe were potentially involved in the design, manufacture, marketina. sale, or service of the motorized wheelchair, motorized hospital bed, as well as electrical components and accessories located in the bedroom where the fire originated. James Willemsen has also brought a property damages claim against Defendants relating to the home. Plaintiffs claim that CTE is liable for manufacturing the battery and/or battery charger that was a component part and/or accessory of the decedent's Invacare motorized wheelchair. (Second Amended Compl., 4). Plaintiffs'

Second Amended Complaint does not identify the model battery and/or battery charger allegedly DEFENDANTS CTE TECH CORP.' S AND CHINA TER1vlINAL & ELECTRIC CORP.'S MOTION TO DISMISS FOR LACK OF PERSONAL
JI-1RISD1CT10N ON, ~ NGSLET 8 HOFFMAN LLP T
Attorneys at Law

Page 2
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888SWFi ft hAvenue,suite900 Tetephone8( 03)zza-3113

ER-20

I
1 manufactured by CTE, nor does it allege in what particulars the C'I'E product was allegedly 2 defective. In addition, Plaintiffs' Second Complaint does not contend that CTE had any direct ; 4 5 contact with the wheelchair retailer, decedent, or any other Oregon individual or entity with respect to any of the products at issue. CTE is a Taiwanese company. (Chen Declaration, Ex. l, ~j 3, attached to Declaration of

6 Stephen Yoshida). It was formed in 1974 in Taipei, Taiwan and has been headquartered in 7 Taiwan since its formation. Id. The company manufactures wire harnesses, battery chargers, 8 and meters, which are used as accessories and component parts in other products. 9 does not have any manufacturing plants in the United States.
Id at T 6. CTE

Id at ~ 5. CTE's manufacturing

10 plants are located in Taiwan and China. Id. A11 design and manufacturing activities take place I1 12 in Taiwan. Id. CTE does not have any employees, directors, or offices in the United States.
Id at 7.

13 Furthermore, CTE has no physical or business presence in the State of Oregon. The company is 14 not licensed or re gistered to conduct business in Oregon, does not advertise or solicit business in

15 Oregon, and does not have contracts with or sell any of its products directly to any Oregon-based 16 vendors, retailers, distributors, or individual consumers. Id at ~ 7-I 1. CTE did not have contact

17 with the decedent or United Seating and Mobility, the alleged seller of the motorized wheelchair, 18 19 with respect to the subject wheelchair or any of its parts, components, or accessories. Id at 13. In addition, CTE did not design, control, or have any involvement in the system of distribution
Id at 14. Other

20 that ultimately carried the subject battery charger into the State of Oregon. 21 22

than the fact that the fire and death occurred in Oregon, there is no connection between CTE and the State. (Chen Declaration., Ex. 1).

23 24
I. 25 26 ~
f~ 6`''

POINTS AND AUTHORITIES Plaintiffs Bear the Burden of Establishing Personal Jurisdiction within the Limits of Federal Due Process.

Plaintiffs bear the burden of alleging and proving facts necessary to establish personal DEFENDANTS CTE TECH CORP.' S AND CHINA TERMINAL & ELECTRIC CORP.'S MOTION TO DISMISS FOR LACK OF PERSONAL ,IUR-IS D ICTION MALANGSLET &OHOFFMANLLLP
ON.

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888SWFIflhAvenue,aSuite900 Po rt land, OR 97204 Telephone (503) 224-3113

ER-21

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1 ? 3 4

jurisdiction over a non-resident defendant. White v. _Mac Air Cotp., 147 Or App 714, 720, 938 P2d 241 (1997). Plaintiffs must put forth specific jurisdictional facts and may not rest on conclusory allegations. Shoti-ralter v. Edv>>ards and Associates. Inc.. 112 Or App 472, 476, 831 P2d 58 (1992). In determining whether personal jurisdiction exists, the court first asks whether

5 the facts of the case or the nature of the party fit within one of the specific enumerations of 6 jurisdiction set forth under ORCP 4. If the answer is yes, the court next assesses whether the 7 exercise of personal jurisdiction over the non-resident defendant comports with federal due 8 process. See, Portland Trailer & Equipment, Inc. v. A-1 Freeman Moving & Storage, Inc., 166 9 Or App 651, 654, 5 P3d 604 (2000). Even if the facts of a case fall within the express terms of 10 ORCP 4, the exercise of personal jurisdiction must always comport with the due process

11 12 13 14 15

requirement that defendant have "minimum contacts" with Oregon. App 362, 373, 707 P2d 589 (1985). Il.

1Vike, Inc. v. Spencer, 75 Or

Plaintiffs Cannot Base Jurisdiction on ORCP 4.

Plaintitfs' lawsuit should be dismissed for lack of personal jurisdiction because they cannot establish that the facts of this case fall within the provisions of ORCP 4. Plaintiffs will

16 likely argue that personal jurisdiction is appropriate under ORCP 4A, D, or L l . However, none 17 of these provisions are applicable to the present case and, even if they were, Plaintiffs still cannot

18 prove that subjecting CTE to personal jurisdiction in the State of Oregon comports with federal 19 20 21 due process. A. There is no "general jurisdiction" under ORCP 4A(4). ORCP 4A(4) enumerates the circumstances in which a court may exercise "general"

23

1 Oregon's long-arm jurisdiction statute is found at ORCP 4L. The provision is a"catch all" and extends jurisdiction to the extent that it "is not inconsistent with the Constitution of this state or the Constitution of the United States." The statute is coextensive with the limits of due process. 24 Therefore, the scope of ORCP 4L is governed by federal constitutional case law. See, State ex 2 ~ rel Jones v. Crookham, 296 Or 73 5, 742 (1984). The federal legal standards and arguments cited below are equally applicable to an argument that personal jurisdiction is appropriate under 26 ORCP 4L. DEFENDANTS CTE TECH CORP.'S AND CHINA TERMINAL & ELECTRIC CORP.'S MOTION TO DISMISS FOR LACK OF PERSONAL
ON, ~LANGSLET&OHOFFMANLLLP

Page 4

AttomeysatLaw
888 SW Fifth Avenue, Sute 900

JURI S D I CTION

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~.

I
1 2 3 4 ~ 5 6 7 8 9 10 11 ' ~ ~ 12 13 14 15 16 17 ~ 18 19 ~ ~ 20 21 22 ORCP 4D focuses on jurisdiction for causes of action that arise out of foreign acts or ~
~ 25

personal jurisdiction over a non-resident defendant. The rule states that a non-resident detendant is subject to personal jurisdiction if the defendant "[i]s engaged in substantial and not isolated activities within the state, whether such activities are wholly interstate, intrastate, or otherwise[.]" General jurisdiction exists when a cause of action is unrelated to the defendant's contacts with the forum state, but the defendant has engaged in such continuous and systematic activities with the forum that personal jurisdiction is warranted. See, Helicopteros Nacionales de Columbia v. Hall, 466 US 408, 414 (1984). Relevant factors include whether the defendant makes sales, solicits or engages in business in the forum state, serves the state's markets, designates an agent for service of process, holds a license, or is incorporated in the forum state. Bancroft & Masters, Inc. v. Augusta Ajational, Inc., 223 F3d 1082, 1086 (9" Cir. 2000). CTE does not have any contacts with the State of Oregon, let alone contacts that can be characterized as "continuous, systematic, and substantial.'' Plaintiffs cannot establish that any of the above-listed "jurisdictional factors" are present in this case. CTE has no physical or business presence in Oregon. The company does not have offices, manufacturing plants, facilities, or employees in Oregon. (Chen Declaration, Ex. 1, 4 ; 7). Moreover, CTE is not incorporated or licensed to conduct business in Oregon, (Id at 10), and it has never solicited or transacted any business in the State. Id at 9. CTE's only purported connection to Oregon is that one of its foreign-built components found its way into the State after being put into the stream of commerce. This tenuous and isolated connection is insufficient to establish general jurisdiction in Oregon over C.TE under ORCP 4A(4). B. There is no iurisdiction for a foreiEn act causina local iniury under

ORCP 4D.
23 omissions. The rule provides for personal jurisdiction:
24

In any action claiming injury to person or property within this state arising out of an act or omission outside this state by the defendant, provided that in addition that at the time of the injury, either:

26
~

Page 5
~ ~

DEFEN DANTS CTE TECH CORP.' S AND CHINA TERMINAL & ELECTRIC CORP.'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

T M LA NGSLET 80HOFFMAN LLp

TEMPLETO N .

Atto

888SWFrfthAvenue,aSuile9C0 Telephone (503) 2240113

ER-23

~
~-

D(1) Solicitation or service activities were carried on within this state by or on behalf of the defendant; or D(2) Products, materials, or things distributed, process, serviced, or manufactured by the defendant were used or consumed within this state in the ordinary course of trade. The language of the rule requires that the Plaintiffs establish: 1) a local injury; and 2) that the defendant was enQaaed in solicitation or service activities in the State or products manufactured or distributed by the defendant were used by Oregon consumers in the ordinary course of trade. There is no appellate case law expressly defining the scope of ORCP 4D. However, it is well-established that the provision must be interpreted and applied in a manner consistent with the outer limits of federal due process. 1Vike, Inc., 75 Or App at 373. Therefore, even if Plaintiffs can establish the two elements of ORCP 4D, jurisdiction is nonetheless improper if it is based exclusively on CTE's placement ofa product into the stream of commerce that ultimately caused injury in Oregon. See, infi-a. ln such cases, the exercise of jurisdiction violates due process. Id. The Court does not even have to reach the due process analysis because Plaintiffs cannot prove the facts necessary to satisfy the second element forjurisdiction under ORCP 4D. Specifically, there is no proof that CTE solicited or engaged in business activities within the State, or that CTE's products were regularly used by Oregon consumers in the ordinary course of trade. As explained above, CTE does not transact business in Oregon. (Chen Declaration Ex. 1, 9). The company has never had any distributorship, import/export, or other sales agreement with any Oregon entities or individual consumers relating to its products. (Id at 9). CTE also does not direct any advertising material to Oregon and has never sent any sales representatives to the State. (Chen Declaration Ex. 1, 11). As such, there is no factual basis for subjecting CTE to personal jurisdiction for "solicitation and service activities" under ORCP 4A(t). Furthermore, CTE's products are not used by Oregon consumers in the ordinary course of trade. To the contrary, the evidence indicates that this is an atypical case in which CTE sold a
DEFENDANTS CTE TECH CORP.'S AND CHINA TERMINAL & ELECTRIC CORP.~S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
MARTIN, BISCHOFF. TEMPLETON. LANGSLETBHOFFMANLLP 888SWFrfthAvenue,

3
4

5 6 7 g 9 10 11 12 I 14 15 16 17 18
~

19 20 21 ~ 22 23 24 25
~

26
Page 6 ~

suite900

0 Teleph ne (503)224-3113

ER-24
~

1 2
; 4 5 6

component to an out-of-state wheelchair manufacturer who, in turn, incorporated the component into a wheelchair, which managed to find its way into Oreaon. CTE does not sell its products
directly to Oregon consumers and does not have contracts with any Oregon vendors, retailers, or distributors. Id at 6, 9. This includes both decedent and United Seating and Mobility, LLC,

' '

the alleged seller of the wheelchair. Id at 13. In fact, CTE does not even have any distributors in the United States. Id at 6. Plaintiffs cannot base jurisdiction on a single component part

v
s '
a ~ ~ t ~ ~ , ' s

7 that indirectly made its way into Oregon, especially where CTE did not direct the product to 8 Oregon or otherwise have any invrolvement in the distribution system. Id at 14. Therefore,

9 jurisdiction is improper under ORCP 4A(2). 10 III.

11 12 13
14

The Exercise of Personal Jurisdiction over CTE in the State of Orepon Violates the Due Process Repuirements of "Minimum Contacts" and "Purposeful Availment."
A.

Plaintiffs' action should also be dismissed on the basis that subjecting CTE to personal

15 jurisdiction in Oreaon violates federal due process. CTE did not target the Oregon market or 16 17 18 19 direct any aftirmative action to the State. Instead, CTE`s onlv purported connection to Oregon is that it placed a product into the steam of commerce which eventually caused injury in this forum. Under well-established Supreme Court and Ninth Circuit law, this type of passive conduct does not constitute --purposeful availment" or satisfy the federal due process requirement of

20 "minimum contacts" with the forum state. 21 22 The due process clause of the fourteenth amendment acts as a limitation upon the power of a court to exercise personal jurisdiction over a non-resident defendant. The due process clause

2; requires that a defendant have certain minimum contacts with the forum state such that 24 maintenance of the suit "does not offend traditional notions of fair play and substantial justice."

25

International Shoe Co. v. Washington, 326 US. 310. 316 (1945). The "constitutional

e ~

26 touchstone" of due process analysis is whether the defendant purposefully established minimum Page 7 DEFENDANTS CTE TECH CORP.'S AND CHINA TERMINAL & ELE.CTRIC CORP.'S MOTION TO DISMISS FOR LACK OF PERSONAL JlJ RI S D I CTI ON MALANGSLET80HOFFMAN
RTIN. L LPON,

888SWFifthAvenue, aSuite900
Telephone (503) 224-3113 0

ER-25

I
I contacts with the forum state. Burger King-Corp. v. Rudzewic_, 471 US 462, 474 (1985);

? International Shoe Co. v. Washington, Office of Unemployment, 326 US 310, 316 (1945). The
Ninth Circuit Court of Appeals has adopted the following three-part test for "specific" personal 4 jurisdiction based on minimum contacts: 1) the non-resident defendant must purposefully direct ~ ' 5 activities with the forum; 2) the claim must be one which arises out of or relates to the

6 defendant's forum activities; and 3) the eYercise of jurisdiction must comport with fair play and 7 substantial justice. See. Omulek v. Langsten Slip & Batbyggeri A/S, 52 F3d 267, 270 (9`h Cir
1995).

'

9 ' ~

The requirement of "purposeful direction" or "purposeful availment" protects non-

10 resident defendants from being hauled into court for purely "random, fortuitous or attenuated" 11 contacts over which it has no control. Burger King Corp., 471 US at 476. The Supreme Court

12 has held that purposeful availment must be based on the conduct of the defendant, and cannot 13 rest on the unilateral act of plaintiff or some other person over whom the defendant has no 14 control. World-Ghide G'olks"-agen Corp. v. Woodson, 444 US 286, 295-96 (1980); Helicoptei-os ~ 15 16 17 18 19 ~ 20 21 22 23
24 ~ 25

Nacionales de Colzrmbia, S.A., 466 US at 417. Moreover, the Supreme Court has held that the
mere foreseeability that certain non-foruin activities have the potential to cause injury within the torum is an insufficient basis tor asserting jurisdiction. World-Wide Volkstivagen Corp., 444 US at 295-96. Instead, the foreseeability critical to the due process analvsis is whether the defendant's contact with the forum state is such that the defendant should reasonably anticipate being haled into court there. Id. It is upon this framework that the Supreme Court and the Ninth Circuit Court of Appeals have rejected the notion that constitutional minimum contacts can be established by merely placing a product into the stream of commerce that causes injury within the forum. Asahi iVIetal Industry Co., LTD >>. Superior Court of California, 480 US 102, 112
(1987); see also,_ Holland America Line, Inc. v. Wartsila North America, Inc., 485 F3d 450, 459 (9"' Cir 2007).

26 ~ Page 8

Courts applying the '`stream of commerce" analysis have held that a non-resident DEFENDANT S CT E TECH CORP.'S AND CHIi~lA TERMINAL & ELECTRIC CORS MOTION TO DISMISS FOR LACK OF PERSONAL P.' JURISDICTION
MARTW,BISCHOFF,TEMPLETON, L.ANGSLET 8 HOFFMAN LLP

AuorneysatLaw
888SWFifthAvenue,SuAe900 Telephone( 03)224-3~13 0

t'

ER-26

1 2 ; 4 5 6 7

manufacturer does not become subject to personal jurisdiction simply by placing a product into the stream of commerce that causes injury in the forum state. In Asahi, the Supreme Court held that California did not have personal jurisdiction over a Japanese manufacturer of valve stems for tire tubes in an indemnity action arising out of a California personal injury action. A plurality of the Supreme Court explained that a foreign manufacturer's awareness that the stream of commerce may sweep a product into the forum state does not convert the act of placing the product into the stream of commerce into an act purposefully directed toward the forum state.

8
9 10 11 12 I3 14 15 m
a

Asahi Metal Industry Co., LTD, 480 US at 112. Instead, a party seeking to establish personal
jurisdiction must show that the non-resident defendant engaged in "something more" to satisfy the constitutional requirement of minimum contacts. Id. The Court stated that the plaintiff must prove that the defendant engaged in "additional conduct" that indicated an intent to serve the market of the forum state including, for example, designing the product for the market in the forum state, 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. Applying Asahi 's "steam of commerce" theory, the Ninth Circuit Court of Appeals and U.S. District Court of Oregon have consistently held that a foreign product manufacturer/distributor's placement of a product into the stream of commerce, without some additional affirmative act directed at the forum state, is insufticient to support personal jurisdiction. See e.g., Holland Amer - ica Line, Inc., 485 F3d at 459; Doe v. Americarr Nat'l Red

16 17 18 19 20

21
22 2;

Cross, 112 F3d 1048, 1051 (9"' Cir 1997); Omelzrk v. Langsten Slip arid Butbyggeri A/S, 52 F3d
267,271 (9` h Cir 1995); Adidas Ame1ica, Inc. v. Topline Corporation, 2009 WL 1270256 (D Or May 5, 2009); Espinoza v. Blit_, 2004 WL 2165358 (D Or Sept. 24, 2004); Sunset Fuel v.

24
25 26

Zanjani, 1997 WL 118440 (D Or February 26, 1997); See, also, Findings and Recommendations
of U.S. Magistrate Judge John Jelderks in Faber v. Bombardier, Inc., U.S. District of Oregon Case No. 04-CV 645 (2005), attached hereto as Exhibit 2 to the Declaration of Stephen P. DEFENDANTS CTE TECH CORP. ~S AND CHINA TERMINAL & ELECTRIC CORP.' S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
MARTIN, BISCHOFF, TEMPLETON.

Page 9

LANGSLET 8 HOFFMAN LLP

Attomeys al Law

888 SW Fdth Avenue, Suite 900 Telephone (503 ~ 224-9 13

ER-27

I
1 Yoshida. B. ; 4 5
CTE did Not Purposefully Direct Any Activities Towards the State of Orellon or Any of its Residents.

Plaintiffs are unable to prove that CTE targeted or otherwise purposefully directed any commercial activitv toward the State of Oregon. Instead, Plaintiffs' lone basis for asserting

6 Oregon jurisdiction appears to be that CTE manufactured a component part in Taiwan.. which, 7 after being placed into the stream of commerce, somehow found its way into this State. Such an ~ g isolated and involuntary "contact" with Oregon is constitutionally insufficient to satisfy due

9 process under Asahi and its progeny. Accordingly, Plaintiffs' action against CTE should be ~ 10 11 dismissed. As explained above, there are simply no '`jurisdictional facts" connecting CTE to this

12 State. There certainly are no facts to prove that CTE intended to serve the Oregon market. CTE has no physical presence in Oregon or the entire United States. (Chen Declaration, EY. 1 5). 14 The company is based in Taiwan with manufacturing facilities located exclusively in Taiwan and ~
Id at !( 7. 15 China. Id at 5. CTE has no offices or emplovees in the State of Oregon.

16 Additionally, CTE is not registered and does not transact business within the State and, thus, has " 17 taken no steps to avail itself of the benefits and protections of Oregon law. Id at ~ 10. Moreover,
I

18 CTE has no direct commercial relationship with the State of Oregon or any of its residents.
~

Id at

19 ~

T 9, 13. CTE does not sell its products directly to any Oregon distributors, retailers, or

20 individual consumers. Id. The company also does not market anv of its products in this State.
21 Id at !~ 11. CTE does not advertise or solicit business in Ore g on, and it has never sent a sales

~
~

22
23

representative to Oregon for the purpose of soliciting or establishing any business relationships.
Id. Finally, CTE did not tailor the battery charger in question for use or consumption in Oregon.

24 Id at 14. lnstead, the company simply sold the product to a customer who placed an order,

tY~
~

25

without any knowledge of or control over the product's ultimate destination. Id. Thus, while it

26 was theoretically possible that the product could reach Oregon, it was equally possible that it
~

Page 10 DEFENDANTS CTE TECH CORP.'S AND CHINA TERMINAL & ELECTRIC CORP.'S MOTION TO DISMISS FOR LACK OF PERSONAL
.lv RI ;7 D CTI ON
iii c

MARTIN. BISCHOFF, TEMPLETON. LANGSLETSHOFFMANLLP 888SWFifthAvenue, aSuite900 Po rt land. OR 97204 Telephone (503) 224-3113

~
jK

!,

ER-28

I
1 ? ; 4 5 6 ~ ~ an 10 11 ' ~ 12 13 14 15 16 independent companies, not CTE, determined the battery charger's ultimate end use and destination. Plaintiffs cannot establish the requisite "additional conduct or `'purposeful direction" necessary to establish due process minimum contacts. Accordingly, CTE is not subject to personal jurisdiction in the State of Oregon.
CONCLUSION

wrould ultimately be used in any other part of the world. CTE did not intend or even anticipate that the battery charger would ultimately be sold to an Oregon consumer. There is no evidence that CTE specifically targeted the Oregon market. Therefore, the exercise of personal jurisdiction in this case is based on nothing more than CTE's passive conduct in placing the battery charger into the stream of commerce by selling it to Co-Defendant Invacare Corporation outside of the State of Oregon. The battery charger was not destined for Oregon at the time of its manufactui'e or original sale, but apparently reached an Oregon consumer through indirect distribution channels after passing through at least two independent companies Invacare Corporation and United Seating and Mobility, LLC. These two

7 8 9

For the foregoing reasons, Plaintiffs' action should be dismissed for lack of personal

17 ~ ~ 18 19 20 21
~ 22

?; ~ 24
25
~

26
~

Page 11

DEFENDANTS CTE TECH CORP.'S AND CHhIA TERMINAL & ELECTRIC CORP.'S MOTION T'O DISMISS FOR LACK OF PERSONAL JURISDICTION

MAR

ON. MAN~Lp ANGSLETB~ OFF

888SWFiflhAvenue, Suite900 Portland, OR 97204

Telephone (503) 224-3113

ER-29

1 jurisdiction over defendants CTE TECH CORP. and CHINA TERMINAL & ELECTRIC CORP. 2 in the State of Oregon. ~ 4 DATED: May 21, 2010. MARTIN, BISCHOFF, TEMPLETON, LANGSLET & HOFFMAN LLP

5 6
7 8 9 10

~.~A- -Cd~",tG ~` ~C~ By: No. 803680 Mary-Adne Rayburn, t, Stephen P. Yoshida, OSB No. 044588 888 S.W. Fifth Avenue, Suite 900 Portland, OR 97204 Telephone: 503-224-3113 Fax: 503-224-9471 E-Mail: mrayburn@martinbischoff.com E-Mail: syoshida@martinbischoff.com Of Attorneys for CTE TECH CORP. and CHINA TERMINAL & ELECTRIC CORP.

11
12 TRIAL ATTORNEY: Mary-Anne Rayburn, OSB 4803680

13 14 15 16 17 18 19 20 21

23 24 25 26
Page 12 DEFENDANTS CTE TECH CORP.' S AND CHINA TERMINAL & ELECTRIC CORP.'S MOTION TO DISMISS FOR LACK OF PERSONAL
J v iv.D1CTlON
~LANGSLET 80HOFFMAN ~LpON, 888 SW FRhAvenue, s ite900

Telephone (50.3) 22A-3113 0

0 ~ ~ ' ' ~ ~ ~ t 0 0 ' ' B ~

ER-30

CERTIFICATE OF SERVICE
....] ~ 3 4 5 6 7 8 9

I hereby certify that, on this date, I served the foregoing DEFENDANTS CTE TECH CORP.'S AND CHh 1A TERMINAL & ELECTRIC CORP.'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION on the following attorneys: Jeffrey A. Bowersox Bowersox Law Firm P.C. Kruse Woods I 5285 Meadows Road, Suite 320 Lake Oswego, OR 97035 Richard C. Pearce Attorney at Law 921 S.W. Washington Street, Suite 755 Portland, OR 97205 Attorneys for Plaintiffs Jay W. Beattie Lindsay Hart Neil & Weigler LLP 1300 SW Fifth Avenue, Suite 3400 Portland, OR 97201 Attorney for United Seating & Mobility Heather C. Beasley Davis Rothwell Earle et. al. 111 S. W. Fifth Avenue, Suite 2700 Portland, OR 97204 Attorneys for Defendant GA W Electric, Inc. Walter H. Sweek Cosgrave Vergeer Kester LLP 805 SW Broadway, 8 th Floor Portland, OR 97205 Attorney for Invacare Corporation, Motion Concepts, Perpetual Motion Enterprises, Ltd. Ronald J. Clark Bullivant Houser Bailey PC 888 SW Fifth Avenue, Suite 300 Portland, OR 97204 Attomeys for Defendant Pass & Seymour, Inc. Ryan McLellan Smith Freed & Eberhard PC I 11 SW Fifth Avenue, 43` d Floor Portland, OR 97204 Attomey for Defendant Summers Group, Inc.

10 11 12 13 14 15

16

17 By causing copies thereof, addressed to each attorney's last known address, and sent by the 18 following indicated method or methods: 19 m u u u by U.S. mail, first-class postage prepaid, from Portland, Oregon. by hand delivery. by overnight courier. by electronic mail. MARTIN, BISCHOFF, TEMPLETON LANGSLET & HOFFMAbl LLP, By: Marye S. Raybu ,OSB #803680 Stephen P. Yoshida, OSB 4044588 Of Attorneys for Defendants China Terminal & Electric Corp. and CTE Tech Corp.
CERTIFICATE OF SERVICE
MARTIN, BISCHOFF, TEMPLETON, LANGSLET 8 HOFFMAN LLP Attomeys at Lew 888 SW Fifth Avenue, Suite 900 Portlantl, OR 97204 Telephone (503) 224-3 i 13

20
21

DATED: May 21, 2010.

22 23 24

25 26

ER-31

~ 1

2 3
4

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH JEFFREY WILLEMSEN, as Personal Representative of the Estate of KARLENE J. WILLEMSEN and JAMES WILLEMSEN,
Plaintiffs,

5
6 7

Case No.: 0902-01653

8 9 10 11
V.

~ 12 13
14

15 16 ~ 17 18
'

I_NVACARE CORPORATION, a foreign corporation; UNITED SEATING & MOBILITY, LLC., a foreign limited liability company; CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; CTE TECH CORP., a foreign corporation; MOTION CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS & SEYMOUR, INC., a foreign corporation; SIEMENS CORPORATION, a foreign corporation:. SIEMENS INDUSTRY, INC, f/k/as Siemens Energy and Automation, Inc., a foreign corporation; SUMMERS GROUP, INC., dba REXEL, a. foreign corporation; and GAW ELECTRIC, INC., an Oregon corporation, Defendants.

DECLARATION OF STEPHEN P. YOSHIDA N SUPPORT OF DEFENDANTS CTE TECH CORP.'S AND CHINA TERMINAL & ELECTRIC CORP.'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

19

~ 20
21 ~ 22 23 24 l, Stephen P. Yoshida, hereby declare under penalty of perjury, that: 1. I am one of the attorneys for Defendants CTE TECH CORP. and CHINA

TERMINAL & ELECTRIC CORP. (hereinafter "CTE") in the above-captioned lawsuit. 2. I make this declaration upon personal knowledge and belief in support of CTE's

25 Motion to Dismiss for Lack of Personal Jurisdiction. ~ 26

~

D.

Plaintiffs' lawsuit was originally filed in Multnomah County Circuit Court on or

MARTIN, BISCHOFF. TEMPLETON,

Page 1- DECLARATION OF STEPHEN P. YOSHIDA IN SUPPORT OF DEFENDANTS CTE TECH CORP.'S AND CHINA TERMiNAL & ELECTRIC CORP.' S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

LANGSLETSHOFFMANLLP 888SWF~thAvenue, s

teeoo

Telephone 503)224113

ER-32

1 ~ I

about February 2, 2009. The Iawsuit was removed to the U.S. District Court of Oregon on or

2 about June 2, 2009. 3 4. CTE filed a motion to dismiss Plaintiffs' action for lack of personal jurisdiction

4 while the lawsuit was pending before the U.S. District C:ouz -t of Oregon. The U.S. District Court 5 did not rule on the motion, but instead, granted Plaintiffs' motion for leave to conduct 6 jurisdictional discovery. CTE recently responded to Plaintiff's request for production regarding ' 7 CTE's contacts w-ith the State of Oregon. 8 5. On or about January 28, 2010, Plaintiffs' lawsuit was remanded to Multnomah

9 County Circuit Court. ~ 10 I1 ' 12 6. Attached are true and correct copies of the following exhibits: A. Exhibit I The declaration of Peter Chen. executed June 2. 2009, filed as an exhibit in support of CTE's motion to dismiss for lack of personal jurisdiction in the U.S. District Court of Oregon. B. Exhibit 2 U.S. Magistrate Judae John Jelderks' Findings and Recommendations in the matter of Paul F Faber v. Bombardier, Inc., et crl., United States District Court for the District of Oregon, Case No. 04-CV-645. I hereby declare that the above statement is true to the best of my knowledge and belief ;

~ 13 14 15 16 17 18

1 9 and that I understand it is made for use as ev>.dence in court, and is subject to penalty for perjury.

20 21 ?? 23 ~ 24 ~ 23

DATED: May 19, 2010.

Step en P. Yoshi da

A-- OD
M LA LET& OFFM ANLLLP TNGS
Attomeys at Law
Telephone (503) 224-3113
ON. 888 SW Fifth Avenue, Suite 900 Poriland, OR 97204

26

~ Page 2- DECLARATION OF STEPHEN P. YOSHIDA IN SUPPORT OF DEFENDANTS CTE TECH CORP.'S AND CHINA TERMINAL & ELECTRIC CORP.' S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

~.i

I ~
1
~ -, ~ 4

ER-33

I I ' I
:J

5 6 7

IN THE CIRCUIT COURT OF THE STATE OF OREGON

8

FOR THE COUNTY OF MULTNOMAH

9

10 11 12
Plaintiffs. JEFFREY WTLLEMSEN, as Personal Representative of the Estate of KARLENE J. WILLEMSEN and JAMES WILLEMSEN,
Case No.: 0902-01653

13
V.

14

DECLAR.ATION OF PETER CHEN IN SUPPORT OF CTE TECH CORPORATION'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

I
t I

15 16 17 18
19 20

21 22 23

e
I ~~ ~ I

IVACARE CORPORATION, a foreign corporation, UNITED SEATING & MOBILITY, LLC, a limited liability company, WESTERN HEALTH RESOURCES, INC., dba ADVENTIST HEALTH PERSONAL CARE SERVICES. a foreign corporation, CARE MEDICAL EQUIPMENT, INC., an Oregon corporation, IKNIC MARKETING, INC., dba MK BATTERY, a foreign corporation, CHINA TERMINAL & ELECTRIC, INC., a foreign corporation, CTE CORPORATION, a foreign corporation, MOTION CONCEPTS, INC., a foreign corporation, PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation, and LESTER ELECTRICAL OF NEBRASKA, INC., a foreign corporation, Defendant.

24 25 26
I, Peter Chen, hereby declare under penalty of perjury, that: l. I have personal knowledge of the facts set forth herein. I submit this Declaration
MAP.TIN, BISCHOFF, 7EMPLETON,
LANGSLET & HOFFMAN LLP Atbmeys et Law 868 SW Fifth Averuie, Suke 900

Page 1- DECLARATION IN SUPPORT OF MOTION TO DISMISS

PoNand OR 97204
Telephane (503) 224-3113

Exf'ubft

Page

Of

~
f
~

ER-34

1 2 3
4

in support of CTE TECH CORP.'s Nlotion to Dismiss. 2. I am the 1ntefriati6nahSa1es and MarketipQ Manager for CTE TECH CORP.

("CTE"). My job duties include al1 international business. I have been employed with CTE
since 1995.

5 6 7 8 9 10 11 12 13
J

3.

CTE is a corporation formed under the laws of Taiwan. CTE was founded in

Taipei, Taiwan in 1974. China Terminal & Electric Corp. is a prior business name of CTE TECH CORP. Since its formation in 1974, CTE has always been headquartered in Taiwan. 4. CTE's principal place of business is located atNo. 1-7, Gongjian Road, Cidu

District, Keelung 20647, Taiwan. 5. CTE has manufacturina plants in Taiwan and China. CTE does not have any

manufacturing plants in the United States. 6. CTE is engaged in the business of manufacturina battery chargers, wire hamesses,

and meters, which are used as accessories and component parts in other products. CTE sells its products to customers who place orders with CTE. CTE has no distributors located in the State of Oregon or in the United States. 7. CTE does not have any employees, directors, or offices in the State of Oregon or

14 15 16 17 18

in the United States. 8. CTE does not have a reQistered ao-,ent for service of process in the State of Oregon
y

19 20 21 22 23 24

or in the United States. 9.

CTE does not regularly transact business in the State of Ore6on. CTE does not

sell any of its products directly to any vendors, retailers, distributors, or individual consumers in the State of Oregon, nor does CTE have any contracts with any Oregon-based vendors, retailers, distributors, or individual consumers. 10. 11. CTE is not licensed or registered to conduct business in the State of Oregon. CTE does not direct any advertising material to customers in the State of Oregon

25 26

and does not solicit any business in the State of Oregon. CTE has never sent any sales DECLARATTON IN SUPPORT OF MOTION TO DISMISS .
M

~.

1
~

Pape 2b

ARnN , BISCHOFF,IHMP1Fi0N, UWGSLE'f 8 HOFFMAN LLP

AtlQmeys at Law 868 SW Fdth Aveiwa, Suite 9W PvAlar~d, OR 97264 Telephmre (5ai) 724-31 13

Exhibit

Page-1of-3

ER-3 5

~.

1 2 3 4 5 6 7 8
9

representatives to the State of Oregon for the purpose of soliciting business. 12. CTE is aware that a lawsuit has been filed in the State of Oregon by Jeffrey

Willemsen, as personal representative for Karlene J. WiIlemsen ("decedent"), based on alleged defects in a power assisted wheetchair manufactured by Invacare Corporation and sold by United Seating and Mobility, LLC, which allegedly used or incorporated a battery charger manufactured by CTE ("subject lawsuit"). 13. CTE has no commercial relationship with United Seating and Mobility, LLC. and

did not sell the battery charger at issue to United Seating and Mobility, LLC, or directly to the
decedent.

10 11 12

14:

CTE-is without knowledae as to how the subject battery charger eventually

reached decedent's possession. CTE did not desip, control, or have any involvement in the system of distribution that ultimately carried the subject battery charger into the State of Oregon.

13
14 1:5 1 hereby declare that the above statement is true to the best of my knowledge and belief. and that I understand it is made for use as evidence in court, and is subject to penalty for perjury.

16
17

18

~ .i.

Peter Clien

19 20 21 22 23 24 25

~ ~ '~i7

~w.~ / ~'

26
~ Pa-e 3L^ DECLARATION IN SUPPORT OF MOTION TO DISh II SS
(503)

MARTIN,BISCHOff,TEMPLETON, LANGSLE7 & SiOFFMAN LLP

Attomeys et lew 888 SW Fdth Averwe, Su3e 900

Putlarid, OR 97204
Teleptrolle 224-3113

I ~

Exhibit I Page 3 of-a

ER 36
~

Case 3:09-cv-006v,--5T l

3/08/2vu9 Page 3 of 17

'

'

IN T1JE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

;

0 ' 1> e

PAUL L FABER, Plaintif~

V.

)
}

Civil No. 04-CV 645-JE FINDINGS AND RECOMMENDATION

) )
) )

BOMBARDIER, INC., et al, Dafendants.

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Mark McCulloch Walter Weiss, Jr. Powers, McCulloch & Bennett, L7,P 3000 Wells Fargo Center 1300 S.W. Fifth Avenue Portland; OR 97201 Attomeys for Plaintiff Jonathan M. Hoffman Aaron C. Dentan Mar6n, Bischofi; Templeton, L,anWlct & Hoffnan, LLP 888 S.W. Fifth Avenue, Suite 900 Portland, OR 97.204 Attomeys for Defendants Bombardier 1 - FINDINGS AND RECOMAAENDATION

Exhibit _

Page,~:vf1~.

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Case 3:09-cv-006t,,--ST

ER-37
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06/0812uj9

Page 4 of 17

Jeanne F. Lo$is Nicole R. Commissiong Builivant Housea Bailey P.C. 888 S.W. Fifth Avenue, Suite 300 Portland, OR 97204-2089 Attorneys for Defendants Dow Chemical Canada, lnc., Union Carbide Canada, Inc., and Wedco Moalded Products JEL.DERKS, Magistrate Judge: Plaintiff Paul L. Faber brings this action alleging products liability, negligence and reckiessness against defendants Bombardier, Inc., Bombardier Motor Corporation of America, Inc. (now lnown as BRP US Inc.),' B,ombardier Recreational Products, Inc. ~ (collectively, "the Bombardier defendants'% Union Carbide Canada, Inc.; Wedco Moulded Products, an unincorporated division of Union Carbide Canada, Inc.; and Dow Chenucal ~ Canada; Inc. The Bombardier defendants bring a omss-claim for indemnity or contribution against Union Carbide Canada, Inc. and Wedoo Moulded Products. Defiendant Dow Chemical Canada, lnc. (DCCI), on its behalf and on behalf of defendants Union Cazbids Canada, Inc. (UCCl) and Wedco Moulded Products, moves to dismiss plaintaffs claim, for lack of personal jurisdiction. Defendant DCCI, on behalf of defendants UCCI and Wedco Moulded Products, also ~ moves to dismiss defendant Bombardier's cross-claim for ladc of personaI jtuisdiction or, in the alternative, for forum non corrveniens.

'Defendant Bombardier Motor Corporation of America, lnc. notes that it is incorrectly captioned as "Bombardier Motor Corporation, Inc." 2 - F3NDINGS AND RECOMMENDATION

Ex,ibit

Page 2 Of~
-

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Case 3:09-cv-006u,--ST

ER-38

)6108l2uJ9 Page 5 of 17

I recommend granting the motions to dismiss plainti$'s claims and defendant Bombardierls cross-claim for lack of jurisdiction. I recomanend denying the motion to dismiss Bombardier's cross-ciaim for forum non conveniens as maot.

BACKGROUND2
Plaintiff Paul Faber is an Oregon resident. Plaintiff alleges that on November 11, 2002, he was injured by an exptosion that occurred while he was working on a"Sea-Doo" personal watercraft manufactured by the Bombardier defendants. Plaintiff alleges that the Sea Doo's fuel tank was defecCive and the explosion was caused by the ignition of acazmulated gas fumes from a leak in the fuel tanic neck. Defendants Bombardier, Inc., and Bombardier Recreational Products, Inc. are Canadian corporations with principal places of business in Moatreal, Canada, and Valcourt, Canada, respectively. Defendant Bombardier Motor Corporation of America, Inc., now

I I

lmown as BRP US, Inc., states in its answer that it is a Delaware corporation with its principal ptace of business in Wausau; Wisconsin.' Bombardier Motor Corporation of
;

America, Iuc., is a wholly-owned subsidiary of Bombardier, Iuc. and serves as the holding company of all subsidiaries of Bombardier, Inc. in the United States. Bombartlier, Ina states that it at one time, designed, developed and assembled a watercaaft known as "Sea-Doo," that Bombardier Recreational Products, Innc. currently

The following facts are accepted as true only for the parpose of analyzing the pending

motions.
3 Bombardier Motor Corporation of America, Inc `s corporate disclosure statement mdicztes that it is an Idaho corporation with its principal place of business in New York City, New York. 3 - FINDINGS AND RECOMMENDATION

~ I

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Case 3:09-cv-006u,--ST

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Page 6.of 17

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I

designs, develops and assembles Sea-Doo watercrafl; and that Bombardier Motor Corporation of America, Inc. was in the business of selling Sea-Doo watercraft to dealers who sold those watercraft in Oregon. Bombardier, Inc. acknowledges that in or about 1995, it manufactured, and a Bombardier entity sold, the Sea-Doo that atlegedly injured plaintiff. Defendant Union Carbide Canada, Inc. (UCCI) was a wholly owned subsidiary of the Union Carbide Canada Corporation (UCC) until UCC was acqnired by The Dow Chemical

I I
~

Compauy, Inc. m February 2001. As a result of this acquisition, UCC became a whollyowned subsidiary of The Dow Chemical Company, Inc. In October 2041, UCCI was combined with Dow Chemical Canada, Ina and the resulting entity is lmown as Dow Chemical Canada, Inc. (DCCI). Before 1998, UCCI owned an unincorporated division known as Wedco Moulded Products ('9Vedco). Wedco specialized in injection molding and manufactured fuei tanks and fuel tank filler necks for personal watereraft. UCCI sold its Wedco division in 1998. Plaintiff alleges that Wedco manufactured and supplied to the Bombardier Corupanies a fuel tank which caused the explosion descn'bed in plaintiffs complaint. Defendant DCCI asserts that defendant Bombardier 4 provided Wedco with all of the designs and speci.fications for the fuel tanks and fued tank filler necks, and that the purc6ase

order agreements for these componenfs were negotiated in Canada. DCCI also states that the relevant fuel tanks and fuel tanlc filler necks were manufadured by Wedco in Canada, sold to

Bombardier in Canada and delivered to Bombardier in Canada at its Quebec, Canada plant
Both Plaintiff and defendant Dow Chemical Canada, Inc. refer to the three defendant Bombardier Corporations collectively as Bombardier. 4 - FINDINGS AND RECOMIVLENDATION

~ ; ~

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DCCI asserts that neither it nor UCCI nor Wedco has ever manufactured any products

I I I I
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in Oregon, enTployed any wodcers in Oregon or owned or maintained any facilities in Oregon. DCCI also asserts that neither UCCI nor Wedco has ever sold or advertised for sale any peisonal watercraft tanks or fuel tank filler necks in Oregon. Plaintiff contends that when DCCI, UCCI and Wedco eatered 'mto their contract with Bombardier they were aware that their fael tanks would be installed in Sea-Doo watercraft sold throughout the United States. Plaintiff also contends that, pursuant to this contract, Union Carbide was required to provide fuel tamks that complied with United States Coast Guard standazds. For simplification puiposes, defendants DCCI, UCCI and Wedco will hereinafter be referred to collectively as Union Carbide." Defendants/cross-claimants Bombardier, hic., Bombardier Recreational Products, Inc. and Bombardier Motor Corpoiation ofAmerica, Inc. will hereinai3er be referred to collectively as 'Bombardier." CLAIMS Plainiiff brings six claims. Plaintiffls first, third and fifth claims against Bombardier allege staict products liability, negligence and recklessness, respectively. PlaintifPs second, fourth and sixth claims against Union Carbide allege strict products

I I I

liability, negligence and recklessness, respectively. Bombardier asserts a number of affirmative defenses and brings a cross-claim against Union Carbide Canada, Inc. and Wedco Moulded Prodncts for indenuiity or contnbution.

5 - FINDINGS AND RBCOMMENllATION

Exhibi# t'age-Y-OUA
~ -

Case 3:09-cv-006u4-ST

ER- 41

6/0812609 Page 8 of 17

STANDARDS FOR EVALUATING MOTIONS TO DiSMISS FOR LACK OF JURISDICTION A plaintiff bears the burden of establishing jurisdiction. Forsvtbe v. Overmyer, 576 F.2d 779, 781(9 s Cir.), cert. denie 439 U.S. 864 (1978). Where, as here, the court

considers a motion to dismiss for lack of jurisdiction without conducting an evidentiary hearing, the plaintiff is required only to make a prfma facfe showing of jurisdictional facts vm order to withstand the motion. Ballard v. Savaee, 65 F.3d 1495, 1498 (9O Cir. 1995). This means that plaintiff must only demonstrate facts that, if trae, would support jurisdiction. Id. In determining whether it may exert jurisdiction over a nonconsentmg out-of-state defendant, a federal court must consider whether the forum state's long-arm statute permits the assertion of jurisdiction and whether the asserfion of jurisdiction violates the defendant's federal ~ constitutional due process rights. See Fireman's Fund Ins. Co. v. National Bank of

Co2RLratives. 143 F.3d-888, 893 (9" Cir. 1996). Under Or. R. Civ. P. 4 L, Oregon wurts
may assert jurisdiction to the limits allowed by the Oregon and United States Constitutions. The question here is therefore wbether the assertion of jurisdiction over defendants comports with federal due process requirements. See Pacific Atlantic Tradine Co. v. M!V Main

Express. 758 F.2d 1325, 1327 (9' h Cir. 1985).

The due process clause of the United Staies Constitution protects persons from being subject to the binding.judgments of a fornm with whicb they bave established no meaningfW contacts, ties, or relations. Burger King Corp. v. Rudzewicz~ 471 U.S. 462, 471-72 (1985) citin International Shoe Co. v. Washing+ 326 U.S. 310, 319 (1945)). Jurisdiction is t on proper only where a defendant's conduct and connection with the forum state are such that

6 - FIlVDINGS AND RECOMMENDATION

Exhibit Page-&Of-13
-

0 Q~1 ~

Case 3:09-cv-006t,,---ST

ER-42

06/08/2~6 -i9

Page 9 of 17

the defendant shouid reasonably anticipate being brought into court in the forum state.

I I I I I
1J
I I '

World-Wide Volkswaeen Corp. v. Woodson

444 U.S. 286, 297 (1980).

DISCiJSSION L Union Carbide's motions to disrniss nlaintifl;'s-cizims and defendant Bombardier's crossclaim for lack of jurisdiction

Personal jurisdiction may be either "general" or "specific." Sher v. Johnson. 911 F.2d 1357, 1361 (9th Cir. 1990). General jurisdiction exists when a nonresident defendant's contacts with the forum state are substantial or continuous and systematic. Id. The factors courts consider in determining the existence of general Nrisdiction include: whether the defendant niakes sales, solicits or engages in business in the forum state, serves the state's markets, designates an agent for service of process, holds a license, or is incorporated there. Bancrofi & Masters. Inc, v. Augusta National. Inc.. 223 . F.3d 1082, 1086 (9'h Cir. 2000). Specific personal Jurisdiction, which may exist in the absence of such substantial contacts, requires analysis of the nature and quality of a defendani's contacts with the forum state in relation to the cause of action asserted. See id. The parties agree that if Union Carbide is not subject to personal jurisdiction on
plaiutffs original claim, then this court also lacks jurisdiction over Union Carbide with respect to Bombardieris cross-claim. Plaintifr"and Bombardier do not appear, to dispute Union Carbide's argument that it is

I I ~ ~ ~ I

not subject to general jurisdiction in Oregon. I also conclude tha.t Union Carbide's contacts wYth Oregon were not sufficiently continuous, substantial or systematic to support the

7 - FIIVDIIVGS AND RECOMMENDATION EXf11b1t ---Z2- ------

page-7Of 13

Case 3:09-cv-0066,--ST

ER-43

)6/08/2t,u9 Page 10 of 17

assertion of general Juiisdiction. The issue is tberefore whether this court has "specific" jurisdiction. The court may exercise "specific" jurisdiction over a non-consenting nonresident defendant only when certain "minimum contacts" exist between the defendant and the forum state. World-Wide V 444 U.S. at 291. The Ninth Circuit has concluded that the

min.irnum contacts requirement is met when: 1) the defendant performs some act by which it purposefuLly avails itself of the privilege of conducting activities in the forum; 2) the claim arises out of or results from the defendant's forum-related activities; and 3) the exercise of jurisdiction is reasonable. BallarcL 65 F.3d at 1498. The fr<st prong of specific jurisdiction analysis examines whether the defendant has "purposefu7ly availed" itsetf of the privilege of conducting activities in the fornun- Id. ~ Purposeful avaihnent requires that the defendant engage in some form of affirmative conduct aliowing or promoting the transaction of business within the forum state. Decker Coal Co. v.
Commonwealth Edison Co._ 805 F.2d 834, 840 (9 d Cir.1986).

In products liability cases involving a non-resident product manufactorer or distributor, a"stream of commerce" analysis is used to determine whether the purposeful avaiiment prong of specific jurisdiction is satised. See uenerally, World-Wide Volkswagen,
444 U.S. 286. Under the standards set out in World-Wide Volkswa a state's exercise of

personal jurisdiction over a non-resident manufacturer may comport with the requirements of due process if the defendant "delivers iis products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state." Id. at 298. The World-Wide Volkswag,en Court concluded that it is not unreasonable to subject a

manufacturer to suit in the forum state "if the sale of a product ... arises from the efforts of 8 - FINDINGS AND 1ZECOMMENDATION
t

Exhibit--R~

Page

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I ~ ~
I

Case 3:09-cv-00664-ST

ER-44

i6108/2c,v9 Page 11 of 17

the manufacturer or distributor to serve direct.ly or indirectly, the market for its product in other states." Id. at 297. However, "the mere'unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the fonnn State."' Id. at 298, quotina Hanson v. Denckla 357 U.S. 235,253 (1958). In Asahi Metal Industrv Co.. Ltd. v. Superior Court of California_ Solano C 480 U.S.

102 (1987), the Sulmme Court attempted to clarify the conduct and contacts needed to

I I

establish jurisdiction based upon the presence of a defendant's products in the fonnn. However, the Justices were unable to prodnce a n*ority opfnion as to the leveI of contact necessary to support jiuisdiction, and instead issued three separate opinions analyzing how "pwposeful availment" could be demonstrated in the "stream of conunerce" comext. See
generallv,

id.

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A four justice plurality led by Justice Brennan concluded that courts may assert jurisdiction over any manufacturer or retailer wliich places its prodnct in the stream of commerce and is rrware that its product may be sold in the foram state. Id at 116-17. Justice O'Connor, joined by Chief Justice Rehnqnist and Justices Powell and Scalia, interpreted
World-Wide VolkswaQen

as requiring an additional showing of some affirmative act by the

defendant pinposefully directed at the forum state. Id, at 112. Justice Stevens agreed that the
exercise of jmisdiction over the defendants in Asahi would offend notions of fair play and substantial justice, but specificaIly disagreed with both Justice O'Connor's and Justice Brennan's analysis of the minimum contacts issue. Id. at 121-22. Asahi has left the law of personal jurisdfction in product liabiiity suits unsettled and circuit courts have subsequently used varied approaches in applying stream of comrnerce analysis. Compare. e.g_, Barone v. Rich Brothers Interstate Display F'ireworks Comnany,

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9 - FINDINGS AND RBCOMMENDATTON

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Case 3:09-cv-00604-ST

ER-45

06/08/2t,v9 Page 12 of 17

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25 F.3d 610, 613-15 (8` Cir. 1994) (adopting a position consistent with that of Justice Brennan) and Ruston Gas Turbines, Inc. v. Donaldson C 9 F.3d 415, 420 (5`" Cir.

1993) (same) with Boit v. Gar-Tec Products. lnc.. 967 F.2d 671, 683 (Ist Cir. 1992) (adopting a position consistent with that of Justice O'Connor). A number of circuits have not explicitly seiected either standard but instead have decided cases based on the particular facts presented. See, e_.g., Tobin v. Astra Pharmaceutical Products, Inc., 993 F.2d 528, 543 (6 m Cir. 1993); Vermeulen v. Renault. U.S.A., Inc., 985 F.2d 1534, 1548 (1 I' Cir. 1993); Pennzoil Produets Co. v. Colelli & Ass'n.. 149 F.3d 197 (3rd Cir. 1998). Plaintiffcites Hedrick v. Datico Shoji Co., Ltd., 715 F.2d 1355, 1358 (9'b Cir. 1983) for the proposition ffiat, in this circuit, a marnufacturer or supplier of a defective product who knew or should have lmown that its product would enter the stmam of commerce can be subjected to jurisdiction in the fornm where an injury allegedly caused by that product occurred. However, Hedrick is of limited relevance because it is a pre-~ah' decision, and

subsequent decisions of the N'~nth Circuit and of this District have questioned its continued validity and have placed greater importance on a defendant's affirmative conduct in comiection with the fonun state. Although the Ninth Circuit has not specifically adopted the position taken by either Justice O'Cormor or Justice Brennan in Asabi case law indicates that this
circuit will not find the.purpoaeful availment requirement satisfzed opless a defendant has

N I ~ ~J
~

taken an affirmative step beyond merely placing its product in the stream of commerce with an awareness that it may be sold in the forum state. See generally, Doe v. American Nat'1 Red Cross, 112 F.3d 1048 (9" Cir. 1997); On2eluk v. Lan g t~Iip and Batbyggeri A/S, 52 F. 3d s 267 (91 Cir. 1995); Espinoza v. Bitz, 20041NL 2165358 (D. Or. 2004); Sunset Fuel v. Zanjani. 1997 WL. 118440 (D. Or. 1997).

10 - FITTDINGS AND RECOM1v1ENDATION

Exhibif

Page 1 0 of

13

Case 3:09 __006G z _ST cv

ER-46

-- 6 08/20~9 Pa e g of 17 13 D/

i~

T7vs emphasis on "affiunative conduct" is consistent with Worid-Wide Volkswaeen, 444 U.S. 286 and Burg:er K.ine. 471 U.S. 462, significant pre-Asahi decisions that were not invalidated by Asahi. The Bureer Kin Court emphasized that a defendant could "not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts. ..." but instead could only be subjectEd to a court's jurisdiction as a result of "actions by the defendan.t hfmselfthat create a'substantial connection' with the foram state." Burg_er King, 471 U.S. at 475 (oitations and intemal4uotations ornitted). Similarly, in its anatysis ofwhen placing a product in the "stream ofcommerce" could give rise to jurisdiction, World-Wide Voikswagen instructs that the foreseeability that is critical to due process analysis is that "the defendant's corrduct and connection with the forum
State

are such that he shotild reasonably anticipate being haled iato court there." World-Wide 444 U_S. at 297 (emphasis added). T'he Court added that defendants must be

Volkswa

allowed "to sbructure their primary conduct with some mumimum assurance as to where that conduct will and will not render them iiable to suit." Id. To briefly summarize, a thorough review of the relevant pre- and post-Asahi decisions from this and other circuits confirms that there is considerable uncertai.nty as to precisely wbat conduct on the patt of a non-resident defendant manufacturer will support jurisdiction. However, I am satisfied that, at least in this circuit, jurisdiction requires more than merely placing a product in the "stream of commerce" with an awareness that it may be sold in the forum state. I conclude that a court may properiy assett jurisdiction only if the defendant targets the marlcet in the forum state through some giBater affrrmative conduct. The present state of "stream of canunerce" jurisprudence does not allow a court to detemaine with absolute confidence when an out-of-state component mamdacturer may be 11 - FINDINGS AND RECOMIVENDATION

E)dtibif

Page o#il ~.

F Case 3:09-cv-00604'- ST
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ER-47

)6/08/2(jv9

Page 14 of 17

subject to jurisdiction in a particular forum. However, I am confident that, in the present action, Union Carbide's contacts with Oregon are insufficient to demonstrate the"purposeftil availment" necessary to support jurisdiction. Plaintiff does not dispute Union Carbide's assertion that UCCI and Wedco have not rnanufactured any products, hired any emptoyees, conducted any business operations, or maintained any offices or other facilities in Oregon. Plaintiff also does not dispute Union Carbide's assertion that UCCI and Wedco have never sold or advertised for sale any products, including any personal watercra$ tanks or fuel tank filler necks, in Oregon. T'he reeord also contains no indication that Union Carbide established channels for providing regular advice to customers in Oregon. The fnel tank and fuel tank filIer neck at issue here were manufactured by Union Carbide's subsidiary, Wedco, in Canada and were sold and delivered to Bombardier in Canada. Plainti~$'asserts that Bombardier toid Union Cazbide representatives that personal ' J watercraft containing Union Carbide's fael tanks would be sold across the United States. Plaintiff aLso asserts that, pursuant to the contract between Union Carbide and Bombardier, Union Carbide was required to produce a fuel tank that met United States Coast Civard standards. Accepting these assertions as trne establishes, at most, that Union Carbide was aware that the components it was manufacturing may be incorporated into a Bombardier product that may be sold in one or a munber of states in the United States. Tius awareness is not enough to satisfy the purposeful availment prong of the minimum contacts test. Plaintiff has failed to demonstrate that Union Carbide's activities satisfy the purposeful availment" prong of the test for speciffic jurisdiction, and, therefore, bas not shown ihat Union Carbide has suffccient minimum contacts with Oregon to sapport jurisdiction in this forum.

12 - PTNDIIVGS AND RECONIMEENDATION

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Case 3:09-cv-006U /- -ST

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06/08/2 0 u9 Pa e 15 of 17

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MY conclusion that Union Carbide did not Fmposefnll avail itself of the vile of Y pn ~ conducting activities in Oregon makes it unnecessary to anaiyLe whether the other requirements for-asserting jirrisdiction are satisfied. IL Union Carbide's alternative motion to dismiss defendant Bombardier's crm-claim on
grounds offorum non conveniens

In light of my conclusion that this court lacks personal jurisdiction over Union Carbide, I recommend that Union Carbide's motion to dismiss Bombardier's cross-claim for forum non
~a

convenfens be denied as moot.

CONCLUSION The Union Carbide defendants' motions to discniss plaintiffs clainis (#35) and defendant Bombardier's cross-claim against it (#26-1) for lack of jurisdiction sbould be GRANTED. The Union Carbide defendants' alternative motion to dismiss defendant Bombardier's cross-claim forforum non corrveniens (#26-2) should be DENIID as moot.

I I I I I ~J

SCHEDULING ORDER The above Findings and Recommendation are referred to a United States District Judge for review. Objections, if any, aredue August 16, 2005: If no objections are filed, review of the Findings and Recommendation will go under advisernent on that date. A party niay respond to anotEier pari}~s objections withum I0 days after service of a
copy of the objection. If objections are.filed, review of the Findings and Recomtnendation

wili go under advisement upon receipt of the response, or the latest date for filing a response. DATED this 29i day of JuIy, 2005.

/s/ John Jelderks

John Jelderks
U.S. Magistiate Judge l 3- FIND3NGS AND~ RECOMIVIENDATION

Page~Of 13

ER-49

CERTIFICATE OF SERVICE ? I hereby certify that, on this date, I served the foregoing DECLARATION OF STEPHEN P. YOSHIDA 1N SUPPORT OF DEFENDANTS CTE TECH CORP.' S AND CHINA ' TERMINAL & ELECTRIC CORP.'S MOTION TO DISMISS FOR LACK OF PE.RSONAL JU RISDICTION on the followinaattornevs:
`" ,

5 6 7 8 9 10 11 12

Jeffrey A. Bowersox Bowersox Law Firm P.C. Kruse Woods I 5285 Meadows Road, Suite 320 Lake Oswego, OR 970>5 Richard C. Pearce Attorney at Law 921 S.W. Washington Street, Suite 755 Portland, OR 97205 Attorneys for Plaintiffs Jay W. Beattie Lindsay Hart Neil & Weigler LLP 1300 SW Fifth Avenue, Suite 3400 Portland, OR 97201 Attorney for United Seating & Mobility Heather C. Beasley Davis Rothwell Earle et. al. I 11 S.W. Fifth Avenue, Suite 2700 Portland.OR 97204 Attorneys for Defendant GAW Electric, Inc.

Walter H. Sweek Cosgrave Vergeer Kester LLP 805 SW Broadway, 8`h Floor Portland, OR 97205 Attorney for Invacare Corporation, Motion Concepts, Perpetual Motion Enterprises, Ltd. Ronald J. Clark Bullivant Houser Bailey PC 888 SW Fifth Avenue, Suite 300 Portland, OR 97204 Attorneys for Defendant Pass & Seymour, Inc. Ryan McLellan Smith Freed & Eberhard PC 111 SW Fifth Avenue, 43` d Floor Portland, OR 97204 Attorney for Defendant Summers Group, Inc.

14 15 16 17

18 By causing copies thereof, addressed to each attorney's last known address, and sent by the 19 tollow-ing indicated method or methods:
20 21 22 u u u by U.S. mail, first-class postage prepaid, from Portland, Oregon. by hand delivery. by overnight courier. by electronic mail.
~~~

DATED: May

; 2010.

23 ,
~4

MARTIN, BISCHOFF, TEMPLETON LANGSLET & HOFFMAN LLP~,

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By: ~ l~ CtZI~

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SB #803680 Mary-A e S. Raybu Stephen P. Yoshida, OSB 044 88 Of Attorneys for Defendants China Terminal & Electric Corp. and CTE Tech

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Corp.
CERTiFICATE OF SERVICE
" . ' MARTIN, BISCHOFF. TEMPLETON.

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LANGSLET8HOFFNtANLLP

Attorneys at Law 888 SW Fifth Avenue. Sude 900 Portland, OR 97204

Telephone(503)224-3113

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&MyFax - i3owersox Law Firm, P.C. To:Mary Af - ayb

ER-50

,45 071o81~IT-04 Pg 03-100

I
1 2 3 4 5 6 7 8 9 JEF'FREY WILd.EMSEN, as Personal tative of the Estate of KARI.ENE J. RW~ . MSEN and JAMES WILLEMSEN,
Plaintiffs,

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COt3NTY OF IvIULTNOMAH Case No. 0902-01653

V. 10 11 12 13 14 15 16 17 18 19
?.0 INVACARE CORPORATION, a foreign corgoration; UNTTED SEATING & MOBILdTY, LLC., a foreign limited liability company; CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; CTE TECH CORP., a foreign coiporation; MOTION CONCEPTS, INC., a foreign corporation; PF.RPETUAL MOTION ENTBRPRISES, LTD, a foreign corporation; PASS & SEYMOUR, INC., a foreign corporation; SYEMENS CORPORATION, a foreign corporation; SIE141ENS INDUSTRY, INC, f/k/as Siemens Energy and Automation, Inc., a foreign corporation; StAvIMERS GROUP, INC., dba RFxEL, a foreign corporation; and GAW ELBCTRIC, INC. an Oregon Corporation, Defendants.

PLAINTIFFS' OPPOSIfION TO DEFENDANTS CTE TECH CORP.'S AND CHINA TIIZMINAL & EIECTRIC CORP.'S MOTION TO DISM7SS FOR LACK OF PERSONAL JURISDICTION

ORAL ARGUIv1ENT REQUESTED

21 22 23
24

BRIEF BACKGROLIND Defendant CTE Tech Corp and China Terminal8t Electric Corp. (collectively herein "CTE") is a Chinese manufacwrer of the battery charger used in the FDA approved electnic wheelchair used by Karlene Willemsen prior to her death. Plaintiffs have filed product liability, negligence and unlawful trade practice act ("UTPA') claims against CTB following a fire at Ms. Willemsen's horne

25 26 27 28
11,1

that ignited her bed and burned her alive while she was unable to escape from the hospital bed in her bedroom. Page 1- PLAIIVTIFFS' OPPOSTTION TO DEFENDANTS CTE TECH CORP.'S AND CHINA TERMINAL & ELECTRIC CORP.'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION ~ `""'~'`"~` S78s PAeedoas RwA. Suiae 331
on mms
(~31 a7a78ta

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m: MyFax - Bowersox Law Firm, P.C. To:Mary A(-)a

ER - 51

19:45 071081~ ~T-04 Pg 04-100

1 2

INTRODUCTION: CTE'S MOTION: SIEiOULD BE DENIED UR DECISYON STAYED WHII.E DISCOVERY IS CONDUCTED
CTE has moved to dismiss plaintiffs' claim.s against it for lack of personal jurisdiction.

I I I I

3 4

CTE's motion should be denied for the reasons discussed below, or, in the alternative, the court's
5

I decision regarding C"TE's motion should be held in abeyance and CTE should be compelled to

61 7 8I
motion should be evaluated in light of plaintiffs' proposed third amended complaint, which is the respond to discovery solely on the issue of personal jurisdiction. CTE must produce documents pursuant to ORCP 43 and the organization must be deposed pursuant to ORCP 39 C(6). CTE's

9~
subject of plaintiffs' amended motion for leave to file third amended complaint. A copy of
10'

m
I I

plaintiffs' proposed third amended complaint is attached as Fxhibit 1 to the Declaration of Jeffrey

11
A. Bowersox accompanying this memorandum in opposition. Plaintiffs' allegation.s against CTE

12
that are relevant for purposes of deciding the motion to dismiss for lack of personal jurisdiction have

13
been highlighted. 1

14
STANDARD FOR COUItT'S DETERNffiVATION OF THE MOTION

15
Plaintiffs have the burden of alleging and proving facts sufficient to establish personal

I
I ~ I I I I

16 17 18
pleadings and the evidence, including affidavits, that the parties present to the trial court. ORCP 21 jurisdiction. Nike USA, Inc. v. Pro Sports Wear, Inc., 208 Or. App. 531 at 533,145 P.3d 321 at 322 (2006). The record on defendants' motion to dismiss for lack of personal jurisdiction consists of the

19
A; Nike USA, Inc., 208 Or. App. at 533,145 P.3d at 322. The pleadings and affidavits are liberally

20
construed in favor of finding jurisdiction. Nfke USA, Inc., 208 Or. App. at 536, 145 P.3d at 324.

21
The trial court makes factual fndings and once the jurisdictional fads are established, the

22 23 !i 24 II 25 I 26
'The service copy directed CTE's counsel has been identically highlighted as the eourt's copy. 27 Other counsel: Note that paragraphs 1-4,11-13, 20, 25-31 and 35-40 have been highlighted. 28

determination of personal jurisdiction is a matter of law. Id. "Jurisdiction of Oregon courts in most civil cases is governed by ORCP 4. In determining whether an Oregon court has juri.sdiction over an out-of-state defendant in a case like the present

Page 2- PLAINTIFFS' OPPOSITION TO DEFENDANTS CTE TECH CORP.'S AND CHINA TfiRMIlVAL 8 ELECTRIC CORP.'S Iv10TION TO DISMISS FOR LACK OF PERSONAL JURISDICTION s ~a,'", ;e,~;m
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one, this couR looks to the provisions of ORCP 4" State ex rel. Circus Circus Reno, lnc. v. Pope,
2 3 4

11 317 Or.151 at 153, 854 P.2d 461 at 462 (1993). OREGON STATUES AND CASE LAW ARE DEFINITIVE AND CONTROL THE DECISION IN TffiS CASE Oregon's long-arm jurisdiction statute (ORCP 4) provides:

5 6

"Personal jurisdiction. A.court of this state having jurisdiction ofthe subject matter has jurisdiction over a party served in an action parsuant to Rule 7 under any of the following circaunstances:
{.* * * *

7
8 9

10 11 12
13'

"D Local injury; foreign ac.t. In any action clainiing injury to person or property witbin this state arssing out of an act or oniission outside this state by the defendant, provided-in addition tliat at the time of the injtxry, either: "D(1) Solicitation or service activities were carried on within this state by or on behalf of the defendant; or "D(2)Products, materials, or things distributed, processed, serviced, or manufactured by the defendant were used or consumed within this state in the ordinary course of .trade.
* * *

14 15 16 17 18 19

"L Other actions. Notwithstanding a failure to satisfy'tlie requirement of sections B through K of this rule, in any action where prosecution of the action against a defendan2 in this state is not inconsistent with the Constitution of this state or the Constitution of the United States.". Oregon's long-arm jurisdiction statute reaches to the extent constitutionally permissible.

Additionally, and importantly, ORCP 4 D(2) specifically legislates the personal jurisdiction over CTE under the facts of this case. Two Oregon Supreme Court decisions and two Oregon Court of Appeals decision are relevant to our discussion. Tney are State ex reL Circus Circus Reno, lnc. v. Pope, 317 Or.151, 854

20 P.2d 461 (1993), State ex rel. Hydraulic Servoconrrols Corp. v. Dale, 294 Or. 381, 657 P.2d 211 21 (1982), Nike USA, Inc. v. Pro Sports Wear, Inc., 208 Or. App. 531, 145 P.3d 321 (2006), and
22 23 24

Shamrock Bldg. Materials v_ Overseas Building Supply, 76 P.3d 127, 189 Or. App. 302 (2003).

These cases will be discussed below.

In addressing personal jurisdiction, the Oregon Supreme Court stated: - "We previously have held that in applying jurisdictional statutes to non-residents 'two yuestions are presented: (1) Does the case fall within the tenms of [a jurisdictional statut.e]? -If so, (2) Does due process permit an Oregon court, as a matter of constitutional law, t.o obtain and exercise personal jurisdiction over tbe defcndant in sucli a casie?' * * * .

25 26 27 28

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"Subsections B through K of Rule 4 may appear to be redundant in view of the subsection L catch-all provision, but they are not superfluous. Based as they are on facts which the United States Supreme Court has held to be adequate bases for jurisdiction, these more specific provisions serve to narrow the inquiry so that if a case falls within one of them, there is no need to litigate more involved issues of due process. Once a plaintiff all eges facts bringin g his or her case within a specific provision, that ordinarily would be the end of the matter.' State ex rel. Hydraulic

I I I I I I ,

Servocontrols Corp. v. Dale, 294 Or. 381 at 384-385, 657 P.2d 211 at 212-213

(1982) (intensal citations omitted). See also State ex rel. Circus Circus Reno, Inc, v. Pope, 317 Or. 151 at 156, 854 P.2d 461 at 463 (1993) (`~vhere the plaintiff alleges facts brininghis orher case within a specific provision of ORCP 4 B through K jurisdiction will be found; lacking such facts, court will consider application of ORCP 4 L") (citing Hydraulic Servocontrols, supra).

Circus Circus and Hydraulic Servoeontrols were mandamus proceedings:

Servocantrols

Hydraulic

is very much factually on point with the case at Bar. Hydraulic Servocontrols

Corporation ("Hydraulic'D is a New York corporation which manufactured a device called a"servo actuator" that was incorporated into an engine manufactured by Garrett Corporation, which engine was incorporated into a Cessna airplane purchased in Oregon from Cessna and Western Skyways. Shortly after being putchased, the plane crashed and a products liability lawsuit was filed against various defendants, including Hydraulic. Hydraulic challengcd personal jurisdiction in Oregon
17 18 19 20 21
2.2

becausz: (1) the aircraft crashed in Califomia; and (2) Hydraulic does no business in Oregon and had no local presenee or status in Oregon. Hydraulic's motion to dismiss was accompanied by an affidavit stating that "Hydraulic's only place of business is in New York, that it has no offices in Oregon and that it does no business with anyone in Oregon. The affidavit also indicates that Hydraulie delivered the servo actuator to AiResearch Manufacturing Company, a division of Garrett, with the knowledge that Garrett would incorporate it into the engine of a Cessna aircraft" Hydraulec
Servocontrols,

I
I I

23
24

294 Or. at 383, 657 P.2d at 212.

The Oregan Supreme Court framed the question as follows: "The issue is whether, by placin g its product into the stream of American commerce so that it reaches consumers in Otegon by means of the conunercial distribution of othets, Hydraulic has sufficient contac.t with Oregon that exercise of jurisdietion is
lawful when an Oregon resident is damaged by defects in that product. We hold that it is." Hydraulic Servocontrols, 294 Or. at 384-385, 657 P.2d at 212. Page 4- PLAINTIFFS' OPPOSPTION TO DEFENDANTS CTE TECH CORP.'S AND CHINA TERMINAL & Fg.ECTRIC CORP.'S N10TION TO DISMISS FOR LACK OF PERSONAL JURISDICTION s ~ `'" ~`;;o ,w~
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Hydraulic Servocontrots examined Oregon's jurisdictional statutes and case law as well as United States Supreme Court decisions relevant to the basis for jurisdictiori by Oregon over Hydraulic. The court in Hydraulic Servocontrols reached its decision based on ORCP 4 L and its analysis of Oregon and U.S. Supreme Court jurisprudence on the issue of Due Process in exercising personal jurisdiction over Hydraulic iun Oregon. In Hydraulic Servocontrols; plaintiffs did not qualify for jurisdiction over Hydraulic under

7 I ORCP 4 D because the "inj ury to person or property" occurred outside of Oregon even though the 8

purchase of the aircraft containing Hydraulic's component part occurred in Oregon. Thus the Oregon Supreme Court undertook a Due Process analysis of asserting jurisdidion over Hydraulic

11

' ' s ~ ~
B 1

10 under ORCP 4 L's "catch-all" provision. After analyzing Oregon's case law and U.S. Supreme
Court decisions relatEd to personal jurisdiction, the Oregon Supreme Court had no difficulty finding

12 that Hydraulic was subjed to personal jurisdiction in Oregon. The court framed its analysis of the 13 14 15 16 17 18 19 20 21
22 ,

facts as follows: "We tum now to the facts in this case: .Our inquiry is whether Hydrauiic engaged in some conduct by whieh it sought to serve the Oregon market or purposel y: avail itself of the priv'ilege of doing business in Oregon. Hydraulic operating solel.y in New York, sells servo actuators it has manufactured in New York, to businesses for use as component parts of other products. The finished products, in this case a Cessna aircraft, are to be sold in turn in a.nationwide ..m.arket. By undertaking economic activity of this kind with the expectation that its products ultimately will come to rest in every state, Hydraulic has e ectively "d,eliver[ed] its products irito the stream of conunerce with the expectation that they will beurchased by consumers in [Oregon]." World-Wide Vvlkcwagen, supra, 444 U.S. [286] at 298, 100 S.Ct. [559] p at 567. Even though Hydraulic did not conduct any sales activities in Oregon itself, its business has been d,irectly affected by sales transactions oceurring here. To that extent, it has benefit from the protecpon which our laws have given to the ed marketing of Cessna aircrtft containing its servo actuators. "Hydraulic, having sold a product with the intention of deriving economic benefit from a national market, including Oregon, ean expect to be hauled into court in Oregon when a product containing ,its allegedly defective servo actuator is purchased here and causes injury to a resi The alleged purchase in. Oregon of the dev.ice dent. which allegedly caused the injury is a substantively relevant forum=reiated fact, the absence of which caused a eontrary result in State eac rel Michelin v. Wells, 294 Or. 296, 657 P.2d 207 (decided this date). Exercise of personal jurisdiction in tbis circumstance does not offend due process and is therefore allowed by Rule 4. "Finally, Hydraulie objects to Oregon's exercise of jurisdiction because the accident did not occur in Oregon. It may be that no court has yet exercised jurisdiction in this circumstance, but the issue is whether the contacts whieh do exist are sufricient, not whether some other type of contact is missing. Accordingly, where jurisdiction is Page 5- PLAIlVTIFFS' OPPOSTTION TO DEFENDANTS CTE TECH CORP.'S AND CHINA TERMINAL & ELECTR1C CORP.'S MOTION TO DISMISS FOR LACK OF PERSONAL B W JURISDICTION s " ~'~"`~'" ~ ~~ROA Suft 320
~~~"M

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1 2 3 4 5 6 7 8 9

based on purchase of products containing Hydraulic components in Oregon and in ury therefrom to an Oregon resident, the site of the accident does not affect the oerwise constitutional sufficiency of the existing economic contacts. The alt.ernative writ is dismissed." Hydraulic Servocontrols, 294 Or. at 389-390, 657 P.2d at 215-216. (footnotes and some internal citations omitted) In the case at Bar, plaintiffs' purchase of the product manufactured by CTE occurred in I Oregon, and the "in,jury io person or property" occurred in the State of Oregon. Additionally, the "products, materials or things distribttted, processed, serviced or manufactured by [CTE] were used or consumed within [Oregon] in the ordinary course of trade. See ORCP 4 D. Given I the allegations in plaintiffs' second amended complaint (on file) plaintiffs and plaintiffs' proposed third amended complaint (for which plaintiff has sought leave to file) clearly establish
"well-pleaded allegations" against CTE that bring CTE within the purview of ORCP 4 D. As the court stated in Hydraulic Servocotrols in 1982 and reaffirmed in Cfrcus Circus in 1993 "once a

10 11

12 plaintiff alleges facts brining his or her case within a specific provision [of ORCP 4] that 13 I ordinarily would be the end of the matter." lYydraulic Servocontrols, 294 Or. at 385, 657 P.2d at 14 213; Circus Circus, 317 Or. at 156, 854 P.2d at 463. 15 16 17 18
State ex rd Ck=s Circus Reno. ln . v. Pone
In Circus Circus the Oregon Supreme Court reaffirmed its jurisprudential analysis of personal jarisdiction in Hydraulic Servocontrols. In Circus Circus the Court found no personal

19 jurisdiction existed in Oregon over a Nevada corporation (Circus Circus) under the specific facts of 20
that case. In brief,.plaintiff Smith was injured in Reno, Nevada outside of a hotel operated by Circus

21 i Circus when an utilcnown person threw a bottle from a window of the hotel and it struck plaintiff. 22 I Plaintiff asserted that Circus Circus was subjectto both and general and speeific personal jurisdiction 23
24 '

in Oregon because of its activities in Oregon, including, advertising its Reno facilities in a major

Oregon newspaper, providing brochures to Smith's Oregon travel agent, maintaining a toll free

25 I telephone information service available to Oregon resident and telephoning Smith's Oregon 26 27
28 I

residence to conf'irm his hotel reservation. 'Me court noted that Circus Circus was not registered to

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I do business in Oregon, it paid no business taxes here, it had no bank accounts, offices, real estate, I employees or exclusive agents in Oregon. Circus Circus, 317 Or. at 160, 854 P.2d at 466. In Circus Circus, the Court concluded that general jurisdiction did not exist under ORCP 4 A and, because the injury did not occur in Oregon, jurisdiction did not lie under ORCP 4 D. In examining whether jurisdiction would lie under the "catch-all" provision of ORCP 41., the Court noted that by advertising in Oregon, providing brochures and having telephone contact with Smith
that:

8 ',

9'
10 '. ~11

'Circus Circus did `purposefully direct' its activities at residents of Oregon. However, Smith's negligence claim against Circus Circus does not 'arise out of or relate to' the activities of Circus Circus iti Oregon. See Burger King Corp. v. Rudzewfcz .[citation omitted] (stating, that test and givirig, examples of claims that arise out of or relate to a defendant's forum-related activities).
*x~

12 13 14 15 16 17 18

"We conclude that Smith's claim does not arise out of or relate to Circus Circus' activities in Oregon. That being so, Circus Circus does not have the minimum contacts necessary to sustain jurisdiction over it in the present action. Circus Circus is not subject to the jurisdiction of the Ore gon circuit cour't under ORCP 4 L." Circus Circus Reno, 317 Or. at 160, 854 P.2d at 466. hasize that the The Prunar}' P~ se in citin to Circus Circus for the case at Bar is to emP g Oregon Supreme Court analyz,ed Oregon's jurisdictional statute, including the specific provisions of ORCP 4 D in light of the United States Supreme Court case in Burger King. In Circus Circus, the Oregon Supreme Courtreaffirmed the Hydraulic Servocontrols analysis that personal jurisdiction

19 over a defendant is appropriate if any of the enumerated bases in ORCP 4 B through K apply.
20

Two relatively recent court of appeals deci'sions, Nike USA, Inc. (2006) supra and Sharnrock Building Materials, InG (2003) supra are worthy of note in cannection with this case. Both cases address Oregon's Supreme Court jurisprudence and U.S. Supreme Court jurisprudence. Both cases found that Oregon's exercise of personal jurisdiction over the defendants was appropriate. Neither

21 22 23

24 case involved personal injury in the state of Oregon. Shamrock Building Materials involved nothing 25 more than phone and fax communications with payments issued from Oregon to the non-fonun 26 27 28
Page 7- PLAINTIFFS' OPPOSTTION TO DEFENDANTS CTE TECI-I CORP.'S AND CHINA TERMIIVAL & EIECTRIC CORP.'S MOTION TO D1SA+YISS FOR LACK OF PERSONAL 9"3 '~` L"' ft"'' ~ JURISDICTION sM ?Amdm xea sdce 320
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defendant. The products that were the subject of the contract were never delivered into Oregon by

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the out-of-state defendant. Nonetheless, the court of appeals held that the contacts between defendant and plaintiff Shamrock Suilding Materials were adequate to support personal jurisdiction. Likewise, the court concluded: "In sum, we conclude that Pro Sports' execution of the credit agreement and Iqbal's execution of his personal guaranty played `integal parts' in causing important economic consequences in Oregon. Defendants wanted to purchase plaintiffs' merchandise on credit. Although they initially had contact with a regional sales managerfrom Pennsylvania, theyreceived final creditapprovalfrom plaintiffs credit depaitment in Oregon after sending the signed eredit agreement and personal guaranty to this state. They also dealt with representatives from plaintiffs_ Oregon credit department over a period of several years, and they sent .Pro Sports' financial statements to plaintiffs credit department in Oregon in order to oomply with their obligations under the credit agreement. Accord.ingly, we conclude that defendants purposefully availed themselves of the privilege of causing important economic consequences in the State. of Oregon. "Plaintiffs claims arise out of defendatits' contacts with Oregon, see State ex rel Circus Circus Reno, Inc, 317 Or. at 160-61, $:54 P:2d 461, and the only remaining question is whether exercising jurisdiction would be consistent with notions of `fair play and substantial justice.' "On that point, we note that the Court explained in Burger Bing Corp. that `[a] State generally has a manifest inte re st in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors.' 471 U.S. at 473, 105 S.Ct 2174. It also explained that, where individuals purposefully derive benefits from interstate activities, as defendants did here, `it may well be unfair to allow them to escape having to.account in other States for consequences that arise:proximatelyfrom such activities[.]' Id. at 74. IOS S.Ct. 2174. Flly, the Court reasoned'that, given ina the changes in 'modern transportation and communications,' 'it usuallywill not be unfair to subject (an out-of-state defendant] to the burdens of litigating in anothea forum for disputes relating to such.aetivity.' Id All those considerations support exe.rcising jurisdiction over defendants. In addition, since State ex re! Ware, wehave held that `[r]eliance on a guaranty is a critical factor' in determining the reasonableness of asserting personal jurisdiction over a nonresident guarantor. White Stag Mfg. Co., 67 Or. App. at 465, 679 P.2d 312; see also Nike, Inc., 75 Or. App, at 373,707 P.2d 589; Resorts Jllarketing v. Zuckerman, 52 Or. App. 589, 594, 628 P.2d
770 (1981).

3
4

e
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8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
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"Under the circutnstances of this case, defendants reasonabl y should have understood that, if a problem arose over credit extended to Pro Sports for goods purchased from plaintiff, they would be subject to personal jurisdiccion m Oregon. Because the trial court had personal jurisdiction over defendants under ORCP 41r, we reverse its judgmentand remand:for:further proceedings." Nike USA, Inc., 208 Or. App. at 542$44, 145 P.3d at 327=328: (footnotes omitted)

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1 2 3 4 5 6 7 8

FACTS OF THE CASE AT BAR

With the detailed description of relevant law given above, the following facts are relevant to the court's decision. Plaintiffs' proposed third amended complaint rnakes multiple allegations against CTE that are summarized as foliows: 1. CTE manufactured the battery charger and/or componant parts incorporated in to the Invacare power wheelchair sold to Ms. Willemsen in Oregon through the Invacare distribution network, including United Seating & Mobility. 2. Through its dealings with Invacare, CTE was aware that Invacare sold and distributed the CTE-manufactured battery charger and component parts as part of the Invacare power wheelchair throughout the 50 United States, including the state of Oregon; and 3. CTB conducted business in the United State of America.

10 11

12 The actual allegations of plaintiffs' Third Amended Complaint are attached as Exhibit l.and are 13 14 15 16 17

highlighted for the Court's convenience. Plaintiffs' well-pleaded allegations are accepted as true and the pleadings and affidavits are oonstrued liberally in favor of jurisdiction. ORCP 21; Nike tISA, Inc., 208 Or. at 533, 536,145 P.3d at 322, 324. Plaintiffs' declaration of counsel with attached exhibits establishes the following facts: (1) CTE is a supplier of component parts sold to defendant Invacare which in turn was sold to defe.ndant United Seating & Mobility ("US&M') which in turn sold the Invacare power wheelchair with its integral battery charger to Karlene Willemsen; (2) CTE knew that its battery chargers were being used as patts of FDA-regulated medical devices in Invacare's markets throughout the United States, including Oregon. Even though C"TE did not conduct any sales activity in Oregon itself, its business has been directiy affected by sales transactions occurring here, including the transactionbetween Karlene Willemsenand USBcM; (3) To that extent, CTE has benefitted from the protection which Oregon laws had CTE, having sold a product with the intention of driving economic benefit from

I I I
.J

18 19 20 21 22 23 24

25 given to the marketing of Invacare products containing the CTE battEry charger; 26 (4) 27 Inva+care's national market, including Oregan, can reasonably expect to be haled into cw.ut in Oregon 28 Page 9-'PLAINTiFFS' OPPOSTI'ION TO DEFEAIDANTS CTE TECH CORP.'S AND CH1NA TERMINAL & ELECTRIC CORP.'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION ,MMcoew,Re.o.Sdt 3M
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1. when the Invacare product sold with CTE's allegedly defective battery charger is purchased in
2

Oregon and causes injury in Oregon to an Oregon resident.

I ~ I I t I I

3
4'

U.S. SUPREME COURT

Three U.S. Supretne Court cases are particularly relevant to this discussion. They are
Internarional Shoe Co. v. Washingmn, 326 U.S. 310,66 S.Ct.154, 90 L.Ed. 95 (1945), World-Wide Volkswagen Corp. v Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 I...Ed.2d 490 (1980) and Burger King Corporalion v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). It would

5 6 7

8 I serve no purpose for plaintiffs to attempt a summary of these decisions separate and apart from the 9

analysis and application of legal principles applied by the Oregon Supreme Court and the Oregon Court of Appeals in the cases discussed earl ier in this brief. In short, Oregan's jurisdictional statutes ind jurisprudence apply U.S. Supreme Court analysis and holding to Oregon cases. Additionally, recent supreme court decisions from other jurisdictions that demonstrate the evolving and expanding standard of personal jurisdiction in the global marketplace are inst.ructive.

10 11 12 13

14 Those cases are Nicastro v. Mclntyre, 201 N.J. 48, 987 A.2d 575 (N.J., 2010), Er Parte DBI Inc., 15 16 17 18
23 So.3d 635 (Ala. 2009) and State (of South Carolina) v. N.V. Sumatra Tobacco Trading, Co., 379
SC 81, 666 SE2d 218 (S.C., 2008).

FA T
CTE sold its battery charger to rnvacare Corporation, an Ohio corporation that manufactures

19 FDA approved medical device.s and mobility devices throughout the United States, North and South 20 America and worldwide. CTE Corporation has designated Robert Dowd of the Pilgrim Harp Co., 21
Inc. 35050 Avon Commerce Park, Avon, Ohio 44011 (phone number: 440-249-4185; email:

22 bob@pilglimligp.com) as its United States agent and official correspondent. (Exhibit 3, FDA 23 24 25 registered company profile for CTE Corporation-LTU TU Factory at page 1.) CTE is a"finished device" "manufacturer" as those terms are defined by 21 CFR
820.3(l.)(0) Z

I I I

26 27 28
2 "Finished device" means any device or accessory to any device that is suitable for use or capable of functioning, whether or not it is packaged, labeled, or sterilized.

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CTE maintains product liab ility insurance in the amount of $1,000,000 per incident covering

2 CTE's products that are sold in the United States. 3 In order to obtain the benefits of access to the U.S. matket, including the state of Oregon, 4 CIB cwmplied with the FDA registration and reporting requirements and maintained seven-figure 5 product liability insurance to cover CTE product defects occutring in the Unit,ed States. The insurer 6 for CTB Corp.'s defective products coverage during the time period relevant to this lawsuit is Tokio 7 Marine Newa lnsurance ("Tokio Mazine"). Tokio Marine has a claims adjuster/administrator 8(Jurgen Suuck) who was assigned speciftcally to the handling of Ms. Willernsen's claim even prior , 9 to the ftling of this lawsuit. Mr. Suuck continues to administer ihe claint against CTE subsequent 10 to the filing of this lawsuit. (Exhibit 4, correspondence to and from Jurgen Suuck.) 1.1 As in Hydraulic Servocontrols CTE's business has been direetly affected by sales 12 transactions occurring in Oregon. To that extent. CTE has benefited from the protection which 13 Oregon laws have given to the marketing of Invacare products cwntaining CTlrmanufactured battery ' 14 chargers. 15 Moreover, because CTE sold its battery chargers to Invacare with the intention of deriving 16 econornic benefit from Invacare's national market, including Oregon, CTE can expect t.o be haled 17 into court in Oregon when an Invacare product containing CTE's adlegedly defedive battery charger 18 is.purchased in Oregon causes injury to an Oregon resident in Oregon. 19 21 The fortun stat,e (in this case Oregon) has a very significant interest in adjudicating this Additionally, Oregon citizens face the prospect that other similariy defective and therefore dangerous 20 dispute which involves a horrific deathby fire of one of its citizens and substantial property damage. 22 and life threatening products manufactured by CTE are located in the state. The individual plaintiffs 23 have an overwhelming interest in obtaining convenient and effectiive relief. Oregon is a fair forum 24 with a strong and independent judiciary that is fully capable of resolving the product liability dispute 25 26
~

"Manufacturee' means any person who designs, manufactures, fabricates, assembles, or processes
a finished device. Manufacturer includes but is not limited to those who perform the functions of contract sterilization, installation, relabeling, rentanufacttuing, repacking, or specification development, and initial distributors of foreign entities performing these functions. 21 CFR 820.3.

27
28

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presented by this case. Although there is some burden for the Taiwanese company, CTE, to litigate in Oregon, that burden is much less significant in 201 d than it was approximately 25 years ago when the U.S. Supreme Court last considered the application of traditional notions of justice and fairplay."

I I I I I I

4 1 Electronically stored information (`BSn with document databases established on the web provide

5
6 7

instant access for both plaintiff and defense counsel to document databases for purposes of
discovery. CTE is not in a remote area, but rather in a highly industrialized country. Phone, email and other essentially instant cotnmunications are available to defendant CTE and their Oregon

8 I counsel as well as to CTE's insttrance company. Depositions by web-based and/or satellite-based 9 I links are routine. On occasions when personal appearance is necessary, Portland has an international

10 I airport with connecting service to Taiwan. 11 Most importantly however, a fair analysis of the facts in this case demonstrates that CTE

12 could "reasonably anticipate being haled into court" in Oregon. As the fact description and the 13 14 15
allegations of the complaint disclose, CTE is a large corporation that manufactures medical devices, wiring harnesses for automotive products and otlier integxal componentparts for useby manufactures all over the world. CTE knows that its battery chargers are "finished devices" as defined by the

16' FDA. CTE knew that its chargers were being used for FDA approved wheelchairs and marketed

17 throughout the United States, including Oregon, by its customer, Invacare. 18 19 20 21

22 23
24 25 26 27 28

DLSCOVERY REQUESTED
C'I`E Has Refused to Pgovide Discoverv Relevant to :Turisdiction In the case at bar, the court should be aware that CTE has refused to provide documents responsive to plaintiffs' discovery requests relevant to the issue of personal jurisdiction. While this
case was pending in the Oregon U.S. District Court, and prior to plaintiffs filing a motion to compel discovery on that issue, CTE agreed that it would respond to plaintiffs' discovery requests related to the issue of personal jurisdidion. Despite that agreement, CTE effectively stymied plaintiffs from obtaining interrogatory responses while this matter was in Oregon's U.S. District Court. As a result, plaintiffs' interrogatories and similar questions must now be directed to CTE thr)ugh a deposition

of organization. Additionally, CTE must be compelled to produce documents relevant to the issue Page 12 - PI.AINTIFFS' OPPOSTTION TO DEFENDANTS CTE TECH CORP.'S AND CHINA TERNIINAL $ EI.ECTRIC CORP.'S MOTION TO DlSMISS FOR LACK OF PERSONAL H ~"u~~"''r M. JURISDICTIOAI 7~8J Mcdows flo.d. Su1te u0
Calx Oswqa. 07l 7107]
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of personai jurisdiction. Plaintiffs' discovery requests were served on CTE on July 28, 2009. CTE's

2 responses were not servetl on plaintiffs' until approximateiy 10 months later on May 21, 2010. The 3 responses to plaintiffs' requests for production are attached as Exhibit 5 to plaintiffs' Declaration 4 of Counsel. 5 As can be seen from its responses, CTE has refused to provide any documents. Defendants 6 have unilat,erally determined t,o frustrate plaintiffs' legitimate discovery requests by claiming that 7 only documents directly related to business activity in Oregon are discoverable. However, as the 8 cases cited by plaintiffs clearly show the correct standard is CTE's actions in injecting its product
9 ento the stream of commerce such that it can reasonably be expected to know that its products would

10 be used and/or sold into regon. Thus, regardless of whether CTE d'uectly conducted business in 11 Oregon, CTE's actions and knowledge in placing its products into the stream of commerce that could 12 foreseeably be expected to reach Oregon is the key issue for determining personal jurisdiction in this
13 case.

14

CTE's conscious stonewalling of plaintiffs' legitimate and basic discovery rights should now

15 be addressed by the court_ The information that has been uncovered by plaintiffs without CTE's 16 discovery responses already demonstrates pervasive business dealings in the Unit.ed States. This 17 includes its consent to jurisdiction in the U.S. District Court in Ohio, ongoing contract relationships 18 with defendant Invacare, purchase and maintenance of products liability insurance for claims against 19 CTE in the United States and contacts between its insurers' claims adniinistrator/adjuster and the ~. 24 parties to this litigation. 21 BecauseCTEhasrefusedtoforthrightlycomplywithdiscoveryrequests,CTE'sdeclarations 22 should be viewed with some skepticism. This is especially so given the evidence supporting 23 personal jurisdiction over CTE thal plaintiffs have unearthed through their independent investigation 24 and despite CTE's evasive responses in the discovery process, 25 Plaintiffs believe that the "well-pled allegations" of their complaint along with the 26 declaration of their counsel and its exhibits provide sufficient basis for the court to deny CTE's ~ ~ ~
~

27 motion to dismiss for lark of personal jurisdiction. tf CTE still contests that it is not subject to
28

Page 13 - PLAINTIFFS' OPPOSPfION TO DEFENDANTS CTE TECH CORP.'S AND CHINA TERMINAL & FLECTRIC CORP.'S MOTION TO DISMLSS FOR LACK OF PERSONAL JURISDICTION ~, $ F"' ;= o ~`
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I
1 2

personal jurisdidion, plaintiffs seek tbe court's permission to conduct ORCP-mandated discovery from CTE prior to ruling on CTE's motion. CONCLUSION Plaintiff requests two forms of relief from the court: 1. Deny defendants' motion to dismiss based on the pleadings and evidence presented to the oourt; or 2. Stay a decision on defendants' motion while compelling defendants to provide documents responsive to plaintiffs' previously served discovery mquests and to snbmit to an ORCP 39 C(6) deposition of organization related to the issue relevant to personal jurisdiction.

3 4 5 6 7 8 9

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10 11 12

DATID: JulyT~, 2010

13 14 15 16 17 18 19 20 21 22 23 24 25 26 2? I 28
Page 14 - PI.AIIdTIFFS' OPPOSITION TO DEFENDAAiTS CTE TECH CORP.'S AND CHINA TERMINAL & ELECTRIC CORP.'S MIOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION , ~ ",;,~~ ~
Isre oswaW. OR 9=

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I
1
2

DECLARATION OF SERVICE I declare under penalty of perjury of the laws of the state of Oregon that I caused to be served in the manner indicated a true and acxuucate copy of the foregoing PLAINTIFFS' OPPOS TTION TO DEFENDANTS CTE TECH CORP.'S AND CHINA TERMIIVAL & ELECTRIC CORP.'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION and DECLARATION OF PLAINTIFFS' COUNSBL (WITH ExH1BPTS).
Walter H. Sweek Cosgrave vergeer Kester LLP 805 SW Broadway, 8th Floor Poitland, OR 972(}5 Attorney for Iravacare Corporation, Motion Concepts, Inc. and Perpetua! Motion Enterprises Jay W Beattie Lirtdsay Hart Neii & Weigler L.LP 1300 SW 5th Ave Ste 3400 Portland OR 97201 Attorney for United SeQtasg & Mobility, LLC Mary-Arme gayburn Martin Bisdioff Templeton Langslet & HofBnan LLP 888 SW 5th Ave, Suite 900 Pottland, OR 97204 Anortey for CTE Tech Corp and China Terminat &
E(ectric Corp

I I I

3 4 5 6 7 8
9

By Hand Delivery By U.S. Mail By Facsimile By Panail Attachnwm

10 11 12

3 By Hand Delivery 0 By U.S. Mail X By Facsimile By Email Attachment

13

14 15

3 By Hand I3elivery 3 By U.S. Mail X By Facsimile X By Email Attaclvnent

16 17 18 19 20 21
22 23 24 25

Ronald J Clazk Bullivant HouserBailey PC 888 SW 5th Ave Ste 300 Portland OR 97204
Attorney for Pass & Seymour, Inc.

By Hand Delivery By U.S. Mail K By Facsimile By Eanail Attachment By Hand Delivery By U.S. Mail K By Facsimile By Finail Attachmeat By Hand Delivery By U.S.1Vlail By Facsimile r3 gy Effmd Attarhment

Heather C Beasley Davis Rothwell Earle & Xochihua PC 11 l S W 5th Ave Ste 2700 Portland OR 97204 Attorney for GAW Electric, Inc. Joshua P Stump Hairang Long Gary Rudnick PC 1001 SW 5th Ave 16th Flr Portland OR 97204 Anorney for Siemens Indusrry, Inc.

26 27 28

I I

BowUMDl LAVI FDUL r.C. Sxa! afeadow, amd, scam 310 161E! OSwLp, os vro"
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I I I I I ' I I I I I I 0 I

1 2 3 4 5 6 7 8 9 Christine F Miller, admitted pro 1)ac vice Julia T. Farrell, admitted pro bac vice J. Claire Todorovich, adaritted pro hac vice 190 Carondelet Plaza, Suite 600 St. Louis, MO 63105 Attorney for Stemens Industry, Inc. 3 By Hand Delivery 3 By U.S. Mail K By Facsitnile 3 By Email Attachment

Ryan McI.ellan Snuth Freed 8c E6erhard PC 111 SW 5th Ave 43rd Flr Portland OR 97204 Attorney for Summers Group, lnc.

3 By Hand Dclivery 3 By U.S. MaiI K By Facsinule 3 By Fxrrai! Attachnent

10 11 12 13 14 15

Richard C. Peatce 921 SW Washington St, Suite 755 Portland, OR 97205

Co-Coratsel for Plaintifjs

By Hand Delivery By U.S, Mail X By Facsimile By F,mai1 Attadtment

Signed and dated at Portland, Oregon this 8' m day of July, 2010.

-.

16 17 18 19 20 21 22 23 24 25 26 27
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1 2 3 4

IN TBE CIRCUTf COURT OF THE STATE OF OREGON FOR TIiE COUNTY OF MULTNOMAH

N
~

5
6 JEFFREY WQ.IEMSEN, as Personal
Case No. 0902-01653

7 Representative of the Estate of KARLENE J. WILLEMSEN and JAMES WILdEMSEN, g

9
V.

Plaintiffs,

DECI.ARATION OF PLAINTIFFS' COUNSEL

I I I

I
I I
I I I I I

10 INVACARE CORPORATION, a foreign 11 corporation; UNITED SEATING & MOBII.ITY, LL,C., a foreign limited liability 12 company; CHINA TERMINAL & ELEC"PRIC CORP., a foreign corporation; 13 CTE TECH CORP., a foreign corporation; MOTION CONCEPTS; INC., a foreign 14 oorporation; PERPETUAL MOTION EN'1ERPRISES, LTD, a foreign corporation; 15 PASS & SEYMOUR, INC., a foreign corporation; S>EMENS CORPORATION, a 16 foreign corporation; SIEMENS INDUSTRY, INC, flk/as Siemens Energy and Automation, 17 Inc., a foreign corporation; SUMMERS GROUP, INC., dba REXEL, a foreign 18 corporation; and GAW ELECTRIC, INC. an Oregon Corporation,
19

. ____......._.

20 21 1. 22 2.

I, 7effrey A. Bowersox, hereby declare as follows: I am one of plaintiffs' counsel in the above-captioned matter. I make this declaration in opposition to the motion of dcfendants CTE Tech Corp. and China

23 Terminal & Electric (hereinafter oollectively referred to as "CTE'l Motion to Dismiss for Lack of Personal 24 Jurisdiction.

25 3.

AU of the exhibits attached hereto are true copies of the originals as I have prepared them or have

26 received them in discovery from parties in this litigation and/or as have been obtained by service upon me Page 1- DECLARATION OF PLAINTIPFS' COUNSEL
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I
I by defendants to the litigation andlor from readily available public information including internet sites and
2 governDnent filings with the FDA. 3 4. Attached as Eahibit 1 to this declaration is a true copy of plaintiffs' proposed third amended

4 complaint which is being filed. with the couri as plaintiffs' "Amended Motion for Leave to File 'lbird 5 Amended Complaint " 6 5. Exhibit 2 is a copy of the Master Contract between Invacare Corporadon and CTE with exhibits

I 0

7 attached to the Master Contract as provided by defendant lnvacare in discovery in this proceeding. NOT 8 FILED AT THIS TIlIIE. SUBJECT TO PROTECTIVB ORDER. 9 6. Exhibit 3 is information from ZAPConnect.com indicating that C'lE Corporation-LIU-TU

10 Factory has designated Robert Dowd, GNUOC of the Pilgrim-Harp Company, Inc. 35050 Avon Commerce 11 Parkway, Avon, Ohio 44011 as its US agent information and official correspondent information in 12 wnnection with communications to and from the United State FDA. 13 7. Exhtbit 4 are copies of correspondence to and from Jurgen Suuck, insurance adjuster for CTB's

14 insunVrs.

15 8.

Exhibit 5 is CTE Tech Corp. and China Terminal & Electric's response to plaintiffs' first

16 request for production related to the issue of personal jurisdiction. As can be seen, defendants refused to 17 provide responsive documents based on CTE's own inteapretation of what areas of inquiry are relevant to 18 the issue of personai jurisdiction in Oregon. 19 9. Exhibit 6 is my July 16, 20091etter to the Honorable Janice M. Stewart, US Magistrate Judge

20 for the U.S. District Court for the District of Oregon setting forth the agreement for counsel for CTE and 21 plaintiffs regarding jurisdictional discovery.

22 10.

Exhibit 7 is a true copy of plaintiffs' first interrogatories to defendant China Terminal &

23 Electric ami CTE Corporation, also known as CTE Tech Corporation. These interrogatories were never 24 answerefl by CTE prior to the case being remanded to Multnomah County Circuit Court. Because 25 interrogatories are not permitted under the ORCPs, plaintiffs now seek to depose the CTE organizations to 26 obtain information relevant to the issue of personal jurisdiction. Page 2- DECLARATION OF PLAIIVTIFFS' COUNSEL

~~.

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I
l 11. fixhibit 8 is a true copy of the invoice for the Invacare wbeelchair and battery charger sold to 2 N1s. Willemsen. 3 12. Exhibit 9 is the CTfi insurance contract. It is not being filed at this time because it is subject to
4 Protective Order.

1 hereby declare that the above statements are true to the best of my knowledge and belief, and that

6 I understand it is made for use as evidence in cour[ and is subject to penalty for perjury
7

8 9

DATED: July 8, 2010. BowExsax Lnw Fmu, P:c.

I I I I

10 11
12

13

BY: Je .. . Y Trial

. ., o e SB. o. 81442 e or laintiffs

14 15 16
1'7

18 19 20 21 22 23

1 I I I

24
25

26
Page 3- DECLARATION OF PLAINTIFFS' COI7NSE[.
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I I I I I

1 2 3 4

IN TIHE CIRCUTr COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH JEFFREY WIIJLEMSEN, as Petsonal R resemative of the Estate of KARLENE J. EMSEN and JAMES WILLEMSEN,
Case No. 0902-01653

6
7 8 9
V.

W~

I
I I I I I I I

Plaintiffs, 10 INVACARE CORPORATION, a foreign 11 corporation; UNITED SEATING & MOBII.TI1', LLC., a foreign limited liability 12 company; CHNA TERMIIJAL & ELEC TRIC CORP., a foreign corporation; 13 CTE TECH CORP., a foreign corporation; MOTION CONCEPTS, INC., a foreign 14 li corparation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; 15 PASS & SEYMOUR, INC., a foreign corporation; SIEMEIVS CORPORATION, a 16 foreign_corporation; SIEMENS IND.USTRY, INC, f/k/as Siemens Energy and Automation, 17 Inc., a foreign cviporation; SIJMMLRS GROLTP; INC., dba REXEL, a foreign 18 corporation GAW ELECTRIC, INC. an ; and Oregon Corporation, 19 Defendants.

[PROPOSED] THIItD AMENDED COMPLAM NOT SUBJECT TO MANDATORY ARBITRATION JURY TRIAL DEMANDED

20 21 22 23, 24 25 26 27
28 ;

Plaintiffs allege: PARTIE5

1.
Plaintiff Jefftey Willemseitisthe duly appointed Personal Representative of the Estate of his deceased mother, Karlene J. Willemsen. The Estate is filed in Multnomah County, Oregon and at all relevant times, Jeffrey Willemsen was and is a citizen of the state of Oregon and plaintiff s decedent, Karlene J. Willemsen, was a citizen of the state of Oregon. James Willemsen is decerlent

I I

Page 1- [PROPOSED] THIRD AMENDED COMPI.AINT

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1 2 3 4

Karlene J. Willemsen's son who was living in the same home as his now deceased mother and whose property was destroyed and who has suffered financial loss as a result of the house fire that occutred from the defective products as hertinafter alleged. Plaintiff James Willemsen is a citizen of the state of Oregon.
i2~

5
6 7 8

Invacare Corporation ("Invacare") is a corporation with its primary place of business in Ohio and is a citizen of Ohio. lnvacare is one of the world's leading manufacturers of mobility assistance products, including the lnvacare power assisted wheelchair purchased by and on behalf of Karlene J. Willemsen. Invacare also manufacturers znotorizedhospital beds, including the motorized hospital bed that was deflvered to and in use by Karlene J. Willemsen on February 1, 2008. United Seating & Mobility, Id.0 ("US&M") is a corporation with its primary place of business in Missouri and is a citizen of Missouri on information and belief, US&M may also be a citizen of other states through the individual members of the LLC. United Seating is an authorized lnvacare products retailer with multiple show rooms in Oregon, including the Portiand metropolitan area. United Seating sells, leases and distributes Invacare rnobility products and accessories, provides installation and training to purchasers and provides inspection and repair services for Invacare products in Oregon, includingthe lnvacare power assisted wheelcbair purchased by Karlene J. Willemsen. CTE TECH Corp. ("CTE") is a Taiwan corporation that is not a citizen of Oregon and that manufactures batteries and/or battery chargers and conducts business in the United S tates of America wheelc,liair sold to decedent Karlene J. Willemsen by United Seating and/or in the Invacare motorized hospital bed sold or leased to decedent Karlene J. Willemsen. China Terminal8t Electric Cozlp. is a prior business name of defendant CTE TECH Corp. that manufactured batteries and/or battery chargers, and conducted business in the United States of America and provided component

B
B I I I ' I I I I I 1- -

10 11 I 12 13 14 15 16 17 18 19 20 21 22

23 I and provides component parts. and/or accessories that were used in the lnvacare power assisted 24 25 26 27 28

Page 2-[PROPOSED] TIIIRD A1VIENDBD COMPLAINT

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EXHIBIT 1
.

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(SD3) 452d8J8

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19:45 0710(( )MT-04 Pg 24-100 -

I I I I I I I I
'

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

parts andlor accessories that were used in the Invacare power assisted wheelchair sold to decedent Karlene J. Willemsen by United Seating andlor in the lnvacare motorized bospitai bed sold or leased to decedent Karlene J. Willemsen. Collectively CTE TECH Corp. and China Terminal & Elecuic Corp. are referred to herein as "CTE." CTE knew from its dealings with Invacare tfiat Invacare's products including the b attery charger and compone.nt parts andlor accessories manufactured by CTE would be distributed throughout Invacare's market in the 50 United States, including Oregon. 5. Motions Concepts, Inc. ("Motion Concepts"), on inforniation and belief is a corporation organized under the laws of Canada andlor the state of New York and is

acitizen of Canada and/or

New Yoric and conducts business in the United States of America and provides cornponent parts andlor accessories that, on information and belief, were used in the Invacare power assisted wheelchair sold to decedent Karlene J. Willemsen by United Seating. 6. Perpetual Motion Enterprises, Ltd. ("Perpetual Motion'), on inforntation and belief is a corporation organized under the laws of Canada and is a citizen of Canada and conducts busumess in the United States of America and provides component parts andlor accessories that, on information and belief, were used in the lnvacare power assisted wheelchair sold to decedent Karlene J. Willemsen by United Seating. 7. Pass & Seymour, lnc. ("Pass & Seymour") is a corporation organized under the laws of the state of Delaware and is a citizen of Delaware with its principal place of business at 50 Boyd Avenue, Syracuse, 1VY 13221. Pass & Seymour provided electrical component parts that, on information and belief, were used in the construction of the home located at 9232 SW 5th Ave, Portland, Oregon 97219. 8. Siemens Industry, lnc., forrnerly known as SiemensEnergy and Automation, Im. ("S iemens") is a foreign corporation and provided electrical component parts that, on information and belief, were used in the constniction of the home located at 9232 SW 5th Ave, Portland, Oregon 97219. Page 3-[PROPOSEDJ TAIRD AMENDED COMPLAINT
80tY2R9071 LAW PpN.pL

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26 27 28

EXf11EBI1' 1

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I I

1
2

9.
Summers Group, Inc. is a corporation organiaed under the laws of the state of Texas and is

3' a citizen of Texas with its principal place of business at 6606 Lyndon B Johnson Freeway, Suite 200,
4

' Dallas, T'X 75240-6524. Surnmers Group, Jnc. operates in Oregon under the assumed name Rexel

5 and distributerl outlets, switches and circuit breakers that, on information and belief, were used in 6 the construction of the home located at 9232 SW 5th Ave, Portland, Oregon 97219. Summers

I I I

Group, Inc. is hezeinafter referred to as "Rexel."

10.

gI
9

GAW Blectric, Inc. is a corporation organized under the laws of the state of Oregon and is a citizen of Oregon and provided electrical installation contracting services on Ms. Willemsen's

10

11 home located at 9232 SW 5th Ave, Port]and, Oregon 97219. 12

13 I

I
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I

COMMON ALLEGATIONS

14

Plaintiffs decedent Karlene J. WiIlemsen was butned to death while confined to her

15, motorized hospital bed. The bed was in Ms. Willemsen's bedroom in her home located at 9232 S W

16 17 18

5th Ave, Portland, Oregon 97219 the moming of February 1, 2008.

Defendant Invacare manufactured, sold and/or distributed the motorized hospital bed in

19 which Ms. Willemsen was resting at the time of the fire. Defendant Invacare also manufactured, 20 21
sold andlor distnbuted the power assisted wheelchair used by Ms. Willemsen in her home. The power assisted wheelchair was manufactured, sold and/or distributed with a battery charger and

22 component parts manufactured by defendant CTE. The power assisted wheelchair was also 23 24 25
manufacmred, sold and/or distributed with component parts manufactured, sold and/or delivered by defendsnts Motion Concepts and Perpetual Motion.

I I I

26 27 28

United Seating sold, distributed and/or leased the power assisted wheelchair and its component parts including the battery charger and component parts manufaclnred by CTE and accessoties and also sold, distributed and/or leased the motorized hospital bed to Ms. Willemsen. Page 4-[PROPOSED] TIHIRD AMBNDED COMPLAINT
BOMrESa IdW FLOS, YG.

EXHIIBIT 1

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14
1 2 3 4

The sale of these products occurred in Oregon. The particular power assisted wheelchair was selected byMs. Willemsen through the sales promotional efforts and representations made regarding the power assisted wheelchair by United Seating and its employees and/or agents acting within the course and scope of their employment.
14.

S 6 i

An employee or authorized agent of United Seating arranged for delivery and installation of

I I I I I

7'. the power assisted wheelchair at decedent Karlene J. Willemsen's home. At that time, the employee 8 andlor authorized agent of United Seating provided some basic infonmation about the power assisted
9

wheelchair but did not give any wamings related to fire hazard and/or fire danger or any inforniation

10 about the history of fire hazard or danger from similar Invacare products. 11 12 13
. 15.

Following the delivery and installation of the power assisted whecichair by United Seating, Ms. Willemsen noticed an unusual noise during certain operations of the power assisted wheelchair:

14 United Seating sent a setvice technician who was either an employee or authorized agent, who 15 examined the power assisted wheelchair and perforrned some service on the power assisted 16 wheelchair. The service technician gave no warnings about any fire hazard or danger associated with 17 1$
19 i

the power assisted wheelchair, its component parts and/or its accessories, nor did the service technician give any warning about potential fire hazard or danger associated with the condition of the power assisted wheelchair at the time the service technician examined and/or performed service on the power assisted wheelchair.
16.

20

21
22 23

Pass & Seymour is the manufacturer, seller and distributor of the outlets and switches that were installed in Ms. Willemsen's home and in use on the day of the fire.
17.

24 25 26 27

Seimens is the manufacturer, seller and distribc2tor of the circuit breakers that we.reinstalled in Ms. Willemsen's home and in use on the day of the fre.

23

Page 5-[PROPOSED] THIRD AMENDED COMPLAIIdT

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18.

Rexel is distributor of electronic components including the outlets, switches and circuit breakers that were installed in Ms. WiUemsen's.home and in use on the day of the fire.
19.

I I I I I I

3 4 5

GAW Electric is the electrical installation service and contracting company that installed the

6 circuit breakers, outlets and switches in Ms. Willemsen's home that were in use on the day of the fire.
7 8 9
I20~~~.

On February 1, 2008, the Invacare power assisted wheelchair, its component parts and/or accessories andlor battery chargers manufactured, sold, leased and/or distributed by defendants manufacatre.d, sold, leased or distn'buted by Invacare and US&M malfiinctioned and caused a fire

10 Tnvacare, Motion Cancepts, Perpetual Motion, C'1'E and US&M and/or the motorized hospitai bed 11

12 to begin in Karlene J. Willemsen's bedroom.

13 14

21.

Altematively, on February 1, 2008, one or more of the outlets, switches and/or circuit

15 breakers manufactured, sold, leased or distcibuted by defendants Pass & Seymour, Seimens and 16 Rexel and installed in Ms. Willemsen's home by GAW Electric malfunctioned and caused a fire to
17 begin in Karlene J. Willemsen's bedroom. 18 19 20 21 22 23
22.

Alternatively one or more of tbe outlets, switches andlor circuit breakers was or were improperly installed by defendants GAW Electric, which improper installation caused a fire to begin in Karlene J. Willemsen's bedroona on February 1, 2008.
23.

Prior to the fire, Ms. Willemsen had maneuveaed her power assisted wheelchair to the edge

24 of her bed, had then worked her way into the motorized fiospital bed and had plugged the power 25

ass9sted wheelchair into its electric battery charger.

1/ // /1 //

26

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1 2 3
4

24.

Plaintiffs' decedent, Karlene J. Willemsen, suffered from multiple sclerosis disease that severely limited her mobility and as a result of which, Ms. Willemsen required a substantial period

of time within which to move herself from her power assisted wheelchair into her bed and/or from her motorized hospital bed into her power assisted wheelcliair.
~2:5;

I ~ I

5 6
7 8

The fire consumed the hospital bed in whicb Ms. W illemsen was resting and incinerated Ms. Willemsen who was unable to remove herself from ber bed prior to being bumed to death.
eL `s.'~. n~3 u "

10

/V. The autopsy and medical evidence demon strate.s that Ms. Willemsen was alive and conscious at the time of the fire and that she suffered significant pre-death burns, physical injury and psychological terror.
~~~

I
I I I I in

11 12 13 14

~27~~~

Ms. Willemsen sustained physical pain and pre-death terror, afong with the conscious knowledge of her impending death through incineration as a result of defendants' defective products andlor negligence, resulting in non-economic damages to Ms. Willemsen in an amount determined

15 16 17

by the jury to fairly and adequately compensate her for her injuries and damages in accordance vvith

18 Oregon law in an amount not to exceed $5,000,000. 19 20 21

Ms. Willemsen perished in the fire caused by defendants' defective products and/or negligence as alleged herein resulting in the loss of society, companionship, love, affection and care

A
I I I

22 for those persons for whom the Oregon state legislature has established a claim pursuant to Oregon's 23 wrongful death statute, andlor pursuant to Oregon's common law in an amount determined by the

24 jurors to fairly and adequately compensate the lawful beneficiaries in accordance with that statute, 25 26 27 28
The fire caused by the defective products ar d/or negligence as alleged herein caused physical datnage to Ms. Willem.sen's house. The property damage and repair to Ms. Willemsen's house and Page 7-[PROPOSED] THIRD AMENDED COMPLAINT F..NmI'I' 1
8awEwmcl.nwpm4rr. sBS Mmam. saed. Stne 320 Uke osWem. Oe 9=3

and/or common law, but in an amount not to exceed $3,000,000.

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II

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19=4e o7,o;, ', 5MT-04 Pg 29-100

personal property and plairntiff James Willemsen's loss of use of property and destruction of personal of at least $502,283.04. Additional expenses will likely be discovered and incurred and the fmal per annum on these economic losses from the date incurred until the entry of judgment herein. N0~R, Plaintiff James Willemsen sustained personal property loss and loss of use of the home where he lived with his mother as a result of the fire to his economic damage in the amount of $57,150.83. James Willemsen's loss of use of the premises will continue into the future and his darnages will be amended at the time of trial. Plaintiff James Willemsen is entitled to prejudgment interest on his economic losses at the legal rate of 9% pe.r annum from the date incurred to the date of entry of

2 i property and other consequential damages has caused plaint.ifFs' economic damages in the annount 3

4I amount will be proven at trial. Plaintiffs are entitled to prejudgment interest at the legal rate of 9%

I I

5 6 7 8 9

10 11

12 judgment herein. 13 i

I I I I

14 15 16 17

ad Sh Invacare is one of the world's largest manufacturers of mobility products with sales of over $1,500,000,000 during 2007. Invacare knows that its products are used by people with significant personal physical disabilities and whose life and safety depend on the quality control and safe

roducts and all of the accessories and c ~Po P used with Invacare nent arts 1~ormance of Invacare P 18 products, including the power assisted wheelchair sold to Ms. Willemsen.
19

32. Ynvacare has an extensive litigation history of defective products, including rnultiple serious fire damage, fire personal injury and fire death clainis related to its products which led to a recall of one or more producrs during a period of time prior to plaintiff s death in February of 2008.
33.

20 21
22

23

24 ,
25 26 27 28

Invacare made repeated public assurances that its quality control problems hadbeen resolved and that the defects in recalled units in no way compromised the safety and quality of its products availible for purchase during 2006 and 2007, including the Invacare power assisted wheelchair and accessories sold to Ms. Willemsen.

Page 8-[PiZOPOSED] THTRD AMENDED COMPLAINT

eOWOMx UW FOL-,(, flC.

EXHIBIT )t

s9as Meeaow, acm.saae ua

LakeOsweea. OR 51095

IJ001 45IJ858

=m:MyFax - Bowersox Law Ftrm, P.C. To:Maryq 61

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I I I I I I t I I I I I I I I
F1 1
-

1 2 3 4 5 6
7I

34.
Plaintiffs commenced their action for personal injury and property damage against defendants, and each of them, within two years of the date that plaintiffs discovered, or reasonably should have discovered, the causal connection between the injury and/or property damage and each defendants' product and/or the conduct of each defendant giving rise to the claim.
,..._ ~.Sr+

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8 9
10 11 12 13 14 15

(P,owez ~Assist~=~eelcliair): (Ag$insriDefendaats.rinyacare.hTUSdtM yC~; Mauon'C~ oncepts<and P~eiva~.yMQt'ion)=;

~35~
Plaintiffs reallege paragraphs 1 through 34 above as though fully set forth herein.

Defendants Invacare, US&M, Motion Concepts, Perpetual Motion and CTE (collectively "Power Wheelchair Defendants"), and each of them, is a manufacturer, distributor, seller and/or

16 lessor of a product within the meaning of ORS 30.900, et seq. 17 18

Power Wheelchair Defendants, and each of them, delivered a product that ultimately

19 reached the consumer, Karlene J. Willemsen, in the normal flow of commerce, and without any 20 significant change in the product from the time it left the individual Power Wheelchair 21 22 23
Defendants' control, until the time of injury alleged herein.
3$_~?:,

Power Wheelchair Defendants, and each of them, defectively designed, inspected, tested, manufactured or otherwise created and sold and delivered a product or component part and/or

24 I

25 accessories of the Invacare power assisted wheelchair that caught fire on February 1, 2008, 26 causing the personal injury, death, properry damage and other losses alleged above. 27 28
Page 9-[PROI'OSED] THIIZD AMENDED COMPLAIIVT
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I I t I I I I I I ' I I I I I I I I

1 2 3 4 5 6 7 8 9

Power Wheelchair Defendants, and each of them, failed to provide plaintiffs with

appropriate wamings regarding the defectively dangerous nature of the product ultimately delivered to Karlene J. Willemsen, thereby preventing Ms. Willemsen, 3ames Willemsen and other persons from being aware of the defects in defe.ndants' products and protecting themselves ! from the defects, causing personal injury, death, property damage and other losses alleged herein.
1001,

Power Wheelchair Defendants, and each of them, failed to properly instruct Ms. Willemsen in the proper use of their products in a manner that would have been sufficient to herein. COUNT II (Against Defendants lnvacare and US&11)
41.
(lnvacare Mototized Hospital Bed)

10 prevent the fire, thereby causing personal injury, death, property damage and other losses alleged 11 12 13 14 15 16 17 18 19 20 21 22 23

Plaintiffs reallege paragxaphs I through 34 and 36-00 above, as though fully set forth herein. 42.

Defendants Invacare and US&M, and each of them, is a manufacturer, distributor, seller andlor lessor of a product within the meaning of ORS 30.900, et seq.
43.

Defendants Invacare and US&M, and each of them, manufactured, distributed, sold and/or leased a product that ultirnately reached the consumer, Karlene J. Willemsen, in the the individual defendants' control, until the time of injury alleged herein.
44.

24 normal flow of cornmerce, and without any significant change in the product from the time it left 25 26
27 '

US&M distributed, sold and/or Ieased the Invacare motorized hospital bed to Ms. Willemsen for use in her home. Page 10 -(PROPOSED] THIItD AMENDED COMPLAINT
' BOM81SOX1.INF0LN.P1C. 72ffi INe1daWc Rma.Su#e J211 LaR OWEP. CIR 9N.17

28

EJMBIT 1

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1 2 45.

Defendant Invacare defectively designed, inspected, tested, manufactured or otherwise created arid sold and delivered a product or component parts and/or accessories of the lnvacare motorized hospital bed that caught fie on February 1, 2008, causing the personal injury, death, property damage and other losses alleged herein.
46.

I I I

3
4

6 7
8 9

Defendant US&M defectively, inspeded, t.ested, or otherwise sold and delivered a product or component parts and/or accessories of the Invacare motorized hospital bed that caught fie on February 1, 2008, causing the personal injury, death, property damage and other losses alleged herein.
47.

10

I I

11 12 13

Defendarus Invacare and US&M failed to provide plaintiffs with appropriate warnings regarding the defectively dangerous nature of the product ultimately delivered to Karlene J. Willemsen, thereby preventing Ms. Willemsen, James Willemsen and other persons from being aware of the defects in defendants' products and protecting themselves from the defects, all to their economic and non-economic damage as alleged herein.
48.

14 15 16
17

18 19 20 21 22 23

Defendants Invacare and US&M failed to properly instnm.t plaintiffs in the proper use of their products in a manner that would have been sufficient to prevent the fire and causing the pessonal injury, death, property damage and other losses alleged herein. COUNT III (Circuit Breakeis, Switches and Outlets) (Against Defendants Siemens, Pass & Seymour and Rexel)
49.

24 25 26 27 28

Plaintiffs reallege paragraphs 1 througb 34, 36-40 and 42-48 above, as though fully set forth herein.

Page 11 -[PROPOSED] THIRD AMENDED COMPLAINT

Bowmismc uw FbH. r.c s7as afamoa:ave& su;lc rM
laMe 0s~6v, OR 97017

E7CHlQ31T 1

13U3)432-TeSB

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1 2 3 4
50.

Defendants Seimens, Pass & Seymour and Rexel, and each of them, is a manufacturer, distnbut.or, seller and/or lessor of a product within the meaning of ORS 30.900, et sey.
51.

I I I I I I I

Defendauts Seimens, Pass & Seymour and Rexel, and each of them, manufactured, Willemsen, in the normal flow of commerce, and without any significant change in the product from the time it lefi the individual defendants' control, until the time of injury alleged hesein.
52.

6! distribut.ed, sold and/or leased a product that ultimately reached the consumer, Karlene J.
7 8

9
l0i

Defendants Seimens and Pa.ss & Seymour defectively designed, inspected, tested, manufactured or otherwise created and sold and delivered a product or component parts of the outlets, switches and circuit breakers that malfunctioned on February l, 2008, causing the
personal injury, death, property damage and other losses alleged herein.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

53.
Defendant Rexel defectivcly inspected, tested, or otherwise sold and delivered a product or component parts to the circuit breakers, outlets and switches that malfunctioned on February

1, 2008, causing the personal injuzy, death, property damage gnd other losses alleged herein.
54.

Defendants Seimens, Pass & Seyrnour and Rexel failed to provide plaintiffs with appropriate warnings regarding the defectively dangerous nature of the products ultimately delivered to Karlene J. Willemsen, thereby preventing Ms. Willemsen, James Willemsen and other persons from being aware of the defects in defendants' products and protecting themselves from the defects, all to their economic and non-economic damage as alleged herein.
// // // //

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Page 12 -[PROPOSED] THId2D AMENDFD COMPLAINT

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19 :4 5 o 7rO~

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I I

1 2

SECOND CLAIM FOR RELIEF NEGLIGENCE

COUNTI

3
4

(Invacare Power Assisted Wheelchair) (Against Defendants Invacare, USBtM, China Terminal & Elecoric, CTE, Motion Concepts and Perpetual Motion, )
55.

5 6

I
I , ~

Plaintiffs reallege paragraphs 1 through 34, 36-40, 42-48 and 50-54 above as though fully
7

alleged herein.
8

56.

9.
Defendants Invacare, US&M, CTE, Motion Concepts and Perpetual Motion were

10
negligent in one or more of the following ways: failing to adequately design, inspect, test,

11
manufacture , instruct or warn, repair and/or otherwise properly and safely develop, deliver and

12
maintain the Invacare power assisted wheelchair, component parts andlor acc,essories sold to

13
Karlene J. Willemsen.

e I
~ I

14.
57.

15
The defendants identified in paragraph 56 above, knew or should have known that the

16
17

power assisted wheelchair, its component parts or accessories could and would malfunction in some fashion and cause a fire, including the fire that caused injuries and death to Karlene Willemsen and the property damage and other economic loss alleged herein.

18

19 20 21 22 23 24

COUNT 11 (Motorized Hospital Bed) (Against defendants Invacare and US&M)

58.

I
I I I I

Plaintiffs reallege paragraphs 1 through 34, 36-40, 42-48, 50-54 and 56-57 above as

25 though fully alleged herein. 26 27 28

59.

Defendants Invacare and US&1V1 were negligent in one or more of the following ways: failing to adequately design, inspect, test, rnanufacture, instruct or warn or oth$rwise properly Page 13 -[PROPOSED] THIRD AMENDED COMPI.AINT EXIIIBIT 1
BoWpASm [AR' WRM P.G .

5295 AY.EOOws Roed.Suik 720

lalm Os..epo. OR 9705 (543) 4T_-585B

=m:MyFax - Bowersox l.aw Firm, P.C. To:Mary~ R;

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18:48 07101( - )MT-04 Pg 35-100

I
1 2 3

and safely develop and deliver the motorized hospital bed,.component parts and/or accessories sold to Karlene J. Willemsen.
60.

Defendants Invacare and US&M knew or should have knowrt that the Invacare motorized

5 ' hospital bed, its component parts or accessories could and would malfiu>iction in some fashion
6. and cause a fire, including the fire that caused injuries and death to Karlene Willemsen and the

I I I I I
I I I

7 8 9

property damages and other economic loss alleged herein.

COUNT lII

10 11

(Circuit Breakers, Switches and Outlets) (Against Defendants Seiraens, Pass 8t Seymour and Rexel)
61.

12 Plaintiffs reallege paragraphs 1 through 34, 36-40, 42-48, 50-54 and 59-60 above as 13 14 15
Defendants Seimens, Pass 8z Seymour and Rexel were negligent in one or more of the

though fullYset forth herein.

62.

16
following ways: failing to adequately design, inspect, test, manufacture , instruct or warn and/or

17
otherwise properly and safely develop and deliver the outlets, switches and circuit breakers,

18
component parts andlor accessories sold to be used in the home of Karlene J. Willemsen.

19 63. 20
21

The defendants identified in paragraph 62 above, knew or should have known that the outlets, switches and circuit breakers, their component parts or accessories could and would

22

malfunction in some fashion and cause a fire, including the fire that caused injuries and death to

23
Karlene Wi4lemsen and the property damage and other economic loss alleged hetrein.

24
/l /l ll lI
25

26 27 28

I I

Page 14 -[PROPOSED] THI1tD AMENDED COMPLAIIVT

BawmtwxLUwpew.vt.
5285 Meadawa Rmd, Sm[e 310
lakc Osacga OR 4Rti33

EXMI'P 1

(301)452-5838

hm:MyFax - Bowersox Law Firm, P.C. To:Mary~

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19:45 o7rO1r;',3MT-04 Pg 56-140

I
1

THIRD CLAIM FOR RELIEF NEGI.IGENT INSTALLATION (Against Defendant GAW Electric)
64.

2'

I I I

3 4

Plaintiffs reallege paragraphs 1 through 34, 36-40, 42-48, 50-54, 59-60, 62-63 above as
5 6 65. 7

though fully set forth herein. Defendants GAW Electric negGgently installed one or more circuit breakers, outlets

8 9

andlor switches in Karlene Willemsen's house by failing to properly wim and/or secure vviring to the circuit breakers, outlets and/or switches thereby causing the fire descnbed herein.
66.

10 11

The negligence of defendants GAW Electric caused the personal injury, death and other
12

losses alleged herein.

13

I I

14

FOURTH CLAIM FOR RELIEF

15

UNLAWFUL TRADE PRACTICES ACT ("UTPA")

16
67.

17

Plaintiffs reallege paragraphs 1 through 34, 36-40, 4248, 50-54, 59-60, 62-63 and 65-66
18

above as though fully set forth herein.

19
68.

20
Defendants, and each of them, violated ORS 646.608 (1)(e)(f)(g) and (t).

21

I I I I I

69.

22
Defendants' vioiations of the Oregon U7PA give rise to a right af civil action by plaintiffs

23
herein pursuant to ORS 646.638, including the right to reasonable attorney fees, costs and other
24 ,

equitable relief as deemed appropriate by the court.

25
70.

26
Defendants, and each of them, wilfully violated Oregon's iTTPA, as the term. "willful" is

27
defined pursuant to the Oregon UTPA.

28
Page 15 -(PROPOSED] TH1RD AMENDED COMPLAII`Tf
6owWsmc L.uw FmK r,c. S7SS MazimcIIoed.simaJ]D Lake Osvom oA 91au (503) 47178% -

IT 1

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1 2 3
71.

As a result of the violation of the Oregon UTPA by defendants and each of them, plaint.iffs have suffered ascertainable loss as aileged herein.
72.

4;

I , I ' I

5'
6 7 8

Plaintiffs commenced their action against defendants, and each of them, within one year of P laintiffs' discov~7' the violations of Ore on's UTPA b Y of defendants, an d each of them. g

DEMAND FOR JURY TRIAL

9 10 11 12 13 14 15 16 17 18 19
Plaintiffs hereby demand trial by jury.

73.

PRAYa FOR RELIEF WHIItEFORE, plaintiffs pray for judgment against defendants and each of them as follows: As to plaintiffs' first, second and third claims for relief: a. For economic datnages in an atnount of at least $502,283.04 or such othei amount

to be proven at trial, together with prejudgment interest thereon at the legal rate of 9% per annum from the date the loss occurred until the entry of judgment herein; b. Non-economic damages for her pre-death bums, physical injury and psychological

20 terror in an amount determined by the jury to fairiy and adequately compensate Karlene J. 21 22 23
Willemsen for her pre-death burns, physical injury and psychological terror in accordance with
Oregon law, but m an amount not to eaceed $5,000,000; C. Non-economic damages pursuant to Oregon's wrongful death statute and/or

I I
~~

24' Oregon common law allowing prosecution of claims for the wrongful death of Karlene J.
i 25 i Willemsen, in an amount determined by the jury to fairly and adequately compensate her

26 i 27 28

survivors for whom the Oregon legislature and/or Oregon conunon law has provided a right to

compensation, in an amount determined by the jury to fairly and adequately compensate them for
>

their loss, however, in an amount not to exceed $3,000,000. Page 16 -[PROPOSED] THIRD AMENDED COMPLAIIVT
BOwERlO%Iawf~N.M. 3M MwOam Amd.9uito3Z0 L.I. aswegxk OR 7W
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1 2 4

As to plaintiffs' fourth clairn for relief: a. b. The ascertainable losses proven by plaintiffs, together with prejudgment interest Ot6er equitable relief pursuatlt to the specific powers granted to the court under Plaintiffs' reasonable costs and attomey fees pursuant to the Oregon UTPA. ALL CLAIMS FOR REI.IEF On all of plaintiffs' claims for relief, plaintiffs' reasonable costs and other relief as the

3 thereon at the legal rate of 9% per annum from the date of loss until the entry of judgment herein; 5 the Oregon Unlawfiil Trade Practices Act; and 6
7

C.

8 9 10 couit deems just and equitable.

11

12
13 14

DATED: July _, 2010

BowExsox 1.Aw Fu:Ni, P.c.

15
16 17 18 19

By:

Jeffrey A. Bowersox, OSB # 81442 Attorney for Plaintiffs

20
21 22 23 24 25

26
27
~

28
Page 17 -[PROPOSED] THIRD AMENDED COMPLAIlVT
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Servtees O(fered by the CTE CORPORATION - LIU TU FACTORYI

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Our records indicate that the fDltowing companies may manufarture simltar devioes. Click on the column headings below to resort the I[st. C[!ck here to export this list of companies.
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PAGE

+ =m:MyFax-EtowersoxLawFirm,P,C.To:Mai

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TM Cla(nms Serv[te. Inc.

80D E. Cabrao Boutsvard Poat Ofiirs Bax 7218 Peaedem Ceqfornla 81 #(S7916 Tdaphona:(826} 588-7800

TOKIOMAttINE
T HI C S

Facs>mikr W28136B-oose

I MILLEAGROOP.

Deaembet 12, 2008

Writer's Ditr,ct Dial:

(626) 568-7828

yIA. M,AIL ~D F_AX gO3152S4s33

JeffiEy BowMox, P.sq

BOwFMOX Lavv FIEtM

Snite 1000 111 S.W. Col,nmbis St Portlaad, Oregon 97201
Re.: Claicmnt; Our Clietlt hmLmm; Datie ofLAsa: TMCS Fi1e No.: DearMr. Bowersox:

BOW@PSOX LaW Fif Pl1, P.C.

RECEIVED
DEC 16 2009

Karlene WMemsemSafeco Inwrance Canvany CPE Ter,h Coip. Tokio Msriae N.E@HA Iaeutance Co., Ltd. (Taiwan) 2J011I008 08194001

We necentiy received your correspondenca dated November 26, 2008. As yoa maylmow, TMCS is bandling this matter on behalf of Tokib Mai<ine NEWA Ibstuao.ce, Co., Ltd (Tsiwen)Plem send us a copy of tbe praposad inspection protocol for our revicw. Picase also advise u8 of proposad inspection dates, as .yoa can eppreciatin you have sent your coaespondenoa dnring the holidayseason which mak our expert's ava4labi3ity moie di$YCult We were ready to proceedwith an inspeetion 8>Iat bad been noticed bycowr!seI for Safeco Inm:ance montbs ago unffl it was called off at the Ssst minute by yaur office, I believe. We obj ect bo any alterati,ori, deshvction or other umparg of any patenis2 evideace in this mstter. We resesrve ff e rigbtto seek.all available reraedies for spoliation of evidenae slwuld any evidence be alteied or datoyed ia aay way.

Vmy tndy Yoius.

..

7ur~en Suuck.

Anistent vi~
"

enc
PAG

,1

P.L. Divisioa' T1Vi Cbims Saviee. Inc

THIS DO WMEM CONTARrs CONFIDENTIAL AND/OR LEGALI.Y PRIVILEGED WORiuIATfON iNTENDEp ONLY FOA THE USE OF THF: INDAMUALf510R ENIn'!Y NAMEfl ON TNIS DOCUMENI: IF YOU ARE NOT THE NTENOED RE:CIPIENL YOU ARE HEREBY NOTIFIEO THAT ANY 016CLOSURE COPYRdQ, o16TRiBltRON OR THE TARING Of ANY ACTION IN RELUINCE ONlHE CONTENTS OF THRa PDCUiAENT IS STRICTLY PROHI8lTE0. IF YOl1 HAVE RECfJVED THIS DOCUMEAIT IN ERROA, PLE45E Nt1TlFY US BY TELC-?HONE lAdIEDIATELY, BO THJR WE CJUd ARRANGE FOR THE AETURN OFTHE ORIGtNAL DOCUMBQTSTO l}S AT ND CCST To YOU.

m:MyFax - Bowersox Law Firm, P.C. To:Mar;

he

ER-89

18:45 071i.:_ JGMT-04 Pg 56-100

?BOWERSOX LAW FIRM

A PItOFESSIONAL CORPORA'1'so1V

SUITE 1000 111 S.W. COLUMBIA ST. PORTLAND, ORECDN 97201

503.452.5858

I I

JetFrey Alan Bowersox

Facsimile: 503.325.4833

January 21, 2009

Via Email nrulleskbmsc-law.com l Original V' a First Class Mail

Molly Jo Mnllen Bodyfelt Mount et al

707 SW Washington St Ste 1100

Via Email rcyAhevanet. com Original Via First Class Mail Richard C. Pearce 921 SW Washington St, Suite 755 Portland, OR 97205 i a Va Email WhsC~ cvk-law.com Original Via First Class Mail Walter H Sweek Cosgrave VergeerKestertLP 805 SW Broadway 8th Flr Portland OR' 97205 Mary Hawkins United Seating and Mobility 13 300 Lakefront Dr Earth City, MO 63045 Via Email l(rye(~ a,thecamyaniagroun.corn Original Via First Class Mail Lori Frye The Campania Cnoup 111 Berry Street SE Vienna, Vir-ginia 22180

e
I I

Portland OR 97205 a Via Email 1eu'zen.suuck(~. tmclairsservice.com

Orlginal Via First Class Mail

Jurgen Suuck, Esq. Assistant Vice President TM Claims Services, Inc. P.I. Division Post Office Box 7216 Pasadena, CA 91109-731
a,lesterelectrical.cam Vfa Email mike(~ Vfa Email iimcalestemelectrical.cotn Original Yia First Class Mail

I I
I

Mike Schukar Jim Carrier Lester Electrical 625West "A" Street Lincoln, NE 68522

Re: Estate ofKarlene Willemsen Wiilemsen Fire Scene Inspection, Collection/Preservation of Evidence Greetings: Through an exchange of email we have now all agreed that the inspection of the fire scene, including photographing, collection, examination, testing and preservation of evidence will take place on March 10 and March 11, 2009 beginning at 9:00 a.m. at the scene of the fire, 9232 SW 5'" Ave, Portland, Oregon 97219.

I lk~

El(Hf B(T: PAGE ~-

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~=m:MyFax - eowersox Law Firm, P.C. To:Mai~ ne R

~;.. . .

ER-90

1 9: 4 5 07i.,~ .'JGMT -04 Pg 57-100

January 21, 2009 Page 2 ~

BOwEmOX LAw FhtM, P.C:

We have had some discussion about the protocol for collection, examination, testing and preservation of the evidence, inchuiing potential destructive testing of evidence and preservation of the evidence. We have not yet agreed to a formal protocol. Wally Sweek mendoned (and I think all of us agree) that we want to follow the National Fire Protection Association 921 standards. However, the standards are somewhat vague and certainly are subject to diverse interpretation. Therefore, in order that there is no disagreement or any allegation of spoliation of evidence, we will need to create a specific written protocol that addresse.s what evidence is to be collected, how it is to.be collected, how it is to be preserved until examination, the typc of examination that will bc undertaken of the evidence, the methodology that will be used to examine the evidence (including any destructive testing), specific provisions for the videotaping of the entire procedure (including the testing procedurres) and an agreement regarding the method of preservation of the c,allected evidence following its examination and testing. I have had some discussion with some of you about this process and establishing the protocol. There seems to be a general agrecinent that we can work up a rough form of the protocol in advance of our site visit. However, there also seems to be general agreement that the interested parties' individual experts will want to actually see the fire scene prior to finalizing the inspection, collection, testing and preservation protocol. With this in mind, we will begin circulating a rough draft of the protocol. On Mareh 10ie and 11', everyone who wants to enter the pr+emises will need to present state issued photo identification and print their name, company affiliation, interested party afFiliation and place their signature on a"sign-in sheet " The sign-in sheet wili acknowledge that the person entering has authority to act on behalf of the interested party identified by that representative on the sign-in sheet. Further, the sign-in sheet will contain a statement indicating that the representative and/or expert agree,s not to touch or remove any evidence on the scene unless that process is agreed upon by alI present and is videotaped. Each representative will, by signing in to the premises, consent to be videotaped (including audio) throughout the entire evidence inspection, collection, examination/testing and preservation during the joint process. ABer everyone has signed in and we have conducted an initial examination and photographed and/or videotaped the scene, we will then make any changes to the protocol that representatives and/or experts acting on behalf of the iuterested parties believe are necessary in order for them to adequately conduct their examination, write the appropriate reports andlor advise their clients and/or testify regarding the cause and origin of the fire and related matters. After the required changes are made to the protocol, it will be printed on scene and everyone who has signed in to the premises will be required to sign the psvtocol in order for us to go forward with the collection, testing and preservation of the evidence.

I
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m:MyFax - Bowersox Law Ffrm, P.C. To: Ma

R~

ER-91

1 s:as o7rL 1GMT-04 Pg 58-100

January 21, 2009 Page 3

BowBRsoX LAw FIRM, P.C.

I am sw+e you will agree that the intent of all interested parties is that everyone have a full and fair opportunity to view the same evidence a.nd to participate in the determination of how the evidence is collected, inspected, tested and preserved. The intent of this procedure is to allow every party a full and fair opportimity to have input to that process so that they can adequately advise their clients and/or prepare expert reports and/or testify in court without making any claim that they were deprived of an opporhwity to have input to the protocol. The final, signed protocol must be a consensus protocol. Please write back to me and indicate that you have reserved Mareh 10-11, 2009 on your calendar and that your expert has confinned his or her availability for tbe referenced dates. Please also confirm your agreement and your expert's agreement to the sign-in procedure and to the consensus protocol. I suggest that we begin with Waily's proposed dra@ of a protocol and that each of us send it to our expert for comment and additions so that we can circulate the rough draft of the protocol over the next couple of weeks. I would like us to have a final "rough draft" of the protocol in place by the end of February. At that point, we will make changes and have a final cwnsensus protocol after everyone has signed into the site and. had an opportxmity to deternaine what additional procedures need to be added to the prntocol. Thank you for your antiicipated cooperation in this matter. ~ 5incerely, BoweRSox LAw FtRm, P.C.

~ ~ ~

I
~

By: Jeffrey A. Bowersox JAB:kr Copy: Jeffrey Willemsen

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EXHIBIT PAGE

m:MyFax - Bowersox Law Firm, P.C. To:Maa~= 'ne Rayl

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1:45 071MT-04 Pg 59-100

BoWERsOX LA'VV FIRM

APROMMONAL CORPOItATION

r
1eTrcy Alnn Bawerwx

SUITE 1000 111 S. W. COLTJArIBIA ST. PORTLAND, OREGON 97201

503.452.5858
Facsimlle: 303.iii.4833

I
~ Copy Vla Federal Express
Jurgen Suuck

February 4, 2009
Oreglnal Via F`!r sl Class Matl Copy Yfa Cert~"red Mail Return Recetpl Reguested
Cert$ed No.: 7007 0710 0002 6249 5752

TM Claims Services, Inc. PI Division

PO Box 7216

Pasadena, CA 91109-7316
~ Re: Jeffi-ey Wlllenzsen, as Person4l Represerrtalfve oflhe Eslate ofKarlerre WWlllentsen, el al. v Imrocare Co;poralfoR, el aL Multnomah County Circuit Court Case No.: 0902-01653 Desr Jurgen: EucIosed is a Bummons and Complaint tliat has been filed in the above-refereaced matter. I previously enzailed you a copy of ths Complsint a$er our phone conversation today. You infarmed me that you would be contmcting an attomey on behalf of CTFJChiaa Terminal dc Eleatric, Inc. who would be appearing at the site inspection along with Patricic McGinley, fire cause and origin expert. Ptease proniptly inform CTEJChina Tersainal dt Electric Inc. of the pending lawsuit so that they make a tirneJy appearaace. ,

I
~ JAB:lsr Enclosures

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EXNIBIT PAG

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~=m:MyFax - Bowersox Law Firm, P.C. To:Mary(

Rz

ER-93

19:45 07fo+f~)MT-04 Pg 60-100

IN TBE CIRCUIT COURT FOR THE STATE OF ORBGON FOR TI>E COUNTY OF MULTNOMAH JEFFREY WILLEMSEN, as Personal Representative of No. 0902-01653 the Estate of KARLENE J. WILLEMSEN and JAMES WILI.EMSEN, Plaintii~'s;
V.

0 I I

I
I I I I

INVACARfi CORPORATION, a ftxeign corparation, UNITED SEATlNG & MOBILITY, LLC., a limited liability compatry, aIESTERN HfiALTH RFSOURCES. INC, dba ADVENTIST HFrALTH PERSONAL CARE SfiRVICES, a foreign corporation, CARE MEDICAL EQUIPMENT, INC., an Oregon corporation, KCM MARICETING, IIVC. dba MK BATTERY, a f)reign corporatian, CHINA TERMNAL 8c fiLECTRIC, 7NC., a foreign corporation, CTE CORPORATION, a foreign corporatdon, MOTION CONCEPTS, IAiC., a foreign corporation, PERPETUAL MOTION ENTERPRISES, LTD, a fcreiga corporation, and LESTER ELECTRICAL OF NfiBRASKA,INC., a foreign corporation, Defendants. China Terminal & Electric, Inc: To:

SUMMONS

No. 3 TCung-Chea Notth Road Liu Tu Ind'1 Park Keelung 206 TW

You a+o heRby required m apyem and defend dsa Camplelnt filsd agofn5t yw In a6ove ontkted oetioa wifhin thirty (30) days ftom the dau afse,via of this suamioes upan yau, aad In ~se afyaur Btilure to da aa, for wmit t>a~ p~ WftooyrMr the mlief demanded ia the Compluint ) a10. MOTIf:ETOTHH L16FICIVDAN?: ti;EAD THEBE PAPEHS CARI~UI.LYT L Yoo may be flabfo ror ettartmy Ite: in 16is ense. Slmtdd piaimiff in ihis case noi pmvWA, a jadpnort far reasanebla atimney fess wUl be anered against you, as pmvided by the agmeurcot to wbiclt dofaadaat aDegas you an: e pariy. Yau must "appear' ia this casr ar the alm side wi11 win
e00om611aally.

UTHOR FOR PLAINTIFF AT'iORNEY'S NAME / BARNO. (1F ANY) I11 S.W Columbia St Suite 1000

Yao mnst'lappear' in thls ease ar da: atlher side v+iU win adomatieaily. To uppenr" you must Rk with Qm comt a iegal payer wll ed artbtion or "eoawg" Tfie'tinat(oa` or'laasnver' awst 6e giveo to tke cotM cierk or adminis4u01e wttMa 30 days elanB with the nequimd 5ling ft a mwn be In pmpa Omn end bavo pmaf of savie oa the pleindffs auornqy or, If the plainitffdoes nof bave an aftamey, praafoftervice upon the plaintitl: lfyau tmve erly qleatrons, yau siwald seo an attamy immodiaidy. Ifyau aaed hdp in flnding an aoarney, you may oall Uro Oregaai State Bm's Lawyer Roitrtal Setvioe at (503) 684-3763 or tolF 6ee fn Orega at (00)
452-763G

ADDRESS Portlend.OR 972411 f5031452=5858 CITY STATE ZIP PHOAIE

'iRIAL ATTORNBY ff OTHBR THAN ABOYE BARNO. (1F ANY)

STATE OF OREGON, Couuty of Multnomah ) ss. 1, the undersipted atsmney of reaard for the summons in the above entitled action.

tiff~

and complete wpy ofthe original

TO THE OFFICU OR OTHER PERSON SFRV stmtmens togetherwith a true oopy of ihe complei which this aumtnons is diieated,:and tio make your you shall attacdi hereto.

directed to sarve a true copy ofthis

(s) or other legal eMig+(fes) to whom or up~a aFalsimi]ar document whicfi IM

I
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H1BET

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~=m:MyFax - eowersox Law Flrm, P.C. To:Mary(~ Rai

ER-94

9:45 0710(-) MT-04 Pg 87-100

IN TFIfi CTRCUIT COURT FOR THE STATE OF OREGON. FOR TiE COUNTY OF MULTNOMAH

I I I I I ' I I
I I I
~

JEFFREY WII.LEMSEN, as Parsonal Represetative of No. 0902-01653 the Eatate of 1CARL.F.NE J.1NlLLEMSEN and JAMES WILLEMSEN, Plainti6fs,
V.

Il1VACARE CORPORATION, a fareign corporation, UAIITID SBATING & MOBIIdTY, LLC., a(imited liability company, WF.STERN HEALTFI RBSOURC$S, IINC., tiba ADVENTIST HEALTI3 PERSONAL CARE SERVICP,S, a foteign corporation, CARE MI:DICAL F.QLTIPMENT,INC., an Oregon corporsiion, KCM MARICBTDdQ, INC. dba MK BATTERY, a foreign eorporatioq CHJA TERMIATAL & ELEC'IRIC, INC., a foreign cnrporation, CTE CORPORATION, a foreigt corporation, MOTION COAFCBPTS, INC., a foreign corporation, PBR.PET[7AL MOTI01d ENTERPRISES, LTD, a foreign corporaiion, and LESTFR ELECTRICAL OF NfiBRA.SKA, INC., a foreign corparation, To: C'TE Corporatian No. 3 Kzmg-Chen North Raad Liu Tu Ind'1 Park Kaehmg 206 TW

SUMviONS

'Yoa are baeby mqtilred tc appea aM defend the Cmpfabn ftted of this sommtms lqwn you, and in ca9a of pas failwe m do sa, fbr wnnt theu 1Y077CB 7'071lE D6RBNDAAr!': RBAD TEiFSB PAP2R8j CARBFULI.YI `` Yoa mey be Itable lbrattotney fees fn thls eosc. Sbould pJeirdi6'ia 4tnt ease not prevail, a Judgrment for ttewnahle atlomay fees wp16a aofined egaiau pou, as pmvided by ike eeeetrtent to whiah dJettdsrt ailspies you are a pariy. Yau mtst appeot' ta this cana orthe aiharside udll win aatamstioauy. Yoo amst'iffear" ia tdls case or the othar side mill vwin eutammiily. To appeal' you mast flle wifD the court a leW papar aankd a 1nasW or aasaer." 7he "aaottOn or "answea" mast be given to the oourt nierk ar
ad,niniskstar wi8dn 3o day6 aloag WiHr Bas raquirad fllBog fba n aaut be In proper torm eae boae pmf of mvioe on tlte plaiati@'s attomey ar, if the p1aMtlff doeb aot Imve an anatrtay, praof of sarviea upmn ihe piainIFF ]f you imva sny qiestmas, you ahouid sae mi sriomey immedletely. If ymu neid hdp iA 8adbig aa ettomey, ymr may coll liro Omgou staoe eea's

Qu ty (3o) days fram Iha dode ofsmiu iefdemanded in the Cotnplalttt.

KUWAZURfi OF AT70RNEY/AUTHOR F'OR PLAINTIFF L~y A. Bowersax. OSB No. 81442 A't'fORNEY'S NAME / BAR NO. (IF AN1) 111 S.W. Caluiabia Si Suiiz 7000 ADDRESS Pottlaad, OR 972011 (5031452-5858 C1T'Y STATB ZIA PHONB

TRIAL ATTORNBY 1F OTlM'I}IAN ABOVE BAR NO. (lF ANY)

lswym Reteoe] Savtoe at (503) 684-3763 cr taiMliee in CveM m{$Og~ 457r7636. ~

STATE OF ORBOON, Cotipty ofllriultnomab ) ss. I, the undmWSned atmrneyof record for tt suaunons ia fli~ abave -endaea action.

copy of t6e original

TO THE OFFICSR OR OTHM PERSON SERVING ---atummons togather wiffr a true copy of the complaint. wbich this bummons is directed, and io make your you sha11 attach hereto.

dfrecred to serve a dve copy of this (s) ar other tegeil eadty(itssytn tvhom or Yp)njPqarate simi1er dgctu>nertt w6ich

PAG

~=m:MyFax - Bowersox Law Firm, P.C. To:Mary

~ .,e R

ER-95

19:45 07104; Sf+AT-04 Pg 62-100

J2= Bowrsox
From: Sent: To: Sub(ea1: Ali (pardcufarly Jilty ~~ Dick Pearce jrcphevanet.com ] Saturday, February 07, 200912:25 PM Irg s~ 'Jil ~ nvcase4n6.com ; Jeffrey BLFpc.com,; idm BL1=pc.com ; 'Molly Jo Muilen';
'Su Ifryethecampariiagroup.com ;'Jim Carrier; mikelestereiectricaf.tom;

a RE: Willemsen

To refterate we don't think the room is the setting for opening the battery box since the wiring on the chair (we
~ thtnk) Is too fragile.

go

My recopection of the diagrams in the manuais shows different cable attachments on the top ot the battery house one for each battery. You might look into that, if you think that will help. If you have Inf orrnation that there is another battery manufacturer potentially out there please let us know imrnediatety to get them on board asap for the exam. 1 spent qutte a bft of time trying to get information out of invacare (WaBy) as to the components that rnfght be In the chair. As an exampie that is why CTE and Lester are both involved on the battery charger. Additionally, it was my understanding your expert wanted to look inside the battery housing to determine 'rf the
battery exploded/failed not to delennine ii the battery came from someone else.

It we need to invite someone else to the exam please let me know. Thank you for your consideration in the above

regard.
~ Dick Auom:y At Law Admitred in Oregon ancl Washington 921 S.W. Washington Street Suite 755
Portland,Ozegon 97205-2825

T:503.223.2966

F:503.294.7941

Emaii: rcp@hcvanct.com Federal Tax Identification No. 93-0741366

-- -0riginat Message----

Frrom: lill itoberts [matlto:roberts(glbodyfeltmountaom]

Sent: Friday, February 06, 2009 5:32 PM

To: Dick Peance; ivanv@case4n6.com ; Jeffrey@BLFpc.cwm; kim@BLFpc.com ; Molly 3o Mullen; Suuck, Jurgen; Ifrye@tfiecampaniagroup.com ; Jim Carrier; mike@lesterelectrfcal.com ; WafEer Sweek
Sabject: RE: Willemsen ~ AII,

Thank you for your email, Dick. Mally asked me to convey that, regarding the chair, we would simply like to open the battery box to look inside no destructive testing to verify the battery manufacturer.

Thank you, Jitl Roberts

EXHIBIT

N~ ~~

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ER-96

9:45 07ro(7'~GMT-OA Pg 63-100

~~ ~

BODYFELT ZIMIn UN T

Jill Roberts 707 SW Washington Street, Suite 1100 Portland, OR 97205 503-243-1022 Tel 503-243-2019 Fax roberts ObodVreltmount.com
PLEASE N07E: Our e+mad donahn has changed to ebodvfeldnamt.com TMa e-rtlall may aordaln confldentiel Infomwtlan whlch Is Oegaly prtWleged. The bdartnaUon is solelyforthe use of the addressee named e6ove. tt you are not the Intoded ne+iplent, eny disdosure, copying, diatributlon or other use of the cor#ems of thts intamiatlon ls sMctly prohibqed. H you have iecelved tlds e-man In emsr, plea.se notUy us by rerum e-me9 and delete thls message. Tlemk you.

From: Dick Pearce (maiit)o:ncp@hevaret.com ] Sent: Thursday, February 05, 2009 5:47 PM

To: ivanv@case4n6.com ; Jefl'rey@BLFpc.com ; kim@blfpc.com; Mally ]o Mullen; ]ill Roberts;'Suuck, ]urgen';

Ifrye@thecempaniagroup.com ; 'Jim Carrier'; mike@lestierelectrical.com ; 'WalfSer Sweek' Suibject: Willemsen

Greetings
I wrfte because the on-site investigation approaches. I thought I would throw some issues out on the tabie as most o1 you have not visited the scene so it will ba a toss up on what sounds reasonabie as a protocol unfil everyone sees the scene.

Regarding the chair that is sitting where it was found during the fighting of the fire, It is our thought that a crate wiil be built on a small pallet wtth a sotid floor and approx. 2' tall side walls. The chair will be lifted into the crate and secured to the side walls_ The chair will be exarnined later (outside the 10' h and 11 11' of March) in a lab
setfing.

The carpeting In the bedroom is covered with insuiation from the ceiling which was pulled down by the firefighters. Because of concem about metal parts being on the carpet and covered it is our thought that sections of the carpeting will be lifted off the fioor onto plywood where Ihe carpeting wiil be wrapped to keep all items on d1e carpet in piace. These sections of carpet grid marked into sections the size of the availabie x-rayfihn with a bit of overlap and then these sections will be x-rayed. When the x-rays are reviewed we shouid be able t,o identrfy the location of any object of Interest and we can go right to the area on the carpet to recover the item. In this tashion the potential important pieces will not run the risk of movement or loss I debris is moved off the carpet at
~ the house.

The thought is the pile of debris that has been removed trom the bedroom and is on the floor in the famiiy room will be evaivated visually first with a decision to be made as to whether the material can be culled at the sile
for pteces. I am Interested to determine If we can determine frWn what area in the bedroom the material plled in
the family room came from. If it Is determined there is concemed there is metal items of interestthat are in this

pile we will need to secure that material for x-raying as well. The other items are pretty easy to handle in cornparison such as eiectrical outlets, appliances and any fumiture. I should mention the bed in still in the room and it will be secured. By this letter l do not mean to cornmandeer the protocol process. I sirnpiy wanted to alert you to what I think can be done on-slte and what wiil need to be done later, together with my ooncem of potential for loss of evidence by culling through debris that may cause loss of items of interest. ~ I did not include in this emait many of your experts or, perhaps, any ot them so I will reiy on you to inform them of these ihoughts. I welcome any responses you may wish to express.
Dick Pearce
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IN TAE CIRCUTT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH JEFFREY WII,LEMSEN, as Pesonel ve of ti>o Esiate of RARLENE J. and JAMES WII.LEMSEN,
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Case No. 0902-01653

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INVACARE CORPORATION, a foreiga corparation; UMTED SEATING dt MOBILITY. LLC., a foreign limited liability com y, CHINA TERMIidAL dt EL1~TRIC CORP., a foreign corporation; C CTE TECH CORP., a foreign cotporation; MOTTON CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION EZTTERPRISES, LTD, a fot+eign cFpocation; PASS dt SEYMOUR, INC., a fareagn cmpo:alion; SIEMENS CORPORATION, a foreign corporation; SIFMENS IIVDUSTRY, INC, f/klas Sieneas Energy and Automation, Inc., a foreign cotpopation; SUMMBRS GROUP, INC., dba REXEL, a foreign ootporataon; and GAW ELECTRIC, 1NC_, en Oregon corporation,

DEFENDANTS CTE TECH CORP. AND CHYAIA TERMIIVAL & ELECTRIC CORP.'S RESPONSE TC PLAINTIPFS' FIRST REQUEST FOR PRODUCTIO RELATED TO THE ISSUE OF PERSONAL JURISDICTION

owersox Law Fdrm,

RECEIVED
MAY 2 5 2090

Defen dants.

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DEFENDANTS CTE TECH CORP. AND CHIIdA TERMINAL & ELECTRIC CORP: S RESPONSE TO PLAINTIFFS' FIRST REQUEST FOR PRODUCTTON REI,ATED TO TBE ISSUE OF PERSONAL JURISDICTION

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J 1'O: Piaintiffi and their Attorn ~,

~r A. Bowersoa.

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Defaendants CTE TECH Corp., improperly named as "CTE Corporation" and china Tenninai & Eleetric Corp., a prior business naine of CTE TECH Corp., and improparly named as "China Terminal & Electric, tnc., ,, (collectively refetred to as "CTE"N resgond to Plaiutiffs' First Request for Production related to the issue ofpersonal jurisdiction, upon idormation and belief,
as follows:

CTE has moved to dismiss Plaintiffs' acdon for lack of personal jurisdiction. In response, on July 16, 2009, Plaintiffs filed a motion witb the Court requesting additional time to conduct discovery on the limited issue of whether this Court can eraercise personal jurisdiction over CTl" 'Ibe Court granted Plaintiffs' motion and scayed the motion deadlines to allow Plaintiffs to conduct discovery on the narrow issue of personal jurisdiction. The personal jurisdiction inquiry is concerned with CTE's contacts within the State of Oregon. Under the Court's discovery order, Plaintiffs ane not entitled to conduct general discovery andlor discovery on the merits of this case at tlris junctme of the litigation. Similarly, Plaintiffs are not entitled to use "personal jeuIsdietion" as a pretext for obtaining documents and information regarding CTE's corporate struciure, business operations, finances, insurance, cant:acsts, claims haadling policies, product

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desigu and testing specifzcations, and the like, unless suoh information has a bearing on CTE's contacts within the State of Oregon. CTE objccts to Plaimtiffs' requests for production and interrogatories to the extem t}sry are overbroad and seek documents and information beyond the limited scope of the personal jurisdicaon issue. GENERAL OBJEC'1TONS

1.

CTE objects to these requests to the extent that they purport to impose obligations

on CTE beyond the Court's order allowing discovery on the limited issue of personal jurisdiction. 2. By responding to any requests, CTE does not agree or admit tln;t the matter stated

in the reque.sts is nelevant or material to this litigation or is admissible in evidence for any reason

Page 2- DEFENDANTS CTE TECH CORP. AND CHINA TSRMiNAL &. ELECTRIC CORP'S RESPONSE TO PLAINTIFFS' FIRST REQUEST FOR PRODUCTION RELATED TO TI-iE ISSUE OF PERSONAL JLTRISDICTION

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in this litigation. 3. CTE objecb to Plaintiffs' reque.sts t,o the extent that tbey reqnest disclosure of

proprietary information, trade secxets, or confidential infarmation, and CTE asserts e$ch and every applicable privilege and rule governing oonfideutiality of proprietsry information, trade secrets, and confidgntial business information to the maximum extent provided by law. 4. CTE objects to Plaintiffs' requests to the extent thai ihey are vague, ambiguous,
im.,ataiAl

uni.ntelligible, overly broad as to time and subjeot matter, seek irreievaut and/or

infomnation, and are not reasonably calcnlated to lead to the disoovery of admissible evidence on the limited issue of personal jurisdiction. 5. CTE objects to Plaintiffs' requests t,o the exteat that tia;y call for disclosure of

infonaation that is protected by the attomey-clieat privilege, any self-imestigation privilege, the attamey work-prvduct doctrine, or other applieable privileges, immttllities, or exemptions. 6. b CT'E objects to these requests to the extent that they call for the produation of

"an}~', "all" or "each" of a category of documents or information. Snch requests place an impossible burden on CTE which is far beyond tbat imposed by the FRCP or the Court's limited discovery order in this case. It is impossible to represent, even a8er a diligent seazch, that all, each or every document or thimg falling within a description can be or has been located. Documents may be kept in a myriad of locations or files. Many people may have handled thetn. They may have been moved frequently and may have beea arranged, reartanged or reordered. Documents may have been lost or m$y have been part of materials disposed of in accordance with a record retention program. Individuals with discrete lmowledge nclative to the existence or storage of doocuments may have left the company, tairing that knowledge with them. Therefore, CTE cannot wamant or represent that they have produced each or all of every document orthing of a type requested, only that they have produced those wtricb it could locate aft:er a reasonably diligent search. Any filrlher requirement is objected to as unduly bvrdensome. CTE objects tn Plaintiffs' requests to the extent thai they request dociuxnents or 7. Page 3- DEFENDANTS C'TE TFCH CORP, AND CI-IINA'TERMINAL 8c ELECTRIC CORP'S RESPONSE Tfl PLAIIITIFFS' FfRST REQUEST FOR PRODUCTION RELATED TO THE ISSUE OF PERSONAL JURiSDICTION

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informaiion not witbin CTE's possession, custody, or control, and as those terms are common ~ and legally defined under applicable law. CTE further objects to Plaintiffs' definition of those teans to the extent they are overly broad. ~ 8. CTE objects to Plaintiffs' requesb to the extent they seek infomaation or

documents as equally available to Plaintiffs as to CTE iasosar as such information is in the publicly.-available literature or otherwise in the public domain. 9. These "Gcneral Objections" are applicable to and incorporated in each of CTE's

cesponses, infra, as if specifically set forth therein. The stating of specif c objecxions to a particular discovery request shall not be construed as a waiver of CTE's "General Objeations" nor does the restatesnent of or specific refe:ence to aGenera.l Objection" in the response to a par6cular discovery request waive any other "General Objeotion." Additionally, unless otherwise specificaily stated, CTE's obj edions to eacl>< request apply to the entire request, including each and every subparagraph of the request, 10. A response that CTE will produce documents does not establish the existence of

such documents, but nierely indicates that CTE will produce such documents if any eatist. 11. The responses contained herein are made in a good faith effort to supply those

documents that are presently known, and which should in no way be to the prejudice of CTE relaiion to fiather discovery, research or analysis. ~ RESPONSES TO PLAINTIF'FS' REQUESTS FOR PRODUCTION REQUFST NO. 1: Any and all documents requested to be identified by Plaintiff s Fiist ~ ~ ~ Set of Interrogatories Directed to Defendauts China?erminal Bt Elechic, lnc. and CTE Corporation, also laiown as CTE Tech Coip. RESPONSE: This request is overbroad, unduly burdensome, vague, aznbiguous, protected from disclosure by the attorney-crient privilege and work-product doctrine, and ~ irrelevant, in patt, as to the limited issue of personal jurisdiction and/or CTE's contacts within the State of Oregon. Page 4- DEFSNDANTS CTE TECH CORP. AND CHINA TERMIIJAL & ELECTRIC CORP'S RESPONSE TO PI.,AINT7FFS' FIRRST REQUEST FOR PRODUCTION RELATED TO THE ISSUE OF PEItSONAL JURISDICTION

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REQUESTNO. 2: All fi9es and documents related to consumer claims, complaints and requests for warranty adjustments for every battery or ba4tery charging products manufactaced, distributed, leaxd and/or sold by you for use in the United States duting the time period Janvaiy 1, 2002 to the present. ('Ihis request ineludes your response to such clairns, complaints a.nd requests for warranty adjustments.) RESPONSE: This request is overbroad, unduly burden.some, vague, ambiguous, seeks materials protected from disclosure by the attorney-client privilege snd work product doctrine, and is irrelevaut, in psrt, as to the limited issue of personal jurisdiction and/or CTE's contacts within the State of Oregon. Consumer claims and eomplaints outgidc of the State of Oregon, if any, have no bearing on the limited issue of whether this Court ean exercise specific or general personal jurisdiction over CTE. Without waiving these or any other objections, CTE states that other than the filing of this complaint in this action, CTE has had no claims or complaints within the Stete of Oregon aad thus has no documents related to consumer claims or eomplaints within the State of Oregon. REQUEST NO. 3: All documents in any way related to your appfication for insuraace for produd liability coverage andlor other indemnity eontract in connecaon with the sale, export, importation, distribution or delivery of products manufactmd, distributed, leased andlor sold by you for use in the United States. This request specifically includes, but is not limited to the application made for insivance coverage with Tokyo Marine Newa Insurance. Tbis request covers docaments in any way related to insurance sought and/or obtained during the time period January 1, 2000 to the present. (Include all pol'icies, deciaration pages, excess policies, claim notices, emails and correspondence.) RESPONSE: This request is overbroad, unduly burdensonie, vagne, ambiguous, and irrrelevant to tbc Gmited issue of personal jurisdiction andlor CTE's contaets within the State of Oregon. Plaintiffs seek infornnation regarding insurance policies and coverage that have no bearing on this case, generally, ar the narrow issue of personsil jurisdiction. As worded, this Page S- DEFENDANTS CTE TECH CORP. AND CHIAIA TERMINAL & ELECTRIC CORP'S RESPONSE TO PLAINTffFS' FIRST REQUEST FOR PRODUCTION RELATED TO THE ISSUE OF PERSOTIAL JURISDICTION

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request seEks produdion of all insurence policies, applications for insurance coverage, aad correspondence with imm+nep companies over neffily a ten yeaz period. Without waivingthese or any other objections, CTE has not obtained any insurance policies fmm any person or entity in the State of Oregon. REQUEST NO. 4: All documents in any way related to bank accoiarts, wire trsnsfiers, ACH transfers and/or other payments for insluance policies re&renced in Request No. 3 above, and/or all docunaents in any way related to eny bank accounts or other fimds yon have on deposit in the United States of Amerlca. RESPONSE: This request is overbroad, nnduly burdeisome, vague, ambiguous, and is irrelevant to tbe lunited issue of personal jurisdiction and/or CTE's contacts within the State of Oregon. As worded, tltis request seeks produdion of ali of CTE's financial interests and holdings within the United States, and is in no way limited to CTE's contacts with Oregon or the limited issue of personal ju:isdiction. Witbout waiving tlwse or any other objeetion, CTE has no bank accounts within the State of Oregon. REQUEST NO. 5: All documents in any way related to your purcbase of any products fmm any sourrx in the United States, includiAg auy of its constituent states, including but not limited to products used in tbe manuf'actune and/or assembly of your products and/or delivery of your products to the United States- This request for production seeks documents related to the time period January 1, 2000 to the presenR. . RESPONSE: This request is oveabroad, unduly btu+densome, vague, ambiguous, and irrelevant, in part, as to the limited issue of personal jurlsdiction and/or CTE's contact.s within the State of Oregon. As worded, the request seeks doaumeats and information relating to products and transactions that have no connec6on to the Stote of Oregon and, therefore, have no bearing on the limited question of personal jurisdiction. Without waiving tbe,se or any other objections, CTE does not purahese products used in the menufacture andlor assembly of its products from
any Oregon entity. As such, CTE does not have any responsive documents relevant to the issue Page 6- DEFENDANTS CTE TECH CORP. AND CHINA TERMINAL & ELECTRIC CORP'S RESPONSE TO Pi.AIlNl'1FFS' FIILST REQUEST FOR PRODUC'iYON RELATED TO THE ISSUE OF PERSONAL JURySDiMON

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of personal jurisdiction. REQUEST NO. 6: All docur>Qeats related to distributnrship and/or ageacy aglreements, import andlor export agreemeots, purchase and/or sale agreennents and/or otlier,agreements and/or relationships between you and any person, andlor emity in the Umted States of America (fmcluding but not lisnited to Invacare Corporation and/or any other de5eadant to this lawsuit) related to yoar prodtuxs. T1tis request specifically includes, but is not limioed to, the following list of your customers:
(A) (B) (C) (D) (E) (F) (G) Komatsu Forklifl, U.S.A. Inc Pride Mobility Products Corp. Simrise Medical KCM Marketing, lnc. Invacare Invamex Division Pacific Crest Corporation Synetek Controls, Inc.

(li) Invensys Robersbaw Controls Co. RESPONSE: This request is overbroad, unduly burdensome, vagne, axnbiguous, and irrelcvant, in parc, as to the limited issue of personal jurisdiction and/or CTE's contacts within the State of Oregon. As worded, the requese seedcs documents and informstion relating to condracts, agreerneub, and transactions that have no connection to the State of Oregon and, therefore, have no bearing on the limited question of personal jurisdiction. CTE does not have aay distn'buirnship and/or agency agreernents, iatport and/or export agreemenis, purchase and/or sale agreements andlor other agreements and/or relationships with arry Oregon eutities. Tlierefore, CTE Las no responsive documents relevant to the linuted issue of personal jurisdiction. RfiQUEST NO. 7: To the exient not covered by an earller request all d=umenLs related to contracts, agreements, memorandums, or other writings betweeti yott and any U.S. person. RESPONSE: This request is overbroad, unduly biudensome, vague, ambiguous, and is Page 7- DEEENDANTS CTE TBCH CORP. AND CH1NA TERMINAL & ELECTRIC CORP'S RESPONSE TO PLAIlNTIFFS' FIltST REQUEST FOR PRODUCTION REI.ATED TO TI3E ISSUE OF PERSONAL .NRISDICTION

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irrelevant, in part, as to the limited issue of personal jurisdiction and/or CTfi's contacts vvithin the State.of Oregon. As worded, the request seeks documents and information relating to contcacts, ageements, and transactions that have no connection to ihe State of Oregon and, therefore, have no beaning on the limited question of personal jurisdiction in the State of Oregon. Tbe question of personal jurisdiction is conceraed only with CIE's contarts with the Smte of Oregon, not the United States in general. CTE does not have any distributorship andlor agency agreements, import and/or export agreernents, purchase andlor sale apreements andlor other agieements and/or relationships with aay Oregon emities. REQUEST NO. 8: To the extent not covered by an earlier reguest, all documents in any way related t.o the purchase andlor sale of any producrs by you to any of the defendants in this case, inchding but not linuted to Invacare, during the time petiod January 1, 2000 to the presenL RESPONSE: This reqaest is duplicative and/or subsumed by the overbroad temss of Request no. 6. See CTE's response to Request no. 6, above. REQUEST NO. 9: All doamne>!rts in any way related to your applioation for and/or grant of authority to conduct business in the United States of Amer3ca, or airy of its ststes, at sny time

during the period January 1, 2000 to the present.

RESPONSE: This request is overbroad, unduly burdensome, vague, ambiguous, and irrelevant, in part, as to the limited issue of personal jurisdiction and/or CTE's contacts within the State of Oregon. Without waiving these or atry otlter objections, CTE is not registered to conduct business in the State of Oregon and thus hes no responsive docume*tQ . REQUEST NO. 10: Documents snfficient to identffy the uniforrn ziesouoce locator

("URL") of any of your websites and/or pages available for access through its websites that disclose any of the following information: (a) name, addre,ss, location aad/or other contact information for yon; (b) products and/or materials offered for sale by yoa through yonr catalogue, website or any other distribution channel, where such praducts would be available in the Page 8- DEF'ENDANTS CTE 'TECH CORP. AND CHINA TERhtINAL & ELECTRIC CORP' S RESPONSE TO PLAINTIFFS' FIRST RF.QUEST FOR PRODUCTION RELATED TO THE ISSUE OF PERSON.AL JURISDICTION

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United States of America, inctuding any state within the USA;

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(c) "screen shots" (meaning image files of yoar website at one or more of the URLs) andlor oiher dncuments that indic,ate wheiher yom maintairbed an "interactive" website that allowed direct ordering, purchasing, requests for informstion (including downloads of infoanation and/or data) or other dynamic featares of the website that wouid atlow visitors to the site to requcst and/or obtain infomnation from yon by use of the website; This request for documeats covers the time period January 1, 2000 tD the present.
RESPONSE: This request is overbroad, unduly burdensome, vague, ambiguous, and irrelevant to the limited issue of personal jurisdiction and/or CTE's contacts wit6in the State of Oregon. See, Millemrfum Enterprttes, Lrc. v Mfltennrum Marsic, LP, 33 F.Supp.2d 907 (D_ Or. 1999) (Holding that the existence of a website is not sufficient to support exercise of personal jurisdiction over out of state defendant). In addition, rhe information requcsted is eqaally available to Plaintiffs as to CTE via the intetnet. Without waiving these or any other objections, CTE's website can be fvund at: http://www.ctecorp.com.tw/ or httu://www.ctecorQ.com.tw . REQUEST NO. I 1: Documents sufficient to identify the total annual gross sales (calendar andlor 5scal year) of yotrr products mannfactured, distribirted, leased and/or sold into the United States of America and/or any of its individual states (with identification of tle bn'alcdown by national and state-by-state sales) for the titne period January 1, 2000 to the

present.
RESPONSE: This request is overbroad, ivaduly bardensome, vagne, ambiguous, and irrelevant, in paTt, as to the limited issue of personal jurisdiction and/or CTE's oomtects wittin tlte State of Oregon. CTE's overall gross sales to the United States is irrelevant to tlze limited qttestion of whether CTE is subject to genera) or speciffc persone! jarisdiction within the State of

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Oregon. Without waiving its objections, CTE states thai is has no sales in Oregon and thus has no responsive documents. Page 9- DEFENDANTS CTE TECH CORP. AND CHINA TERMINAL & ELECTRIC CORP'S RESPONSE TO PLAIldTffFS' FIItST REQUEST FOR PRODUCTION RELATED TO THE ISSUE OF PERSONAL JURISDICTION

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REQUEST NO. 12: Lists of names and addresses of every person in the chain of ~ distribution between yoar manufacturing plant in China and the end user in the United States for all your products ('inciuding but not limited to batUery and/or battery charging products) , nianufactured, disEributed, leased andlor sold into the United StaLes during the time period January 1, 2002 to the present. ~ RESPONSE: This request is overbroad, zmduly burdensome, vague, ambiguous, and in,elevant, in part, as to the limited issue of personal jurisdiction and/or CTE's contacts wiihin the State of Oregon. The question of personal jurisdiction is concerned only with CTE's contacts witbin tle State of Oregon, not the United States in general. Therefore, the names and addresses of non-Oregon residents and entities are irrelevare. CTE does not have any dismbutoiship and/or agency agreements, import and/or export ap=mens, purchase andlor sale agreements and/or other agreements and/or relation,ships with any Oregon entities. As such, it bas no responsive doctunents relevant to the limited issue of peisonal jurisdidion. REQUEST NO. 13 : All f les anl documents related Eo sbipping of all yonr produats (including but not limited to battery andlor battery charging producis), from yonr manuficturing plaant in China to the end user in the United States, during the tim perlod January 1, 2002 ro the present. (lnclude all bills of landing, contracts with shipraent compnies, agreements with shipping companies, invoices from shipment companies and receipts for payment to shipment companies.) RESPONSE: This request is overbroad, timduly burdensome, vagae, ambiguous, and irrelevant, in part, as to the limited issue of peisonal jurisdiction and/or CTE's contscts within tle State of Oregon. The question of personal jurisdiction is concPxned only wit6 CTE's contacts withi.n tbe State of Oregon, not the United States in general. Therefore, docwnents related to tbe shipment of CTE products outside of the State of Oregon are irrelevant. CTE does not bave any ` distributorsliip and/or agency apee,meats, import andJor export agreements, purcbase andlor sale agreements andlor other agreements and/or relationslrips with any Oregon entiti,es. As such, it ~ Page 10 - DEFENDANTS CTE TECH CORP. AND CHINA T1aLMIIJAL & ELECTRIC CORP'S RESPONSE TO PI.AINTIFFS' FIRST BEQUEST FOR PRODUCTTON RELATED TO THE ISSUE OF PERSONAL JURISDICTION

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has no responsive documents relevaat to the limited issue of personml jurisdiction. REQUEST N0. 14: All files and docutnents reiated to ciearing all yoor pruducts (including but not limited to battery andJor battery charging prodncts) manufactured, distabuted, leased and/or sold in the United States through customs both into China and in the United States as well as any port in between. (Include all docuraents indicating tbe destination country or Port.) RESPONSE: 'Ibiis request is overbroad, unduiy burdensome, vague, ambiguous, and irrelevant, in part, as to the limited issue of personal jurisdiction and/or CTfi's contacLc within the State of Otegon. The question of personal jiuisdiction is concemed only with CTE's wntacts within the State of Oregon, not the United States in genend. Therefore, documents related to the clearing of CTE products through customs in areas outside of the State of Oregon are in+elevant CTE does not export any products directly into the State of Oregon. As such, it has no responsive docunaents retevant to the limited issue of petsonal jurisdiction. REQiJEST NO. 15: To the extem not covered by an earlier request, all f les and documents related to your relationship, contact or interaction with every person andlor entity in
the United States.

RESPONSE: This request is overbroad, unduly burdensonle, vague, ambiguous, and irrelevant, in part, as to the limited issne of personal jurisdiction and/or CTE's contacts within tbe State of Oregon. The question of personal jurisdiction is concerned oniy with CTE's contacts within the State of Oregon, not the United States in genesal. As worded, this request would compel CTE to produce all documents that refled any contect or communication with any person in the United States during an indefirrite amouirt of time, regardless of the location of such person or the content of such document. 'Ihe request is clearly beyond the scope of permissible discovery, generally, as well as the limited scope of discovery allowed by the Court in tiris case. Without waiving these or any other objections, CTE has no responsive documents relating to the State of Oregon. Page 11 - DEFENDANTS CTE TECH CORP. AND CHINA TERMIIr1AL & ELECTRIC CORP'S RESPONSE TO PLAINTIFFS' FIRST REQUEST FOR PRODUCTION RELATED TO THE ISSUE OF PERSONAL JURISDICTION

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REQUEST NO. 16: Any and all docvments reviewed, referred to or in any way relied ~ upon in answering PlaintifF's lnterrogatories. RESPONSE: This request is overbioad, unduly burdensome, vague, ambiguous, seeks documents protected by the attorney-client privilege and work-product doctrine, and seeks
documents and information that az+e irrelevant, in part, as to the limited issue of personal ~ jurisdiction and/or CTE's contacts within tlar State of Oregon.

REQUEST NO_ 17: Your document retention policy. RESPONSE: This request is overbroad, unduly burdensome, vagne, ambiguous, and irrelevant as to tbe limitefl issue of personal jurisdiction and/or CIE's contacts witban the State of Oregon. Without waiving its objections, CTE states that it bss a three year document reteurion
polir-y-

REQUEST No. 18: All early warning reports and early warning report type data collected, received or compiled by you for any of your products (inciuding but not limited to battery andlor battery charging products) manufactured, distributed, lessed and/or sold into the United Stabes during the time period January 1, 2002 to the present. RESPONSE: TUs request is overbroad, unduly burdensome, vague, ambiguous. and irnelevant a4 to the limited issue of personal jurisdiction and/or C[E's contacts within the State of Oregon. Warning reports and early vvarning report type data relating to reports or incidents outside of the State of Oregon, if any, bave no bearing on ttse timited issue of whether this Court can exercise specific or generdl personal jurisliction over CTE. 'lbis request is clearly directed to tbe merits of this ca.se and is not the limited issue of personal jurisdiction. REQUEST N0.19: Reports and resnits for all testing related to your products (including but not liauted to battery andlor battery charging products) manufactured, distributed, leased and/or soid into the United Statess during the time period January 1, 2002 to the present. (Include compliance and warranty adjustment testing.) RESPONSE: This request is overbroad, unduly burdensome, vagne, ambiguous, and ~ Page 12 - DEFETiDANTS CTE TECH CORP. AND CHINA TERMINAL & ELECTRiC CORP'S RESPONSE TO PI.ANi'1FFS' FIRST REQUEST FOR PRODUCTION RELATED TO THB ISSUE OF PERSONAL JURISDICTION

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irrelevant as to the limioed issue of personal jwfisdic,tion and/or CTE's contacts within the Statc of Oregon: T}Yis rerluest for testing information is clearly directed to the merits of this case and not

I I

the 1"united ssue of personal jurisdiction. Without waiving these or eny ather objections, CTE states that no testing is conducted within the State of Oregon. REQUEST NO. 20: All files and documents related to payment for all your prodttcts, (inctuding but not limited to battery and/or batbery charging products) manufactured, distribnted, leased and/or sold into the United States dnring the titne period January 1, 2002 to the present, (Ineludes invoices, bills receipts, bank records and any other document related to the me8iod of payment) RESPOIdSE: This request is overbroad, unduly burdensome, vague, ambignous, and

I
I

irrelevant, in pait, as to the limited issue of personal jurisdiction and/or CTE's contacts witbin the State of Oregon. As worded, the request seeks purchase and sales infornnation that have no relation to the State of Oregon and, therefore, have no bearing on the lirmted question of personal jurisdiction. Without waiving these or any other objections, CTE does not make any sales directly to any Oregon vendors or consumers aad, therefore, has no responsive docume.nts
related to the Staie of Oregon.

REQUEST NO. 21: AU emails, faxes, letters, memorandums, notes, and overnight parr.els exchanged between you and any person and/or entity in the United States during the time period January 1, 2002 to the present. RESPONSE: This request is overbroad, unduly burdensome, vagne, ambiguous, and irrelevant, in part, as to the limited issue of personal jurisdiction andlor CTE's contacts within the State of Oregon. The question of personal jurisdiction is concerned only with CTE's contacts

I I I

within the StaLe of Oregon, not the United States in generai. As worde,d, this request wouid compel CTE to gLoduce all documents that reflect any contact or communication with any person in the United States, regatdless of the location of such person or the content of suc5 document. The request is clearly beyond the scope of permissible discovery, generally, as well as the Page 13 - DEFENDANTS CTE TECH CORP. AND CHINA TERNIINTAL & ELECTRiC CORP'S RESPONSE TO PLAINTIFFS' F1RST REQUEST FOR PRODUCTION RELATED TO THE ISSUE OF PERSONAi.. NRISDICTION

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limited scope of discovery allowed by the Court in this case. Without waiving its objections, ~ CTE srates t!>lat it does not sell product or conduct business in the State of Oregon, and therefore, has no responsive documents for the State of Oregon. REQUEST NO. 22: AI3 tekphone bills showing aU calls made and/or received to

andlor from the Unfted States during the time period January 1, 2002 to the present
RESPONSE: '1'bis request is overbroad, unduly burdensome, vague, ambiguous, and irrelevant, in part, as to the limited issue of personal jurisdiction aad/or CTE's contacts within the State of Oregon. The guestion of personsl jurisdidion is concemed only with CTE's contacts within the State of Oregon, not the United States in general. As worded, this request would compel CTE to produce telephone bills for calls madelreceived that have no connection to the State of Oregon. Without wa.iving these or any other objections, CTE ha.s no bilts for telephone calls niadelreceived in the State of Oregon: REQUEST N0. 23: The specifications, formula and change ordeis for all your

products {'including but not limited to battery and/or battery charging products) manufiwuved, diseribated, leased and/or sold into the United States during the time period January 1, 2002 to the prese,nt. RESPONSE: This request is overbroad, unduly burdensome, vague, ambiguous, and irrelevant as tio the limited issue of personal jurisdiction and/or CTE's wntacts within the State of Oregon. This mquest for product specification infoYSnation is clearly d'uected to the meriis of this case and is not the limited issue of personal jurisdiction. REQUEST NO. 24: All files and documents for all adverasing and marketing of yoar

products (including but not limited to battery and/or bsttery charging products) manufactiued, ~ distributed, leased and/or sold into t6e United States during the time period January 1, 2002 to the present. RESPONSE: This request is overbroad, unduly burdensonie, vague, atnbiguous, and irrelevaat, in part, as tp the limited issoe of personal jurisdiction and/or CTE's contacts within the ' Page 14 - DEFENDANTS CTE TECH CORP. AND CIFDNA TERNIINAL & ELECTRIC CORP'S RESPONSE TO PLAINTIFFS' FIRST REQUEST FOR PRODUCTION REI.,ATED TO THE ISSUE OF PERSONAL JURISDICTION

~=m:MyFax - Bowersox Law Firm, P.C. To:PAar}`;

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18:45 0710

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State of Oregon. Without waiving these or any other object7ioas, CTE does not direct any advertising or marketing niaterial to the State of Oregon. REQUESTNO- 25: A11 documents which support your claim that you did not: (A) (B) Purposely direct actions toward the United States. Purposely make e.fforts to serve United States mark,ets;

(G) Pmposely avail yoarself of the privileges of conducdng business in the United
States;

(D) Expect your products to reach United States cansumers;

(E)Deliberately market your products in the United States; and

(F)

Reasonably anticipate being hailed into the courts of the United States,

RF.SPONSE: This"request is overbroad, unduly burdensome, vague, and ambiguous. VVithout waiving these or any otha objections, see CTE's motion to dismiss for lack of personal jurisdiction and supporting declaration of Peter Chen. REQUEST NO. 26: Any and all documcnts and literature delivered with your products (including but not limited to battery andJor baitery charging products) nianufactuc+ed, distributed, leased and/or sold into the United States during the time period ]anuary 1, 2002 to the present. RESPONSE: This request is overfiroad, widuly biudensonze, vague, ambiguous, and irrelevant, in part, as to the limited issue of personal jwrisdiction andJor C'I'Es contacts within the State of Oregon. Without waiving these or any other objections, CTE does not lave any distributorship and/or agency agreements, import andlor export agreenaents, purchase and/or sale egreernents and/or other agreements and/or relationships with any Oregon entities, nor does CTE direct any advertising or msrketing material to the State of Oregon Accordingly, CTE has no responsive documeots relevant to the iianited issue of personal jurisdiction. REQUEST NO. 27: All files and documents related to any and all intenetion andlor comnttuiication between you and Chiaese and/or United States of America customs, regardless of whether such communication was direct or tbrough an agent, regarding the export and/or Page 15 - DEFENDANTS CTE TECH CORP. AND Q3INA TERMINAL & II.ECMRIIC CORP'S RESPONSE TO PLAINTIFFS' FIRST REQUEST FOR PRODUCTION RELATED TO THE ISSUE OF PERSONAL NRISDICTION

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,.

ER-1 12

19 :45 071(1~GMT-04 Pg 79-100

import to the United States of America of any of your products (inciuding but not limited to battery andlor battery charging products). RESPONSE: This request is overbroad, unduly burdensome, vague, ambiguous, and irrelevant, in part, as to the limited issue of peasonal jurisdiction and/or CTEs contaots witbin the State of Oregon. Tbe queston of personal jurisdiction is concerned only with CTE's contacts

within the State of Oregon, not the Umted States in general. Therefore, documents related CTE's communications with Chinese and United States of America Customs are irrelevant and beyond the limit:ed scope of discovery related to the issue of personal jurisdic.tion REQUEST NO. 28: All files and doournents relat.ed to your United States assets, regardless of whether tltey are directly or indirectly held. (Include accounts payabIe and debts owed by United States persons and/or entities.) RESPONSE: This request is overbroad, unduly bui+densome, vague, ambiguous, and irrelevant to the limited issue of personal jurisdiction and/or CTE's contscts within the State of Oregon. As worded, this request seeks production of all of CTE's financial interests and holdings within the United States, and is in no way limited to CTE's contacts with Oregon or the limited issue of personal jurisdiction. Without waiving these or any other objection, CTE Las no assets within the State of Oregon. DATED this 19th day of May, 2010. MARTIN, BISCHOFF, TEMPI.ETON, LANGSLET & HOFFMAN FP Bv:

_..._. Anne S. Raybum,.,_ . #803680 .. _w..,._._._.., OSB . Mary

Of Attomeys for Defendants CPE TECH Corp. and China Tenninal & Electric Corp.

Page 16 - DEFENDANTS CTE TECH CORP. AND CHINA TERMIIdAL & ELECTRIC CORP'S RESPONSE TO PLAINTIFFS' FIRST REQULST FOR PRODUCTION RELATED TO THE ISSUE OF PERSONAL JURISDICTION
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CF.RTIFICATE OF SfiRVICE I hereby certify tbat, on tfiis date, I served the foregoing DEF'ENDANTS CTE CORP. AND CMNA TF.RIVWAL & EI.EC'd'RIC CORP.'S RESPONSE TO PLAINT1lFT'S' FIRBT REQUEST FOR PRODUCTiON RELATED TO THE ISSUE OF PERSONAL JURISDICTION on the following atoomeys: Jeflrey A. Bowersox Bowersox Law Firm P.C. Krose Woods I 5285 Meadows Road, Suite 320 Lake Oswego, OR 97035 Walter H. Sweek CosgmveVe~rgeer Keltez LLP ~ 805 Sw an~da~ay, 8 Floor Pordand, OR 97205 Attomey for Invacare Corporation, Motion Concepts, Perpetual Motion Eaterprises, Ltd. Ronald J. Clark
Bullivant [ Iouser Bailey PC
-

Richard C.Pearce
Atborney at I.aw 921 S. W. Washington Stceet, Suite 755 Portland, OR 97205 Attomey for Plaintiffs Jay W. Beattie Lindgay HaYt IVeil & Weigler LLP 1300 SW Fifth Avenue, Suite 3400 Portland, OR 97201 Attorney for Unitcd Seating dt Mobility Heather C. Beasley Davis Rothwell Earle et. al. 111 S.W. Fifth Avenue, Saite 2700 Portland, OR 97204 Attorneys for Defendant GAW Elearic, Inc.

I I I I

888 SW Fifth Avenue, Snite 300 Portland, OR 97204 Attomeys for Dekadant Pass 8t Seymour,

Ino. Ryan McLellan

Smith Fred & Eberhard PC 111 SW F'n'ttl Aven><ne, 43`d Floor Poriland, OR 97204 Attaraey for Defendant Summers Group,

Inc.

I I I 1 I

CERTIFICATE OF SERVICE

Mffitin, Bischo$ Taapfte, l.mrgsteta Hoffmen 11p BBQ SW F9h Avaue, Suime 900 Pas9m1k OR9T2.44 'thlephone: (303) 224-9113

RxrfSAi177A.9a71

m:MyFax - Bowrersox Lawr Flrm, P.C. To:Maryne R,

ER-1 14

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'

By ceusing capies thereof, addressed to each attorney's last known address, ead sea t by the following indicated method or methods: s D C1 0 by U.S. mail, 5rsi-class Postage PreFaid, from Portlsnd, Oiegon. by band delivery. by overnight courier. by electmonic ma'sl. MARTIN, BISCHOFF, TEMPLETON LAI+IGSLET 8c HOFFMAN LLP
,

DATID: May~, 2010.

By.

~ u./
Mary- e $: Rayb . B#803680 Steghen P. Yoshida,.OS #044588 Of Attomeys for Defendants China Terminsl & Electric Cbip. and CTE Teah Corporation

Marik, BiuhoO; T~er0. e~n~ langatetBe Fiofteo tLP . Ua sw FL% Avrnae, sdoe sQD
PedWnd, OR 97204 7blghone: (303)ZZC-3113

Far fSA71~~4A4'fl

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ER-1 15

I8:45 07tt~MT-04 Pg 82-100

B 4WERSaX LAQV' FIRM

A Pitoit&s31oNAI. Co$PORATION

SUITE 320
5285 MEADOWS RI?.

LAKE OSVEGO, OREGON 97035 503.452.5858

Jefltep Alan Bawereox Fecsirni#e: 303_343.6993

July 16, 2Q09

Honorable Janice M. Stewart US Magistrate Judge

1107 US Courthouse
1000 SW 3rd Ave

Portland, OR 97204 Re: Jeffrey Willemsen, as Personal Representative of the Estate ufKarlene Willsrmen,
et al. v. Invacare Corporation, et aL

US District Court for the Distrlct of Oregon Case No.: 3:09-CV-602-ST China Terminal & Electric (CTE) Motion to Dismiss for I.ack of PPxsonal 3urisdiotion Proposed Discovery Timetable Dear iudge Stewart: Mary-Asfne Raybum represents defendant China Termina] & Electric and CTE (jointly CTE has filed a motion to dismiss plaintiifs' claims against it on the basis of the lack of personal jurisdicdon. In accordance with the parties' prior request, you removed t3te heating date on defendant CTE's motion so t}iat plaintitfii cwuld conduot discovery related to the issue of personal jurisdiction. The parties have reached a general agreement (for the most part) about the fotm and time table for proposed discovery on this limited issue. The parties have some disagzeetnent on a few matters, but we bope those disag,reements will be resolved without judacial intervention. To the extent that we are unable to independently resolve those matters, we will addxess them during the FRCP 16 conference. Following is the parties' proposed discovery and hearing schedule, which we present to you foryour consideration. (Again, this propoeed schedule anticipates that the partie9 wiJl resolve thetr cunent disagreeanent related to some discovery ma.tters. If we are anable to do so without the court's assistance at our to-be-schoduled Rule 16 conference, the proposed schedule outlined below may need fltrther 'acijustment.) 1. Jaly 27, 2009: Plaintiff will serve discovery requests reiated to personal jurisdiction matters on defendants CTE.

EXHIBIi PkG
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Honorable Janice M. Stewart

July 16, 2009

BOWERSOX LAW FYRM, P.C.

Page 2

2.

August 31, 2009:.Defendant will nespond to the discovery request, including producing. respynsive.documents wit.hin the, time provided by the Federai Rules of Civil Procetlure, ffdefendant.needs additional time within which to respond to plaintiffs reqnest, counsel will reach an agreement regarding an extension of time that will allow defendant suf6cient time to properly respond. Assuming that defendant does not need additional time to respond and it timely produes docwnents responsive_to plaintiffs recluest (and further assunring that there is no discovery dispute between plsindfls and defendant regarding discovery), defendant will provide responsive documents and responses to the request for discovery by Monday, August 31, 2009. With regard to potentia130(b)(6) deposition notices of CTE personnel (Taiwanese citizens living in Taiwan), tbe parties dispute whether such discrnery is needed. However, if depositions are requested, we anticipate that courtparticipation wit] be tequired. Assuming defendant has been able to respond to plaintifFs' request for discovery by Augu.vt 31, 2009, and there sie no other discovery disputes, plaintiff' will . have 10 days from Augnst 31, 2409. or 10 days from the ti7ne any discovery dispute has been decided and resolved and responded to, to file their tesponse to defendant's motion to dismiss. Defendant has the statut.ory time within which to respond, unless defendant needs an extension of time. Thereafter, the hearing on the motion will be schecluled as soon as practicable and as permitted by the court's schedule ; hopefully by October, 2009.

3.

4.

I I I I

S.

6,

Thank you for your courtesy in allowing the parties tiine t.o create a discovery sehedule releRed to the issue of personal jwisdiction. We hope that the proposed schedule will provide adequate tirne for relevant and necessary discovery to be effieientiy and timely conducted so this matt,er can be fully and fairly briefed to the court. We again tlrank you for your courtesy in ailowing us to propose a briefing schedule and for your resetting of the hearing date in this matter so that the parties can fully and fairly brief the issue for the oourt's consideration. 1

I I I I 1

JAB:kr
Copy: Mary Anne Rayburn (via facsimile 303 224-9471)

JeFfrey Wiilemsen

~=m:MyFax - Bowersox Law Flrm, P.C. To:Mar4~

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JeB'rey A. Bowersox, OSB #8I442 Emaii: Je L a.com Bowacsax I.aw Firm, P.C. 5285 Meadows Roed, 5uite 320 Lake Oswego, OR 97035 Telephone: (503) 452-5858 Facsimile: (503) 345-6893 Aitorney for Plaintiffs

I I I I I

UNITED STATES DISTRICT COURT DISTRICT OF OREGON JERFREY WILI.EMSEN, as Personal Repaeseatative of the Estate of KARLENE J. UVII,LEMSEN and JAMES WILLEMSEN, Plaintiffs,
V. Case No. 3:09-CV-602-ST

v
I I I

INVACARE CORPORATION, a foreign corporati.on, UNTTED SFATING & MOBILITY, LLC., a Innited liability comPany, WESTERN HEALTF3 RESOURCBS, IT1C., dba ADVENTIST HEALTH PERSONAL CARE SERVICES, a foroign caiporalion, CARE MEDICAL EQiJIPMENT, INC., an Oregon corporation, KCM MARKETIN{3, IIVC. dba MK BATTERY, a foteign oorporalion, CHIIJA TF.RhIINAL & ELEC'CBIC, INC., a foceign corporation, CTE CORPORATION, a forPagn arrpora#ion, MOTION CONCEPTS, INC., a foreign onrpozation, PERPETUAL MOTiON BNTIsRPRISES, LTD, a foreign corpoiation, and LESTER ELECTRICAL OP NBBRASKA, INC., a foreign corporatioa, Defendants.

PLAINTIPF'S FIRST INTERROGATORIES TO DEFENDANT CHIMA TERMIIdAL & ELECTRiC, TNC, AND C'TE CORPORATION, ALSO 1QVOWN AS CTE TECH CORP

Page 1-- PLA]NTtPP'S FIRST INTERROGATORIES TO DEFENDANT CHINA TERIvIIAIAL & ELECrRIC, INC. AND CTE CORPORATION, ALSO KNOWN AS CTE TECH CORP
Boweisox Law Firm, P.C.
538s Maao.. ia sv3el2o

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TO; Defendant China Temsinal & Eler.tric, Inc. and CT$ Corporation, also known as CTE Tech Corp DEMAND IS HP,REBY IvTADE upon you to respond to each of the following discovery requests sepsrately and fully under oath witbin thirty days of the date of service and return the

original to this office. Type responses in the spaces provided, adding pages if additionaI space is ~ required. If informaation is not available witbin the time limits of the Civil Rules, you must answer each ~ intereogatory as fully as possible wifhin the time Jiniit and furnish additional information when it
becomes available. If there are sny additions, deletions or changes in the answers or information provided at any time pr'sor to trial, you are speoifically requested to immediately so inform the ~ piaintiff If additional infornnation is discovered between the tinae of making 9iese answers aad the time of trial, these inberrogatories are diraded to tiiat inforaiation. If suah information is not seasonably farnished within a reasonable time prior to time of trial, the und,ersigned will move at tzial to exclude 5om evidence any information known to or in the possession of said party or parfies, their auomeys, tbeir liability insurers, and their attorneys' and liability insurers' agents. The infornoation sougbt through these Interrogatories ineludes, but only those facts witbin the knowledge of Defendaat, but also .within the kaowledge and cwe, autody and control of

Defendant's attorneys, e,anployer, iiability insaraaoe csisiers, independent investigators or adjusfers.

PRIVQ.,~GE

If in maponding to, or failmg to respond to these interrogatories and these requests for production, you invoke or rely upon prriviiege of any kind, state specifically the nature of the
privilege; tbe basis upon whicb you in.voke, reply upon or claim it, including any statutory or

`W

Page Z- PI.AINTIFF'S FIRST 1NTERROGATORIES TO DEFENDANT CHINA TERNONAL & ELECTRIC, Ir1C. AND CTE CORPORATION, ALSO KNOWN AS CTB TBCH CORP

Bowetsox Caw Firnq. P.C.

5M kaQowe Rd.~ fluim3?D

t,be ornego. 08 fiols (W) 4S258fe FacaimQe t543> 345.6d93

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decisional reference and iden ~Y ali doauments or other informati inclu ~ contracts~ and , o~ communications which you believe to be embraced by the privilege invoked.

"Docament" .or "documents" includes, but is aot limited to, any material or informstion including all electronically storod infomnation ("BSI'7, which is contained in any information storageJretrieval systenn, whether that storage sysbem is considered to be a computer, removable hard. drives, flasb drives, nearfine data audlor offline storage, or otherwise (and whether utrlizing

megnedic, optioal, leser or othertechnology). Please produce aIl rosgonsivo data wheLher it is active
data, archival data andlor embedded data, including metadata. If any of the information contained in tbese requests includes any such msterial or infcnmatlon, this request ca11s fnr the complete producbion of sach matetial or information in its natave frnmat with accees to piaoprietary so$waQe, if twessary, to enable plaintiff to view the data, metadexa and other digltai characteristics of the docaments. As used in flris request, tho word "docnment" or "docoments" shall be given its bu+nadest possible meaning and ahall inctude but not be limited to all foims of docwments set forth in ORCP 43A(1). "Document" or"documents" ismoanttoincludewithoutlimitingitsgenerality, contracts, agreemeats, coirespondence, letteas, emai7s, reports, records, schetlules, diariee, calendazs, appointmentbooks, invoices,purchaseoideis, books,pamphlets, accountingrecords endvyorksheets, time slips, compnter inputs or outpute, charts, diagrmms, notea, estimates, swmnariea, appraisals, inveatories, minutes of ineetings and memoranda, including intercorporate, intrscorporate, interoffice andlor intraoffice memoranda, and memoreuda reg$rding conferance conversations or ~ telephone conversatione, any and all audio or video taped and/or digitally recorded, written, priated Page 3- PLAIN'I"IbF'S FIRST INTERROGATORIES TO DEFENDANT CHINA TER.MINAL & ELECTRIC, INC. AND CTE CORPORATION, AI.SO KNOWIV AS CTE TECH CORP Bowesox Law Fuuy P.C.
51E! ale.dopn Ra.. suibrm
late03ssgp,oR9703f fS03) 457rS8S8 Fawimtle (903) 34S-&93

__._~ ~ PAG E S
EXHlBIT

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P.C. To:Mary~~je R

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or typad matter of any kind or desaiption, ewless otheawise speeified herein, and plans, blueprint9, plot mqs, and other cngineering da#a. When a"document" or "docaments" inciudes correspondence between one or more , persons, the request is meant to include, rovithout linuting its generality, any document or documents given, sent, ot shown by one such parson to another or m ore snch persons, however ttansanitted or delivered, and whether or not netained by the recipient or recipients at the tnme of transmittal or delivery. Each dratt or version of eaah "document" or "doeuinem" is included withim the

defimtion as are aII attaahme,nts, exhW'bits and eaaclosures as well as a11 embedded data and/or metadata inclnded within all such drafts or versions.
"ComplWnt" means the Complaint which is tlne subject of this action. "Contaet Infol'mation" means full legal name as contained in the mtnpanys records; last known mailing address and telephone number, social secairity mumbeq an indiration whether the person is presently employed by you; and if the person is not currendy employed by you, the date
rm

on which his/her employment with you ended. "Conversation" means telephonic and faoe-to-face diseussion. "Copy" or "coples" means a true, accurate, and complete eopy of any and all of the docament(s) or material(s) requested, ua the native data format, size aad style, aud in the original
color.

"Defendant(s)" means ChinaTetAninal &Blectric, Ine. andlorCTE Corporation, also known

as C"i'E Tec3 Corp ("CTI;'l.

"Employee" or "em.ployees" means and includes any and all otu7entand former employees, managers, agents, and in house attorneys of an organization. Pa,ge 4- PI,AIIVTIFF'S FZRST INTERROGATORIES TO DEFENDANT CHWA TERMTNAI. & BLECTRIC, INC. AND CTE CORPORATION, ALSO gIVOWN AS CTE TECH CORP
Borwersox Law Firm, P.C.
s7as newM 8a... Smro32A lelceaaeyo:oR 9903s
(503)45bi838 Peaimile (503) 34S-6B93

DtHiB1T P,~GE

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"' Scen e" means the property aud bw'ldin at the lo cafion of p}amtits mjnry as sIIeged g Fyre , in the complaint which is the snbjed of tbis action. "Identify" or "identity," when refvrfng to a docsment or other wrttten comrnunication
means to state:

A.

The description of such docnment or writing in sufficient detail in order to ensble

it to be identified for purposas of isstung a Subpoena Duces Tecaum foc its produdion; B. C. D. , E. F. ~ The title and each subtitle thereoi; The date and number of pages thereot A brief snmmary of its contents; The identity ofthe anihor, each addressee, aad the distn'bmion list thereof; Tlae idendty of eacil person who wltnessed or was in a position to witness eaid

commuaication; Q. The identity of the person having custody theroof; The idemtity of each document refesmced by that document; and The source of or the identity of each peison who supplied any information

H. L

contained thenain. As used bereia, "idendfy," " dentlty" or "identiifcetion," wJen used in reference to
81atelnent, conver3Qllol4 or C01RN1fplication, II1CaII8 to stat0 (DVitll 7e8peCt to e$C.h St3tCSneilt,

conversation or oral commwiication), the date, plaoe, persons present andloi participating therein, and the snbstance of the statcment made by each person who was present at or paitiaipated in sucli a convezsation.

Page 5- PL.AWTIFF'S FIRST INTERROGATORIES TO DEFBNDAh"f CHINA TERMINAL & E[.ECTRIC, INC. AND CTE CORPORATION, ALSO KAiOWN AS CTE TECH CORP
Boweseox Law Firm, P.C.
$ZSS Madm+ Rd.. sdne37a Lakc oiwogo. 0897O3S (309) 4725953 Fam'vnik (503) 34S6B97

I 1
1

EXHiBIT

PAGE

S--

m:MyFax - Bowersox Law Firm, P.C. To:Mary,~e I

ER_ 122

19:45 071C~ ..~~t~AT-04 Pg 89-100

"Identify" or "identity" when referring to a recorded communication means to state; A. spoken wards; B. C. The date, tme s.nd place thereof; A brief description of said recorded eommunication in snfficient detail in ordea to The kind or form of all such recordings, trenscriptions, or memorislization of the

enable to be identified for purposes issuing a Subpoena Duces Tecum for its prodnction; D. The name, address and job title of the person who made the recorded

oommunication; and E.
conference.

Each action taken, decision made, or agreement reacbed at tiie meeting or

A recluest for the "descriptton" or Kdescriptions" or daat you "descxibe" a statement or conversation, constitutes a request for the following infonaatiott: the time, date and plax at ch a statement or conversebion o<xurred and precisely a.s each can be stated; the identity of each pa son who wiUnessed tbe statement or conversafion; the words spoken (or nonverbal expression thereof j by eech such party, desaribed as accurately as possible and set forth in substance where specific words oan not be recalled; and, an identification of such document that sets forth verbatim or refers to all or any part of such oonversation or statement Incfdent means the injury accident as alleged in plaintiffs complaint that occurred on Februsry 1, 2008. "Person" means, incluaively, an individual, firm, comPa41+, P~P~ corPoration, association, joint veittme, sole praprietorahip, business tmst, or ot.het enfityor organazation.

~ ~

Page 6- PLAINTIFF'S FIIZST IN'I'LRROGATORIES TO DEF'ENDANT CHINA TBRAiIINAL & ELFCIRIC,INC. AND CTE CORPORATTOI+i, ALSO KTiOW1V AS CTE 7'ECH CORP Bowexsox Law Finm, P.C.
m ewekw aa.,, s--'% ieke aswago, 0a9ao5
(~3) 4J268581i~1m0e (303) 345fi89]

EXHIBlT

2 __

._

~=m:MyFax - Bowersox Law Firm, P.C. To:RAary, . 1e

ER-123

19:45 071(f - ~MT-04 Pg 90-100

" Prodnct" means everyproduct of anyiandsol diatabutedaad/or exported into theUmted d,

States of Ameiica. "Statement" meaus any parsan's written comnumication, uzn=bed oral commumcation, or summary of oral communication. "You," "yoer" or "yours" means the person(s) aad/or entities tn whom these lnterrogatories is addressed, including agents, employees and/or contraators perfonning services on behalf of the person(s) andlor entities to whom this RFP is addresaed TNTERROGATORIES TNTERR04ATORY NO. 1: Identify, explain and descaibe the entire disthibution chain for each of your products (including but not limited to battery audlor battery charging produets) sold in the United States during the time period January 1, 2002 through the ptesent. (Include every product, importer, distnbuter, wbolesaler and retailer.) INTI3R.ROGATORY NO. 2: Identify, explain aad descnbed the fornt and method of paymeat you received for each of your products (including but not limfted to baattery and/or battery chazgi.ng produets) manufactured, distnbuted, leased aad/or sold in the United States during the time period January 1, 2002 through the present. (lnclude identlty of each specific financial institution by which fimds were transfexred to, througb or from yon.) IIVTBRROOATORY NO. 3: Ideatify, explain and desaribcd the form and method of shipment, from your manufacturing plant in China to the end user in the United States, for each of yonr products (meluding but not Iimited to battery andJor battaiy clisrging products) maaufactsued, distnbuted, leeaed andlor sold in the United States during the time period J anuary 1, 2002 through the present. Page 7- PLAINTWS FIRST 1NTBRROGATORIES TO DEFENDANT CEiINA TERMIIVAL & ELBCTRIC, INC. AND CTE CORPORATION, ALSO KNOWN AS CTE TECH CORP
Boweraox Law Firm, P.C.
s28! Mendoiva Rd., Soiba310 4ke oncgo.OB 97G33
. (307) 432-5878 haimd0 (303) 345-0993

EXFI!IBIT
PAUE

_~_
~

=m:MyFax - Bowersox Law Firm, P.C. To:Mary~

ER-124

i s:as o7rQ~MT-04 Pg 91-1 D0

1NTERROGATORY NO. 4: Identify, exFlaia and describe the t:otal qvantity and vohune of each of your products (includ'mg but not limited to battery asid/or battery duarging products) manufactured, distrlbuted, leased and/or sold in the United States duoring the time period January 1, 2002 through tbe present. (Categorize by at least the year, brand, size, price, importer, distnbutor, wholesaler and model; aiso include any corresponding DOT, FCC and/or PDA numbecs.) INTERROGATORY NO. 5: Identify, explain and descn`be yoar total gross rceipts in tenns of United States wrrenoy for each ofyourproducts (including but not limitedto battery and/or battery charging products) manufaatnred, distributed, leased and/or sold in the United States during
No

the time period January 1, 2002 through the present. (Categorize by at least the year, brand, size, price, importer, distributor, wltolesaler and model; also include any corresponding DOT, PCC and/or FDA numbers_) INTBRROGATORY NO. 6: Identify, explain and descnbe, by volume and gross receipts,

~ tbe petcentage of eacli of your products (iucluding but not limited to baitery and/or battery charging products) expaxted to the Unitetl States during the tune period January 1, 2002 through the pramt. (Include the method of calcalation and source of data relied upon.) IIVTBRROGATORY NO. 7: Identify, eaplain and descnbe every wmranty, ('mclude eaVess, implied orsitnpiy an agreementto make adjusdnents), delivered with eacch of yoarproducts (including but not limited to battery and/ar battery oharging pmduct.$) manufactured, disbnbuted, leased and/or sold in the United States during tbe time period January 1, 2002 througb the preeant and descn'be how you carried out your wwranty obligations for every claim submntted, regardless of whether it was accepted or rejeeted.

Page 8- PLAIr'TIFFS FIRST INTERROGATORIES TO DEFENDANT CHINA TERMINAL & ELECTRIC, INC. AND CTB CORPORATION, ALSO KNOWN AS CTE TBCH CORP
Bowecsox Law Fium, P. C.
5s8s rdmdasne Bd-, soitel2o rjkc ormogN ox wMs (JOi) 452-5858 Famlmik (509 ) 3454197

~=m:MyFax - Bowersox Law Firm, P.C. To:Mary, 'e R :

ER-125

19:45 oe !.: SMT-04 Pg 92-100

WTERROGATORY NO. 8: Idenbify, explain and descrIbe all eartywarning reports and early warning report type data coUecbed, received or compi]ed by you for each of your prroducts

I I I I I I I ' I ' I I I I

(including but not limited to battery and/or battery charging products) manuhcuutd, diatn'buted, leased and/or sold in the United States during the time period January 1, 2002 through the present. INTFRROGATORY NO. 9: Identify, explain and de=ibe every pwduct iiability insuraace poliay or indamnity contract applied for, obtained and/or maintained by yoa during the time period Jenumy 1, 2002 through the present. INTERROGATORY NO. 10: Tdentitify, explain and desenbe every etep, act or adion taken to clear eacb of your produots (including but not limited to battery and/or battary cl>argiugproducts) maaufactured, distnbuted, leased andlor sold in the United States (during the time period 3anuary 1, 2002 tbrough thepresent) through mtoras both in the United States and China as well as anyport in betwee.n. I1ITBRROGATORY N0. 11: Identify, explain and descnbe every eff+ort or attempt to market, advertiae snd sell or increase sales of each of your products (inclvding but not limited to battery and/or battery charging products) in the United States during the time period January 1, 2002 t}nough the pzesant, regardless of w6ether such efl'rnt or attempts were made directly by you or by a distributor or agent you elaim did not act on your behal INTERROGATORY NO, 12: Identify+, eaplain amd describe the full nahue and extont of your relafionship to every United States person and/or entity that does business in the United States.
// // /J !/

Page 9- PL.AINTIFF'S FIRST INTERROGATORffS TO DEFENDANT CHINA TERMIIIAL & ET.BCTRIC, INC. AND C'1`E CORPORATION, ALSO KNOWN AS CTE TECH CORP
Bowetaox Law Fism, P.C.
S67 Mwdowi Rd.,. 8daM0
Lalm Owe)po.OR 47a75 (501)151S8S8 Fathib (M) 34S4697
.

'SuI SIr

.-- .

=m:MyFax - Sowersox Law Firm, P.C. To:PRary'~e Rayl

ER_ 12(

1:45 07101' ~MT-04 Pg 83-100

IWTERROGATORY N0.13: Identify, explain and descxi'be every contract, meenoranducn, agreement, letter, fax or email in any way related to every United States person and/or entity that does business in the United States that you had any contact with or sold any products (including brrt not limited to battery and/or battery charging products) to during the time period Jeanary 1, 2002 thmougb the present. IIdTERROGATORY N0.14: Identify, explain and describe everyinstance where any claim or dispute involving you is or was before any United States Court, Tribunal, Arbitration FoTum, Arbitration Pmel and/or Mediator. INTERROGATORY NO. 15: Identify, explain and descn`be everp castomer complaint, claimn or allegation of product defed and/or failure relat.ed to your produots (inoluding but not limited to battery and/or battery chargint; produats) manufaatured, distributed, leaqed and/or gold in the United States during the time period January 1, 2002 through the present and what steps, if any, were t.aken to resolve the complaint, claim or allegstion of defect and/or fat7ure, Dn"ERROGATORY N0. 16: Idenlify, explain and descnbe your ownersbip, corporate, mauagerial, operational, and divisional strrnctnre for the time pe riod January 1, 2002 through the
,

present. (Include the names of all officers, directors, managers, owners, foremen and divisi(n beads.) INTERROGATORY N0.17: To the extemt not covered by an earlier intemogatory, identify, explain aAd descn'be all interaetion between you and the United States Customs and any United States governmeat entity you had any contact with dwing the titne period January i, 2002 through the present, regardless of whether such contact was dfreci or thr+ougli an agent.

Page 10 - PLAINTIFFS FIRST INTBRROGATORIES TO DBFLAIDANT CHAiA TERMINAL & ELECTRIC, INC. AND CTE C01tPORATION, AISO KNOWN AS CTE TBCH CORP
Bower&ox Law Fimi, P.C.
5183 Mwdo" RQ.. sw0ai2D
3aMo OaweeM OR 97035

(iO3)4S2385B towinHa(JW)34W9J

IX;9fBiT-

PAGE_~~ ~
~

~:m:MyFax - Bowersox Law Flrm, P.C. T o:Mary( '~ Rai

ER-127

9:45 07101! 3MT-04 Pg 84-100

IIVTERROGATORY NO.18: Identify, explain and descnbe anyttting and everyt>zing done,

' I I I I I I t I I I I I I I

which made or confirmed the compliance of your products (includin,g but nct Imuted to battery andlor battery charging products) with any United States law, Federal regulation, andJor United States-based testing audlor certifi=on peocedure. INT'ERROGATORY NO. 19: Identify, eaplain and descrlbe every call, email, letter, fax, overnight parcel, or visit between you and any United Statea peraon and/or entity which does business in the United States. (lndude visits by your representatives to the United States and United States person visiting your manu.facxuring plants, distribution centers and/or headqnarters in China.) IIVTERROGATORY NO, 20: Identify, explain and describe every fact to support your claim that it did not purposely direct actions toward the United States; purposely make effiorts to serve United States markets; purposely avail yonrself of theprivilege of wnductingbusiness in the United States; expect each of your produets (mcluding but not lirnited to battery and/or battery cbarging produds) to reach United States consumers; debberately merket yoar products in the United States; and reasonably anticipate beang hai7ed into the courts of the United States. INTBRROGATORY N0. 21: Identify the person or persons most knowledgeable about; volume of eanh of yowr produots (inciuding but not limited to battery and/or battery aharging products) nianufactured, distn'buted, leased andlor sold in the United State,s as compared to other sales by quantity and gross revenue during the time period January 1, 2002 through the present; the ent9re distribution ohain for each of yosr products (ineluding but not liomited to battay and/or battery chargmgproduds) manufactured, distributed, leased aoad/or eold in t.beUrrited State,s duringthetime period 3anuary 1, 2002 through thepresent; insurance; markcting and advertising of battery or battery charging pYnducts marrafachaed, distributed, leased and/or sold in the United States during the tiune Page i l- PLAINTIPF'S FIRST IINTERROGATORIES TO DEFENDAN'i' CHINA TERMIIdAL & ELBCTRIC, INC. AND CTE CORPORATION, ALSO KNOWN AS CTE TECH CORP
Boweraox Law Finn, P.C.
37e5 Alatdo,riRd..9uir310 Leke Osrego. oA 9V33 (S0.i) 431-3838 Faahdle (303) 3434B43

~m:MyFax - Bowersox Law Flrm, P.C. To:Mary; .;' Ie F

ER-128

~ 19:45 07lCJ ., r sMT-o4 Pg 85-100

peziod Jannary l, 2002 through the present; shipmeat of each of your products (incheding but not limited to baftery and/or battery chazgi>sg produrxs) from China ail the way through tc the end user in the Uaited States duzing the time period January 1, 2002 through the present; payment and invoiaing for each of your pmducts (including but not 1'united to battery sadJor battsry charging products) manufaatured, distnbuted, leased and/or sold in the United States diaing the time period Jaauary 1, 2002 through the present; your document, $ling and retention system; your entire corporat-, operational, managerial, ownership and divisiona] struchme; all wacrauty claims and consumer complainrs and how such daim.s and complaints were adjusted or respondad to; clearing each of yoar products (inoluding but notlimited to battery and/orbaitefy chargingproducts) thmugh cxistoms both in China aud the United States es well as any port in betwean; and the contcacts and relationships between you and United 3tates distriibutors mnd persons. IlTTERROGATORY NO. 22: Identify the state in which you and/or any person who imporbed, manufactured, distributed, leased and/or sold each of your products (inoludimg but not limited to battery end/or battexy charging products) in the United States during the time period January 1, 2002 through the present was incMorated, regi.stered to do business, maintained an office, paid taxes, maintained a retail outiet, sent invoices from sofieited bus-iness, owned and/or leased property, held bank accounts andlor coliected or received funds advertised and/or tzaveled to. DATSD: Ju1ya, 2009 Ba C. o*w

By:
J, OSB # 81442

Attorney for Plainti$'s

Page 12 - I'LAINTIFF'S FIRST INTERROGIATORIlS TO DEFENDANT CHINA TERMINAL 8c ELECTRIC, INC. AND CTE CORPORATION, ALSO KNOWN AS CTE TECH CORP Bowersox I,aw Fiim, P.C.
$28.5 bhudowl R0... 9oflp320

lake OoNagq OR 91039

(503)132-SB38AImUe (503) 345.93

EXTB':T

~=m:NtyFax - Bowersox Law Flrm, P.C. To:Mar~ -~e R,

ER-129

19:45 071Q(MT-04 Pg 86-100

DECLARATION OF SERVICE i hereby certify that I served, on the date set forth below, the foregoing PLAINTIFF'S FIRST INTERROGATORIES TO DEFENDANT CHINA TERMI1dAL & ELECTRIC, INC. AND CTE CORPORATION, ALSO iCNOWN AS CTE 'i'ECH CORP via the servlce methods indicated below:

I I

Waltea H. Sweek Co99grave Vergeer ICester LLP 805 SW Brnadway, 8th Floor Portiand, OR 97205 Facsimile: Attorney for Invacm Co poratton, Motion Concepts, Inc. ond PerpeWal Motion EnterprLses Jay W Beattie Lindsay Ha rt Neii & Weigler I.LP 1300 SW 5th Ave St~e 3400 Portleud OR 97201 Atiorney for Urrfted Seaating c4c Mobility, LLC Molly Jo Mullen Bodyfelt Mount Stroup & Chamberlain L.LP 707 S.W. Washington Street, Suite 1100 PorHand, OR 97205-3528 AttorneyforKCMMarketing Inc., dba MK Banery Macy-Amie Raybum Martin Bischoff Templeton Lanplet & Ho&nan I.LP 688 SW Sth Ave, Snite 900 Portland, OR 97204 Attorrsey for CTE Tech Corp and China Terminal & Electric Corp Lawre,nce J Beok 621 SW Morrison Ste 1250 Portland OR 97205 Attorney for Lester Eleetrieat of Nebraska,
Inr_

0 ByHand Delivecy u By U.S..mad 0 ByFacaimile u By Email Attachaient

p g. Haad DeGv gy U.S. Ma~1 ~ u By Fac~imile u gy F~_Attachment

p B Hand Deliv , u By'U.S. Mail ~ p By Facsimile u By gm~ Attachment

E] By'Hand Delivery u ByU.S. Mail p ByFacsimile u By Email Atitachment

u By Hand Deiivery u By U.S. Mail O By Facsimile p By Email Attachment BowERsox LAw FntK p.c.

DATED: Jnly 29, 2009

By:

&"alj?, berly
1- IT,r
~

I I
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Page 1- DECLARATION dF SERVICE

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~=m:MyFax - Bowersox Law Firm, P.C. To:AAare Ray ,

ER-13O

MT-04 Pg 97-100 ~ a6 071Cr -:

nwowa J
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Date: 10/15/07

Tine: 14s16

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14150
ORDSH-BIUMHRS CUSTCMM PO#

63045
ORDER DATE BBIP DATB

856605255-4188268

186410R

10/11/07

10/10/07

MAI4IPB9T ID: 856605255-4188268-001 SNTffiZPRT.6L: 75720

Messages:
TAG: WILLSd16BaT MUtLEM iTlIK HUl!RISR ~D DE9CRIPTION ORDER QZ'Y (UNITB) SHIPPBD PC8/PRd QTY (OATITS) (DNIT6) .

8566.05255111
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90 AMP Controller ,MPJ P1us 14ultiple UBF~R WSIC~IiT tmlih;R'` 14 IN X3 YN loOAM F~^'

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IXHIBiT-2 -1 PAGE

=m:IVlyFax - F3owereox Law Firm, P.C. To: Mary f~

ER-131

19:45 0710(

NIT-04 Pg 100-100

BowERsox I.Aw FIRM

A PROFESSIONAL CORPORATION

SUTTE 320 5285 MEADOWS ROAD LAKE OSWEGO, QREGON 97035

503.452.5858
Jeffrey Alan Bowersox Facsimile: 303.345.6893

July 8, 2010
Via Faesimile

Nicholas E Wheeler Cosgrave Vergeer Kester LI.P 805 SW Broadway, 8th Fioor Portland, OR 97205
Re: F,stare of Karlene Willemsen, et al. u Invacare Corporation, et aL

Multnomah County Circuit Court Case No.: 0902-01653 Dear Nick: This letter confirms our telephone conversation today. Plaintiffs wish to file copies of the Master Supply Agreement between Invacare Corporation and CTE Corporation as well as the exhibits that were provided to that agreernent and a separate certificate of insurance between Fubon Insurance Co., Ltd. listing China Terminal8t Electric Corp. as the named insured. These documents have been marked confdential by Invacare. The Bates range for these documents is: INV003220-IlVV003235. You have informed me that you have no objenrion to these documents being served upon the parties to the litigation because they are either signatories to the stipulated protective order or because they already have these documents (in the case of CTE). Thank you for your courtesy in this regard. Please consider this letter a formal request pursuant to the stipulated protective order that Invacare agree to allow the filing of the above-referenced documerits or that lnvacare take appropriate adion to obtain leave from the court to establish that the documents be filed under seal. As you know, hearing on this matter is set for July 30, 2010. It would be my hope that this issue can be fully resolved prior to that time because it is important to plaintiffs that the referenced documents be in the court's record in time for Judge Baldwin to review them prior to the hearing and consider them in reaching his decision regarding the CTE defendants' motion to dismiss. Thank you for your courtesy in promptly addressing this matter.
~

.C.

JAB:1Q Copy: All Defense Counsel (via facsimile) Richard Pearoe (via facsfmile)

I I I I I ' I ' I I
'

CERTIFICATE OF MAILING/SERVICE I certify that I filed the original and one copy of the EXCERPT OF RECORD, VOL. 1(ER 1- 131) by hand delivering to: State Court Administrator Supreme Court Building 1163 State Street Salem, OR 97301-2563 on February 15, 2011. I further certify that I served one copy of said Excerpt of Record, Vol. 1 (ER 1- 131) by mailing, via first class mail, postage prepaid, to: Jeffrey A. Bowersox The Bowersox Law Firm PC 5385 Meadows Road, Ste. 320 Lake Oswego, OR 97035 Attorney for Plaintiffs-Adverse Parties Richard C. Pearce Attorney at Law Suite 755 921 S.W. Washington St. Portland, OR 97205 Co-Counsel for Plaintiffs-Adverse Parties Walter H. Sweek Cosgrave Vergeer Kester LLP 805 S.W. Broadway, 8th Floor Portland, OR 97205 Attorney for Invacare Corporation, Motion Concepts, Inc. and Perpetual .Motion Enterprises Jay W. Beattie Lindsay Hart Neil & Weigler LLP 1300 S.W. Fifth Ave., Ste. 3400 Portland, OR 97201 Attorney for United Seating & Mobility, LLC Ronald J. Clark Bullivant Houser Bailey PC 888 S.W. Fifth Ave., Ste. 300 Portland, OR 97204 Attorney for Pass c& Seymour, Inc. Heather C. Beasley Davis Rothwell Earle & Xochihua PC 111 S. W. Fifth Ave., Ste. 2700 Portland, OR 97204 Attorney for GAW Electric, Inc. Joshua P. Stump Harrang Long Gary Rudnick, PC 1001 S.W. Fifth Ave., 16th Floor Portland, OR 97204 Attorney for Siemens Industry, Inc.

1
, ~

I I

I
~ Christine F. Miller Admitted Pro Hac Vice Julia T. Farrell Admitted Pro Hac Vice J. Claire Todorovich Admitted Pro Hac Vice 190 Carondelet Plaza, Ste. 600 St. Louis, MO 63105 Ryan McLellan Smith Freed & Eberhard, PC 111 S.W. Fifth Ave., 43rd Floor Portland, OR 97204 Attorney for Summers Group, Inc. The Honorable Richard C. Baldwin Multnomah County Circuit Court Multnomah County Courthouse 1021 S.W. Fourth Ave. Portland, OR 97204 Judge

I , I I I I I , I I I I

DATED this /S - day of February, 2011. MARTIN BISCHOFF TEMPLETON LANGSLET & HOFFMAN LLP

By

,
Mary-Ann S. Rayburn, O B No. 803680 Jonathan M. Hoffman, OSB No. 754180 Joan L. Volpert, OSB No. 803942 Attorneys for Defendants-Relators

I I I I I ' I I I e I

IN THE SUPREME COURT OF THE STATE OF OREGON JEFFREY WILLEMSEN, as Personal Representative of the Estate of KARLENE J. WILLEMSEN and JAMES WILLEMSEN, Plaintiffs - Adverse Parties,
V.

VUg

15 2p11

Supreme Court No.

SC S
Multnomah County Circuit Court

No. 0902-01653

INVACARE CORPORATION, a foreign corporation; UNITED SEATING & MOBILITY, LLC, a foreign limited liability company; CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; CTE TECH CORP., a foreign corporation; MOTION CONCEPTS, INC., a foreign corporatiori; PERPETUAL MOTION ENTERPRISES_, LTD, a foreign corporation; PASS & SEYMOUR, INC., a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, INC., f/k/a Siemens Energy and Automation, Inc., a foreign corporation; SUMlMERS GROUP, INC., dba REXEL, a foreign corporation; and GAW ELECTRIC, INC., an Oregon corporation, Defendants,

EXCERPT OF RECORD VOL. 2 (ER 132 - 204)

and
CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; and CTE TECH CORP., a foreign corporation, ~ Defendants-Relators. February 2011 (Counsel on Next Page)

~ nP

N I I , I I I I ' I I I I ' I I I

Mary-Anne Rayburn, OSB No. 803680 Jonathan M. Hoffman, OSB No. 754180 Joan L. Volpert, OSB No. 803942 Martin Bischoff Templeton Langslet & Hoffman LLP 888 S.W. Fifth Ave., Ste. 900 Portland, OR 97204 Telephone: 503-224-3113 E-Mail: mraybum@martinbischoff.com jhoffmangmartinbischoff.com jvolpert e,martinbischoff.com Attorneys for Defendants-Relators

Jeffrey A. Bowersox, OSB No. 814422 The Bowersox Law Firm PC 5385 Meadows Road, Ste. 320 Lake Oswego, OR 97035 Telephone: 503-452-5 858 E-Mail: jeffrey_(a),blfpc.com Attorney for Plaintiffs-Adverse Parties Richard C. Pearce, OSB No. 762842 Attorney at Law 921 S.W. Washington St., Ste. 755 Portland, OR 97205 Telephone : 5 03 -223 -2966 E-Mail: rcpkhevanet.com Co-Counsel for Plaintiffs-Adverse Parties Walter H. Sweek, OSB No. 620920 Cosgrave Vergeer Kester LLP 805 S.W. Broadway, 8th Floor Portland, OR 97205 Telephone: 503-323-9000 E-Mail: wsweek(cr~cvk-law.com Attorney for Invacare Corporation, Motion Concepts, Inc. and Perpetual Motion Enterprises

(Continued on next page)

I
Jay W. Beattie, OSB No. 871631 Lindsay Hart Neil & Weigler LLP 1300 S.W. Fifth Ave., Ste. 3400 Portland, OR 97201 Telephone: 503-226-7677 E-Mail: jbeattie@lindsayhart.com Attorney for United Seating & Mobility, LLC Ronald J. Clark, OSB No. 880328 Bullivant Houser Bailey PC 888 S.W. Fifth Ave., Ste. 300 Portland, OR 97204 Telephone: 503-499-4413 E-Mail: ron.clark@bullivant.com Attorney for Pass & Seymour, Inc. Heather C. Beasley, OSB No. 965443 Davis Rothwell Earle & Xochihua PC 111 S.W. Fifth Ave.; Ste. 2700 Portland, OR 97204 Telephone: 503-222-4422 E-Mail: hbeasley@davisrothwell.com Attorney for GAW Electric, Inc. Joshua P. Stump, OSB No. 974075 Harrang Long Gary Rudnick, PC 1001 S.W. Fifth Ave., 16th Floor Portland, OR 97204 Telephone: 503-242-0000 E-Mail: joshua.stumpgharran .~ Attorney for Siemens Industry, Inc.

~ ~

(Continued on next page)

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Christine F. Miller, Admitted Pro Hac Vice Julia T. Farrell, Admitted Pro Hac Vice J. Claire Todorovich, Admitted Pro Hac Vice 190 Carondelet Plaza, Ste. 600 St. Louis, MO 63105 Telephone: E-Mail: Attorney for Siemens Industry Inc. Ryan McLellan, OSB No. 023908 Smith Freed & Eberhard, PC 111 S.W. Fifth Ave., 43rd Floor Portland, OR 97204 Telephone: 503-227-2424 E-Mail: rmclellangsmithfreed.com Attorney for Szsmmers Group, Inc.

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Index to the Excerpts of the Clerk's Record

Volume 2 (ER 132 - 204)

ER Page
Defendants CTE Tech Corp.'s and China Terminal & Electric Corp.'s Reply in Support of its Motion to Disiniss for Lack of Personal Jurisdiction ............................................. Plaintiffs' Sur-Reply to CTE Defendants' Motion to Dismiss for Lack of Personal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Declaration of Plaintiffs' Counsel in Support . . . . . . . . . . . . . . . . . Exhibit 1- Letter to Hon. Janice M. Stewart dated July 16,
2009
....................................

132

142 145

148

Notice to Trial Court Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit 9- Certificate of Insurance for China Terminal & Electric Corp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statement of Jason Hubert, July 30, 2010 . . . . . . . . . . . . . . . . . . . . . . . . . Plaintiffs' Supplemental Brief in Opposition to CTE Defendants' Motion to Dismiss for Lack of Personal Jurisdiction . . . . . . . . . . . . . . . Exhibit 1 - Declaration of Michael Romano (SEALED) . . . . . . . . . Defendants CTE Tech Corp.'s and China Terminal & Electric Corp.'s Supplemental "Reply in Support of its Motion to Dismiss for Lack of Personal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit 1- Specially Appearing Defendant Daimler Ag's Motion to Dismiss for Lack of Personal Jurisdiction ......... Transcript of Proceedings, Continuation of Motion to Dismiss, Volume II of II, January 5, 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

152

156 158

163

170

1 ~ ~ ~

178

196

I I
Order [re Motion to Dismiss filed by CTE Tech Corp. and China Terminal & Electric Corp.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

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ER-132
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4 5 6 7 g V. 9 10 11 12 13 14 15 16 17

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH JEFFREY WILLEMSEN, as Personal Representative of the Estate of KARLENE J. WILLEMSEN and JAMES WILLEMSEN, Plaintiffs, INVACARE CORPORATION, a foreign corporation; UNITED SEATING & MOBILITY, LLC., a foreign limited liability company; CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; CTE TECH CORP., a foreign corporation; MOTION CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS & SEYMOUR, INC., a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, INC, f/k/as Siemens Energy and Automation, Inc., a foreign corporation; SUMMERS GROUP, INC., dba REXEL, a foreign corporation; and GAW ELECTRIC, INC., an Oregon corporation, Defendants. Defendants CTE TECH CORP.' S and CHINA TERMINAL & ELECTRIC CORP.' S(a prior business name of CTE TECH CORP) (hereinafter collectively "CTE") replies in support of its Motion to Dismiss for Lack of Personal Jurisdiction as follows:

Case No. 0902-01653 DEFENDANTS CTE TECH CORP.'S AND CHINA TERMINAL & ELECTRIC CORP'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (Oral Argument Requested)

18 19
20 21 22

23 24 25 26
Page 1CTE' S REPLY IN SUPPORT OF ITS MOTION TO DISMISS
Martin, Bischoff, Templeton, Langsfet & Hoffman LLP
888 S W Fifth Avenue, Suite 900

!/!

Portland, OR 97204
~ Telephone: (503) 224-31 13

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ER-133

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ARGUMENT
I. Plaintiffs ignore relevant Supreme Court case law and misstate the governing standard for personal;urisdiction over a foreign product manufacturer. Plaintiffs' Opposition is more telling for what it omits than what it states. Specifically,

5 Plaintiffs do not address the Supreme Court holding in Asahi Metal Industry Co., LTD v. 6 Superior Court of California, 480 US 102, 112 (1987) or the long line of Ninth Circuit Court of 7 Appeals and U.S. District Court of Oregon rulings after State ex re. Hydraulic Servocontrols ~ g Corp. v. Dale, 294 Or 381, 657 P2d 211 (1982); all of which specifically reject the "stream of

9 commerce" theory for establishing personal jurisdiction. Plaintiffs do not explain why Asahi and ~ 10 its progeny are distinguishable or why the holdings/rationales of these various cases are not 11 controlling. Instead, they simply choose to ignore them. As explained further below, it is well-

~ 12 established that a foreign manufactwer's act of delivering a product into the national stream of ~ 13 commerce, without more, does not satisfy the constitutional due process requirement of 14 "pm'poseful availment" or "minimum contacts" necessary to support personal jurisdiction. This ~ 15 Court should reject Plaintiffs' attempt to overturn this settled constitutional principle with dated

16 and inapplicable case law.

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17 18

Plaintiffs agree that the proper analysis for determ>ning whether an Oregon court can exercise personal jurisdiction over a foreign defendant involves a two-step process: First, does

19 the case fall within the terms of Oregon's jurisdictional statute at ORCP 4? Second, does federal ~ 20 due process permit an Oregon court, as a matter of constitutional law, to obtain and exercise 21 22 personal jurisdiction over the foreign defendant under the facts of the case? 1 (Plaintiffs' Opposition, p. 3). Plaintiffs also accept, at least ostensibly, that Oregon's jurisdictional statute

~ 23 and jurisprudence apply U.S. Supreme Court analysis and holdings to Oregon cases on the

24
~ 25 1 Regardless of whether the facts of a case fit within the express terms of ORCP 4, the exercise of personal jurisdiction must always comport with the due process requirement that a 26 defendant have `'minimum contacts" with Oregon. Nike, Inc. v. Spencer, 75 Or App 362, 3 73, 707 P2d 589 (1985). CTE'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS
Martin, Bischoff, Templeton Langslet & Hoffman LLP Portland, OR 97204 Telephone: (503) 224-3113
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,

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888 SW Fifth Avenue, Sirite 900

ER-134
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federal due process question. (Plaintiffs' Opposition, p. 10). Nonetheless, Plaintiffs' application

2 of the due process prong of the analysis completely ignores all relevant U.S. Supreme Court, 3 Ninth Circuit Court of Appeals, and U.S. District Cou rt of Oregon case law regarding the
~ ~ .

4 exercise of personal jurisdiction over a foreign product/component manufacturer. 5 Plaintiffs rely primarily on Hydraulic Servocontrols, 294 Or 381 (1982), to support their

6 contention that personal jurisdiction can be based solely on a foreign manufacturer's placement 7 of a product component into the national stream of commerce. Hydraulic Servocontrols arose g out of a California aircraft crash. The subject aircraft was purchased by an Oregon resident in 9 this State. Plaintiff sued several defendants, including Hydraulic Servocontrols Corp., a New ~ 10 York company that manufactured an aircraft engine device called a servo actuator. 11
'

Id at 3 83.

The issue presented by the Oregon Supreme Court was whether Hydraulic Servocontrols Corp., "by placing its product into the American stream of commerce so that it reached consumers in Oregon by means of the commercial distribution activity of others, [has] sufficient contact with Oregon that exercise of jurisdiction is lawful when an Oregon resident is damaged by defects in that product." Id at 383-84. The Court applied Oregon's long-arm statute, ORCP 4L, and held that a foreign manufacturer's act of delivering a component into the stream of commerce, with knowledge that lt would be lncorporated >nto a product that was sold nationally, was suffic>ent to satisfy constitutional due process minimum contacts. Id at 389. In reaching its opinion, the Court relied on then-existing U.S. Supreme Court precedent defining constitutionally sufficient "minimum contacts." Id at 384-386. However, the Court specifically acknowledged that, at the time of its ruling, no U.S. Supreme Court case had considered "whether a manufacturer is subject to an action on a products liability theory in a state where it has no direct contacts." Id at 386. Five years after the Oregon Supreme Court's ruling in Hydraulic Servocontrols, the U.S. Supreme Court weighed in on the "stream of commerce" issue and the Court held that a foreign nianufacturer's mere act of placing a product into the stream of national commerce does not satisfy the constitutional requirement of minimum contacts. Asahi Metal Industry Co., LTD v.

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Page 3- CTE'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS

Martin, Bischoff, Templeton,

Langslet & Hoffman LLP

888 SW Fifth Avenue, Suite 900 -

Portland, OR 97204
Telephone: (503) 224-3113

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ER-135

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1 Superior Court ofCalifornia, 480 US 102, 112 (1987). The Court further held that a foreign 2 manufacturer's awareness that the stream of commerce may sweep a product into the forum state
3 4 5 6 7 8 9

does not convert the act of placing the product into the stream of commerce into an act purposefully directed toward the forum state. Id at 112. The Court stated that a plaintiff seeking to satisfy his/her burden of establishing personal jurisdiction over a foreign manufacturer must prove-that the defendant engaged in some "additional conduct" indicating an intent to serve the market of the forum including, for example, designing the product for the market in the forum state, advertising in the forum state, providing regular advice 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.

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

In the years following the U.S. Supreme Court's ruling in Asahi, the Ninth Circuit Cou'rt of Appeals and U.S. District Court of Oregon have consistently held that federal due process does not allow a foreign product manufacturer to be subject to personal jurisdiction based solely on the manufacturer's placement of a product into the national stream of commerce. These cases have uniformly held that a plaintiff seeking to establish personal jurisdiction over a foreign manufacturer must allege or prove that the manufacturer engaged in some affirmative act specifically directed at the forum and its residents. See e.g., Holland America Line, Inc., 485 173d at 459; Doe v. American Nat'l. Red Cross, 112 F3d 1048, 1051 (9' Cir 1997); Omeluk v. Langsten Slip and Batbyggeri A/S, 52 F3d 267, 271 (9' Cir 1995); Adidas America, Inc. v. Topline Corporation, 2009 WL 1270256 (D Or May 5, 2009); Espinoza v. Blitz, 2004 WL 2165358 (D Or Sept. 24, 2004); Sunset Fuel v. Zanjani, 1997 WL 118440 (D Or February 26, 1997); see also, Findings and Recommendations of U.S. Magistrate Judge John Jelderks in Faber v. Bombardier, Inc., U.S. District of Oregon Case No. 04-CV 645 (2005), attached as Exhibit 2 to the original motion; see also, Anderson v. European Woodworking Machinery Co. v. Karl Hessemann Maschinenfabrik GmbH cg Co. KG, Multnomah County Circuit Court Case No. 0312-1372 (Judge Beckman granted third-party defendant Hessemann's motion to dismiss

26 for lack of personal jurisdiction in Oregon). Page 4- CTE'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS

Martin, Bischoff, Templeton, Langslet & Hoffman LLP

888 SW Fifth Avenue, Swte 900

Portland, OR 97204
Telephone: (503) 224-3113

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ER-136

Federal due process does not allow a state to exercise personal jurisdiction over a foreign

2 manufacturer simply because the manufacturer placed a product into the national stream of 3 commerce which eventually reaches the forum. Simply put, Hydraulic Servocontrols has been 4 superseded by approximately twenty-three years of federal case law rejecting the `'stream of ~ ~ 5 commerce" theory of personal jurisdiction as unconstitutional. 6 7 ~ Plaintiffs' conclusory allegation that CTE intended to derive an economic benefit from Invacare's national marketplace, even if true, is constitutionally insufFcient to support personal

g jurisdiction in the State of Oregon.

9

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II. Plaintiffs have not satisfied their burden of alle ing_and proving iurisdictional facts connecting CTE to the State of Oregon. Plaintiffs have not satisfied their burden of alleging and proving facts necessary to

12 establish personal jurisdiction over CTE in the State of Oregon. See, White v. Mac Air Corp., 147 Or App 714, 720, 938 P2d 241 (1997). They have not supplied the Court with any proof, or

~ 13

14 even argument, to rebut CTE's evidence that the company lacks minimum contacts with the ~ 15 State of Oregon. Indeed, they cannot do so. (See, Declaration of Peter Chen in support of

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16 Motion to Dismiss and CTE's responses to plaintiff s Request for Production of Documents). 17 Instead, Plaintiffs' Opposition improperly frames the jurisdictional question in the context of a 18 broader national marketplace. At best, Plaintiffs have established that: (1) CTE was aware that 19 its products were sold and distributed by Invacare throughout the United States; (2) CTE sold its 20 products with the intention of deriving an economic benefit from Invacare's national market; ( 3 ) 21 CTE maintains product liability insurance in the United States; and (4) CTE complied with federal product reporting and registration requirements. (Plaintiffs' Opposition, pp. 9-11).

~ 22

~ 23 However, CTE's purported connection to the overall United States marketplace has no bearing 24 on the specific question before the Court; i.e., whether Plaintiffs have established constitutionally

25 sufficient minimum contacts between CTE and the State of Oregon to satisfy federal due 26 process. Proof of a foreign company's involvement in national commerce is not a substitute for
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Page 5- CTE' S REPLY IN SUPPORT OF ITS MOTION TO DISMISS

~

Martin, Bischoff, Templeton Langslet & Hoffman LLP 888 SW Fifth Avenue, Sirite 900 Portland, OR 97204
,

Telephone: (503) 224-3113 ~

ER-137

proof of constitutionally-required minimum contacts with a particular forum state. Because plaintiffs are unable to prove any activity by CTE directed to Oregon, Plaintiffs attempt to cloud any distinction between a foreign defendant's national presence and its specific contacts with the forum state. In this respect, plaintiffs ignore one of the principal purposes of a judicial system based on personal jurisdiction, which is to "ensure that States, through their courts, do not reach beyond the limits imposed on them by their status as coequal sovereigns in a federal system." World-Wide Volkswagen Corp. v. Woodson, 444 US 286, 292, 100 S Ct 559 (1980). Plaintiffs acknowledge that Oregon courts are bound by the federal constitution and case law. Nonetheless, their Opposition would have the Court disregard the long-established system of personal jurisdiction based on territorial-sovereignty and forum-specific contacts, and instead, create a new system of personal jurisdiction based only on national presence. They have not cited any legal authority for such a radical deviation from established Supreme Court law. In sum, Plaintiffs have not alleged or proven any "jurisdictional facts" establishing a connection between CTE and the State of Oregon. Even assuming the truth of all of their allegations, they have done nothing more than establish that CTE has a general connection to the United States (or possibly the State of Ohio) Z . Accordingly, their action should be dismissed for lack of personal jurisdiction in Oregon. I1I. Plaintiffs' re9uest for a continuance to conduct additional discovery should be denied. Finally, the Court should reject Plaintiffs' request to delay a ruling on this motion while Plaintiffs conduct additional and unnecessary factual discovery. Plaintiffs' characterization of CTE's conduct during the discovery process is flatly inaccurate. As explained in CTE's underlying motion, while this case was pending in the U.S. District Court of Oregon, in June 2009, CTE filed a similar motion to dismiss. At that tiine, Plaintiffs requested and were granted a continuance to conduct discovery on the limited issue of personal jurisdiction in the State of 25 Z Plaintiffs produced a contract between CTE and co-defendant Invacare executed in the 26 State of Ohio. The contract contains a provision under which CTE agrees to jurisdiction in the State of Ohio. Page 6CTE' S REPLY IN SUPPORT OF ITS MOTION TO DISMISS
Martin, Bischoff, Templeton,
Langslet & Hoffman LLP 888 SW Fifth Avenue, $uite 900

Portland, OR 97204
~ Telephone: (503) 224-3113

(77)
1

ER-138

Oregon, Nonetheless, Plaintiffs served CTE with wide-ranging and overbroad requests for

2 production and interrogatories which sought all information regarding CTE's dealings in the 3 United States. Plaintiffs voluntarily granted CTE several extensions, while CTE worked to 4 gather responsive documents/information. Thereafter, upon remand to Multnomah County 5 Circuit Court, CTE provided discovery responses in accordance with the previous U.S. District 6 Court order allowing Plaintiffs to conduct discovery on the limited issue of personal jurisdiction 7 in the State of Oregon. g CTE did not stonewall Plaintiffs or refuse to provide discoverable material. Instead, CTE

9 produced everything it had with respect to CTE's contacts/dealings with the State of Oregon. 10 CTE's discovery responses were in accordance with a timeline stipulated to by Plaintiffs. 11 12 I3 14 Unfortunately for Plaintiffs, CTE had nothing to produce because it has no connection with the State of Oregon. In reality, the jurisdictional facts stymied Plaintiffs, not CTE's conduct during discovery. Moreover, CTE notes that Plaintiffs had months to take an ORCP 39C(6} 3 deposition or

15 remedy any perceived defects in CTE's discovery responses. Plaintiffs have not made any 16 attempt to notice CTE for deposition, despite the fact that this case has been pending for one and 17 a half years. Furthermore, CTE provided Plaintiffs with written discovery responses two months 18 ago. These responses confirmed the information contained in the Declaration of Peter Chen filed 19 in support of CTE's Motion to Dismiss in both courts. Plaintiffs have not challenged the ~ 20 sufficiency of the responses. 21 In short, the Court has all the jurisdictional facts necessary to rule on the pending motion

22 to dismiss. There is no reason to further delay a ruling on the issue of personal jurisdiction in the 23 State of Oregon. 24 ///

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25 26 3 Or, FRCP 30(b)(6) deposition while the case was pending in Oregon Federal District
Court.

Page 7~

CTE'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS

lvtartin , Bischoff, Templeton, .

Langslet & Hoffman LLP
888 SW Fifth Avenue, Suite 900

Portland, OR 97204 Telephone: (503) 224-3113

B.

ER-139
CONCLUSION

For the foregoing reasons, CTE asks that its Motion to Dismiss be granted. DATED: July 22, 2010. MARTIN, BISCHOFF, TEMPLETON, LANGSLET & HOFFMAN LLP By: Mary-Anne S. Rayburn, OSB #80368 Stephen P. Yoshida, OSB #044588 Of Attorneys for Defendants China Terminal & Electric Corp. and CTE Tech Corp. TRIAL ATTORNEY: Mary-Anne S. Rayburn

CTE'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS

Martin, Bischoff, Templeton,

Langslet & Hoffman LLP 888 S W Fifth Avenue, Strite 900 Portland, OR 97204
Telephone: (503) 224-3113

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ER-140

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CERTIFICATE OF SERVICE
I hereby certify that, on this date, I served the foregoing DEFENDANTS CTE TECH CORP.' S AND CHINA TERMINAL & ELECTRIC CORP' S REPLY IN SUPPORT OF ITS MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION on the following attorneys: Jeffrey A. Bowersox Bowersox Law Firm P.C. Kruse Woods I 5285 Meadows Road, Suite 320 Lake Oswego, OR 97035 Richard C. Pearce Attorney at Law 921 S.W. Washington Street, Suite 755 Portland, OR 97205 Attorney for Plaintiffs Jay W. Beattie Lindsay Hart Neil & Weigler LLP 1300 SW Fifth Avenue, Suite 3 400 Portland, OR 97201 Attorney for United Seating & Mobility Heather C. Beasley Davis Rothwell Earle et. al. 111 S.W. Fifth Avenue, Suite 2700 Portland, OR 97204 Attorneys for Defendant GAW Electric, Inc. Walter H. Sweek Cosgrave Vergeer Kester LLP 805 SW Broadway, 8"1' Floor Portland, OR 97205 Joshua P. Stump Harrang Long Gary Rudnick 1001 SW 5 h Avenue, 16`'' Floor Portland, OR 97204 Julia Farrell Christine F. Miller Claire Todorovich Husch Blackwell Sanders LLP 190 Carondelet Plaza, Suite 600 St. Louis, MO 63105 Attorneys for Defendant Siemens Industry, Inc. Ronald J. Clark Bullivant Houser Bailey PC 888 SW Fifth Avenue, Suite 300 Portland, OR 97204 Attorneys for Defendant Pass & Seymour, Inc. Ryan McLellan Smith Freed & Eberhard PC 111 SW Fifth Avenue, 43 d Floor Portland, OR 97204 Attorney for Defendant Summers Group, Inc.

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Attorney for Invacare Corporation, Motion Concepts, Perpetual Motion Enterprises, Ltd.

1 - CERTIFICATE OF SERVICE

MARTIN, BISCHOFF, TEMPLETON,

LANGSLET & HOFFMANLLP

Attomeys at Lew 888 SW Fifth Avenue, Suite 900 Portland, OR 97204 Telephone (503) 224-3113

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--- ---ER-141

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By causing copies thereof, addressed to each attorney's last known address, and sent by the following indicated method or methods:

s
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by U.S. mail, first-class postage prepaid, from Portland, Oregon. by hand delivery. by overnight courier. by electronic mail. MARTIN, BISCHOFF, TEMPLETON LANGSLET & HOFFMAN By: Vary-*Xnne S. Rayburn, SB #80368 Stephen P. Yoshida, OSB #044588 Of Attorneys for Defendants China Termirial & Electric Corp. and CTE Tech Corporation

DATED: July 22, 2010.

II II

Page 2- CERTIFICATE OF SERVICE

MARTIN, BISCHOFF, TEMPLETON, LANGSLET 8 H01=FMAN LLP Attomeys at Law 888 SW f fth Avenue, Suite 900 Po rt land, OR 97204 Telephone (503) 224-3113

:m:MyFax - Bowrersox Lawi! `Firm, P.C. To:Mary Anne Rayburn (15032249471)

19:18 07126110G tN T-04 Pg 03-1 8

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ER-142
1

2 3 4 5 ' 6 1'I 7 1
8

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH JEFFREY WILLEMSEN, as Personal Representative of the Estate of KARLENE J. WILLEMSEN and JAMES WILLEMSEN,
Plaintiffs,
Case No. 0902-01653

9 10
rda

v.

11
12 INVACARE CORPORATION, a foreign corporation; UNITED SEATING & MOBII.ITY, LLC., a foreign limited liability company; CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; CTE TECH CORP., a foreign corporation; MOTION CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS & SEYMOUR, INC., a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, INC, f/k/as Siemens Energy and Automation, Inc., a foreign corporation; SUMMERS GROUP, INC., dba REXEI., a foreign corporation; and GAW ELECTRIC, INC. an Oregon Corporation, Defendants.

PLAINTiFFS' SUR-REPLY TO CTE DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

13 14 15 16 17 18 19 20 21 22 23 24 25
26 '

ORAL ARGUMENT REQUESTED

Plaintiffs submit this sur-reply solely to correct defendants' claim that the United States District Court for the District of Oregon limited plaintiffs' discovery regarding personal jurisdiction over the CT'E defendants to Oregon business contacts only.'

27
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'Defendants' Reply at p. 7, Ins 4-7.

Page 1- PLAINTIFFS' SUR-REPLY TO CTE DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

Borenax law Fvm, P.0 32H3 Meadows Hoad. Suite 320

lake Oswcgo. OA 47055

(SO:i)

452-5858

', .,

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:,m Law Firm, P.C. To:Mary Anne Rayburn (15032249471)

19:1 8 0712611 0GMT-04 Pg 04-18

ER-143
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Plaintiffs' lawsuit was originally filed in Multnomah County and was removed to the US iV~s;x'ct Court. .The CTE defendants challenged the court's personal jurisdiction over them. Prior
2~

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rrfotionto seek discoveryrelated to personal jurisdiction, plaintiffs' counsel conferred with

,

~i.~ ~ w~:~~r;sel. The parties agreed to conduct discove ry related to personal ju ri sdiction. That ;was submitted to Magistrate Janice Stewart by letter dated July 16, 2010, a copyof which

6:q :Lq et"boil .4o the Declaration of Counsel as Exhibit 1discovery from the CTE"defendants regarding personal jurjsdic#ion was

.kr -

:=aAhe-:; by the court. The CrE defendants did not seek an order litniting plaintiffs'

WP ~10=w1- hD 560regan contacts" only, nar did Judge Sterrart enter any such order. I1
L?esp.ite this, the CTE defendants have now twice represented to this court that the US

~ss ~; _ r~:oa;3t'irnited plaintiffs' right of discovery. That is incorrect and this court needs to be aware of th4 fact. -i :: a~M?c~etsver, plaintiffs' counsel cooperated with CTE's counsel on multiple occasions to extend the tzme t`or pT- ction of CTE's responsive documents to the federal court request for production . df:dccamiews ;"RFP") and the federal court interrogatories. CTE's counsel repeatedly assured !:plainniffs' cauns:: that the document production and interrogatory responses were in process but it
i.

f ,v ~.4 {:*?driv a subs*.nnntial period of time to receive the documents. Plaintiffs' counsel cooperated by ~ doi ,z~l~e ~.:?~rion to compel. Plaintiffs' counsel discussed a deposition of organization under ~ f~:dq~Yu
I

with CTE's counsel, to be conducted after documents were examined. No regarding that deposition and no court order was entered to prohibit plaintiff

1-:sm .fLu; tht:.deposition of the CTE organizations.

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~ivlc. !h~s case was remanded to state court, the CTE defendants produced their "responses" w lal:amiz ias RT-'P. The CTE defendants unilaterally lirnited plaintiffs' RFP request to "Oregon

,(~~ ~,~~~

'~ ~' "?_) ;;~!~-~;~ +::(i'st~ :: s only." The CTE defendants then refused to produce any documents stating that ;~;;:: j`~ ~ ,'3~ ,
.7 6

documents. Because the case had been remanded to state court, the CTE answer the federal court interrogatories.

S `_A

SUR-REPLY TO CTE DEFENDANTS' MOTION TO DISMISS FOR JURISDICTION

& wacmc Iaa Fam, P.C.
59.85 Mcadovs Road, SuQe 720
(S(T3) [.ke Oswqp). Ot 9T075 45?-5858

i:

'm:MyFax - Bowersox LawFlrm, P.C. To:Mary Anne Rayburn (15032249471) . .^

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ER-142

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IN THE CIRCUIT COURT OF TIE STATE OF OREGON FOR THE COUNTY OF MULTNOM:AH Case No. 0902-01653
s

5~I ~ , ' 6

Personal 71 JEFFREY WILLEMSEN, asof KARLENE J. 8 Representative of the Estate WILLEMSEN and JAMES WILLEMSEN,

9
Plaintiffs,

10
v.

11 12
INVACARE CORPORATION, a foreign corporation; UNITED SEATING k MOBIIITY, I.LC., a foreign limited liability company; CHIIVA TERMIlr1AL & ELECTRIC CORP., a foreign corporation; CTE TECH CORP.,'a foreign corporation; MOTION CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS & SEYMOUR, INC:, a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, INC, f/klas Siemens Energy and Automation, Inc., a foreign corporation; SUMNLERS GROUP, INC., dba REXEL, a foreign corporation; and GAW EI:ECTRTC, INC. an Oregon Gorporation, Defendants: .

PLAIIVTIFFS' SUR-REPLY TO.CTE DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

13 14

ORAL ARGUMENT REQUESTED

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Plaintiffs submit this sur-reply solely to correct defendants' claim that the United States District Court for the District of Oregon limited plaintiffs' discovery regarding personal jurisdiction

24 over the CTE defendants to Oregon business contacts only.' 25 26 27 28

Page ,1- PI.AINTIFFS' SUR-REPLY TO CTE DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Bowerwx Law Fmn P.C~.

'Defendants' Repty at p. 7, tn's 4-7.

3?83 Meadoqa 8oad. Suifc J'0:~ LakeOswego: - OW4JD3]r~~ (503Y+kT_5858.;.

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=m:MyFax - Bowersox Law Firm, P.C. To:Mary Anne Rayburn (15032249471)

--

19:18 0712611 OGMT-04 Pg 04-18

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ER-143

Plaintiffs' lawsuit was originally filed in Multnomah County and was removed to the US
2'

District Court. The CTE defendants challenged the court's personal jurisdiction over them. Prior to filing a motion to seek discovery related to personal jurisdiction, plaintiffs' counsel conferred with CTE's counsel. The parties agreed to conduct discovery related to personal jurisdiction. That agreement was submitted to Magistrate Janice Stewart by letter dated July 16, 2010, a copyof which is attached to the Declaration of Counsel as Exhibit 1. Plaintiffs' discovery fram t6e CTE defendants regarding personal jurisdiction was never limited by the court. The CTE defendants did not seek an order limiting plaintiffs'

3
4

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6
7 8

9. discovery to "Oregon contacts" only, nor did Judge Stewart enter any such order.
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Despite this, the CTE defendants have now twice represented to this court that the US District Court lirnited plaintiffs' right of discovery. That is incorrect and this court needs to.be aware

12 I of that fact. ' 13 14 15 16 , 17

Moreover, plaintiffs' counsel cooperated with CTE's counsel on multiple occasions to extend the time for production of CTE's responsive documents to the federal court request for production of documents ("RFP") and the federal court interrogatories. CTE's counsel repeatedly assured plaintiffs' counsel that the document production and interrogatory responses were in process but it was taking a substantial period of time to receive the documents. Plaintiffs' counsel cooperated by not filing a motion to compel. Pla.intiffs' counsel discussed a deposition of organization under

19 federal rule 30B(6) with CTE's counsel, to be conducted after documents were examined. No ~ 20 21
22
agreement was reached regarding that deposition and no court order was entered to prohibit plaintiff from taking the deposition of the CTE organizations.

After this case was remanded to state court, the CTE defendants produced their "responses" to plaintiffs' RFP. The CTE defendants unilaterally lirnited plaintiffs' RFP request to "Oregon business contacts only." The CTE defendants then refused to produce any documents stating that

23 ~ 24

25 1 there were no "Oregon" documents. Because the case had been remanded to state court, the CTE

26
.27

defendants did not answer the federal court interrogatories.

28
Page 2- PLAINTIFFS' SUR-REPLY TO CTE DEFENDANTS' MOTION TO DISMISS -FOR LACK OF PERSONAL JURISDICTION
&,warox IAv Fmn. P.C.
.
~

5?ffi Meadows Road. Svae.720 [~te Oswqpi. Oft 47075 . (S03) 4535858

. . \

owersox Law Firm, P.C. To:Mary Anne Rayburn (15032249471)

19:18 07126110GMT-04 Pg 05-18

ER-144

If this court determines that the CTE defendants are subject to the Oregon court's personal jurisdiction, the discovery matters are moot. If the court concludes that it needs more information to determine whether CTE is subject to the court's jurisdiction, plaintiffs should be allowed to obtain complete documentary discovery for the CTE defendants' business dealings in the United States and to conduct an ORCP 39C(6) deposition of organization. Plaintiffs rely on the attached declaration of their counsel in support of this sur-reply.

Page 3- PLAINTIFFS' SUR-REPLY TO CTE DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
eowvmu U. Fm r.c
Mn~d.awas~ei~ lal Oswego. oa 97037 oe
. (303)4512-S858

'm:MyFax - Bowersox Law Firm, P.C. To:Mary Anne Rayburn (15032249471)

19:18 0712611oGMT-04 Pg 06-18

ER-145

1 2

3 ~ ~ 4 5 b
7

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH

8 ,TEFFREY WII.LEMSEN, as Personal 9 Representative of the Estate of KARLENE J. WII I.EMSEN and JAMES WIII.EMSEN, 10 Plaintiffs,

Case No. 0902-01653

11

V.

~ 12

DECLARATION OF PLAINTIFFS' COUNSEL IN SUPPORT OF PLAINTIFFS' SUR-REPLY TO CTE DEFENpANTS' MOTION TO DISMISS FOR LACK OF ' PERSONAL JURISDICTION

I t
1 1 i

13
14 15 16 17 18 19 20 21
22 23 24
25

INVACARE CORPORATION, a foreign corporation; UNITED SEATING & MOBILITY, LLC., a foreign limit.ed liability company; CHINA TERMINAL & ELECTRIC CORP., a foreign corpoiation; CTE TECH CORP., a foreign corporation; MOTION CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS &. SEYMOUR, INC., a foreigd corporation; SIEMENS CORPORATION,. a foreign corporation; SIEMENS INDUSTRY, INC, f/Ic/as Siemens Energy and Automation, Inc., a foreign corporation; SUMIvIERS GROUP, INC., dba REXEL, a foreign . corporation; and GAW ELECTRIC, INC. an Oregon Corporation, Defendants. I, Jeffrey A. Bowersox, hereby declare as follows: 1. 2. I am plaintiffs' trial attomey in the above-captioned matter. Plaintiffs currently have on file a second amended complaint.

26 Page 1- DECLARATION OF PLAINTIFFS' COUNSEL IN SUPPORT OF PLAINTIFFS' SUR-REPLY TO CTE DEFENDANTS' MOTION TO DISIVIISS FOR LACK OF PERSONAL JURISDICTION
_

Bwwso)c L.Aw F'am. P.C. 5m Madom Rwd, siiGt 120

Lake Osaeyo. OSt 97035

(s0714s2-sase

'm:NiyFax - Bowersox Law Firm, P.C. To:Mary Anne Rayburn (15032249471)

19:18 07I26110GMT-04 Pg 07-18

~
1 3.

ER-146

Plaintiffs lawsuit was originally filed in Multnomah Count y and was removed to the US

2 District Court. The CTE defendants challenged the court's personal jurisdiction over them. 3 4. Prior to filing a motion to seek discovery related to personal jurisdiction, plaintiffs' counsel

4 conferred with CTE's counsel. The parties agreed to conduct discovery related to personal jurisdiction. That ~ 5 agreement was submitted to Magistrate Janice Stewart by letter dated July 16, 2010, a true copy of which is 6 attached hereto as Exhibit 1. 7 5. Judge Stewart did not limit plaintiffs' discovery of the CTE defendants regarding

8 pErsonal jurisdiction. The CTE defendants did not seek an order Wniting plaintiffs' discovery to 9"Oregon contacts" only, nor did ,Tudge Stewart enter any such order. 10 6. Plaintiffs' counsel cooperated with CTE's counsel on multiple occasions to extend the time

11 for production of CTE's responsive documents to the federal court request for production of documents 12 ("RFP") and the federal court interrogatories. CTE's counsel repeatedly assured plaintiffs' counsel that the 13 document production and interrogatory responses were in process but it was taking a substantial period of 14 time to receive the documents. Plaintiffs' counsel cooperated by not filing a motion to compel. 15 7. Plaintiffs' counsel discussed a deposition of organization under federal rnle 30B (6) with

16 CTE's counsel, to be conducted after documents were examined. No agreement was reached regarding that 17 deposition and no court order was entered to prohibit plaintiff from taking the deposition of the CTE 18 organizations. 19 8. After this case was remanded to state court, the CTE defendants produced their "responses"

~=

20 to plaintiffs' RFP. The CTE defend'ants unilaterally limited plaintiffs' RFP request to "Oregon business 21 . contacts only." The CTE defendants then refused to produce any documents stating that there were no 22 "Oregon" documents. Because the case had been remanded to state court, the CTE defendants did not answer 23 the federal court interrogatories.

24 1I ll /I ll

25
26 Page 2- DECLARATION OF PL.AINTIFFS' COUNSEL IN SUPPORT OF PLAINTIFFS' SUR-REPLY TO CTE DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
. . . HowEB.wx LAwFUw. e.c. 5285 Meadnws Rod. Saae 33D Wm Oswego: OR 97035
15031452-SBS8

=m:MyFax - Bowersox Lawr Firm, P.C. To:Mary Anne Rayburn (15032249471)

19:18 07126110GMT-04 Pg 08-18

~
' ~ I

ER-147

I hereby declare that the above statements are true to the best of m y knowled g and belief, and that e

2 I understand it is made for use as evidence in court and is subject to penalty for perjury

3
' 4
S

DATED: July 26, 2010.

BOwERSOX LAW FIRM, P.C.

6 7

~
,

8
9

By:

ffrey ial

ey

sox, OSB No. 81442 laintiffs

10

'

12 13

' ~

14 15 16 17 18 .

U
~

19 20 21 22

23 ~ 24 25 26
Page 3- DECLARATION OF PLAINTIFFS' COUNSEL IN SUPPORT OF PLAINTIFFS' SUR-REPLY TO CTE DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
sowm= l.Aw qeu, r,c. 3?HS Mendows Rwd. Sbite 3m Idkt OSwEgO, d R~YR J3S

(303)452-5838

=m:PllyFax - Bowersox Law Firm, P.C. To:Mary Anne Rayburn (15032249471)

19:18 07126l10GMT-04 Pg 09-18

ER-148

BowERsOx LAw FIRM

A PROFFSSIONAL CC3RPORA'i'ION

SUITE 320 5285 MEADOWS RD. LAKE OSWEGO, OREGON 97035

503.452.5858
Jdfray Alan 8oworsox
Fscsimilc: 503345.6893

July 16, 2009

Honorable Janice M. Stewart US Magistrate Judge 1107 US Courthouse 1000 SW 3rd Ave Portland, OR 9720.4
Re; Jeffrey Wfllemsen, as Personal Representative of the Estate of Kariene Wfllemsen, et a1, v, Invacare Corporatfon, ei al.

US District Court for the District of Oregon Case No.: 3:09-CV-602-ST China Terminai & Electric (CTE) Motion to Dismiss for Lack of personal Jurisdiction Proposed Discovery Timetable Dear Judge Stewart:

~.

Mary-Anne Rayburn represents defendant China Terminal & Electric and CTfi (jointly 'CTE"). CTE has f led a motion to dismiss plaintiffs' claims against it on the basis of the lack of personal jurisdiction. ln, accordance with the parties' prior request; you removed the hearing date on defendant CTE's motion so that plaintiffs could conduct discovery related to the issue of personal }urisdiction. The parties have Xeached a general agreement (for the most part) about the form and tune table for proposed disoovery.on this limited issue. The parties have some disagreement on a few matters, but we hope those disagreements will be resolved without judicial intervention. To the extent that we are unabie to independently resoive those matters, we will address them during the FRCP 16 conference. Following is the parties' proposed discovery and hearing schedule, which we present.to you for your consideration. (Again, this proposed sehedule anticipates that the parties will resolve their current disagreement related to sorne discovery raatters. If we are unable to do so without the court's assistance at our to-be-sclheduled Rule 16 conference, the proposed schedule outlined below may need further adjustment.) 1. July 27, 2009: Plaintiff will serve discovery requests related to personal jurisdiction matters on defendants CTE.

'

D(HIBIT.J-.PSGE_...,_....A-r--

=m:MyFax - Bowersox Law Firrn, P.C. To:PAary Anne Rayburn (15032249471)

19:1 0712611 0GMT-04 Pg 10-18 8

ER-149

Honorable Janice M. Stewart July 16, 2009 Page 2

BowERsox LAw Fmlvl, P.C.

2.

' 3. ,

August 31, 2009: Defendant will respond to the discovery request, including producing responsive documents within the time provided by the Federal Rules of Civil Proceduie. lf defendant needs additional time within which to respond to plaintiff's request, counsel will reach an agreement regarding.an extension of time that witl allow defendant sufllcient time to properly respond. Assuming that defendant does not need additional time to respond and it timely produces documents responsive to plaintiff s request (and futther assurning that there is no dascovery dispute between plaintiffs and defendant regarding discovery), defendant will provide responsive documents and responses to the request for
discovery by Monday, August 31, 2009.

4. ~

With regard to potentia130(b)(6) deposition notices of CTE personnel (Taiwanese citizens living in Taiwan), the parties dispute whether such discovery is needed. However, if depositions are requested, we anticipate that.court.participation will be required. Assuming defendant has been able to respond to plaintiffs' request for discovery by August 31, 2009, and there are no other discovery disputes, _plaintiff will have 10 days from August 31, 2009 or 10 days from the time any discovery dispute has been decided and resolved and responded to,'to file their response to defeadant's motion to dismiss. Defendaut has the statutory time within which to respond, unless defendant needs an extension of time. Thereafter, the hearing on the motion will be scheduled as soon as practicable and as pertnitted by the court's schedule, hopefully by October, 2009:

I I I I I I I ' ~

S.

6.

Thank you for your courtesy in allowing the parties time to create, a discovery schedule related to the issue ofpersonal jurisdiction. We hope that the proposed schedule will provide adequate time for relevant and necessary discovery to be efficiently and timely conducted so this matter can be fully and fairly briefed to the court. We again thank you f.or your courtesy in allowing us to propose a briefing schedule and for your re:setting of the hearing date in this matter so that the parties can fully and fairly brief the issue for the cotut's consideration. _

_,_ Z

JAB:kr Copy_ Mary Anne Rayburn (via Jacsimile 503 224-9471)

Jeffrey Willemsen

FXNIBIT
,

PAGE

=m:MyFax - Bowersox Law Firm, P.C. To:Mary Anne Rayburn (15032249471)

01 ER-150
~ ' 1 2

19:18 0712611-OGMT-04 Pg 11-18

DECLARATION OF SERVICE

I declare under penalty of perjury of the laws of the state of Oregon that I caused to be served in the manner indicated a true and accurate copy of the foregoing PLAINfIFFS' SUR-REPLY TO 3 CTE DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION; DECLARATION OF PL.AINTIFFS' COUNSEL:
WalterH. Sweek Cosgrave Vergeer Kester LLP 805 SW Broadway, 8th F7oor PoRland, OR 97205 Attorney for Invacare Corporation, Motion Concepts, Inc. vuld Perpetual Motfon Enterprises Jay W Beattie Lindsay Hart Neil & Weigler LLP 1300 SW 5th Ave Ste 3400 Portland OR 97201 Attorney for United Seating & Mobflity, IlC Mary-Anne Raybum Martin Bischoff Templeton Langslet & Hoffman LLP 888 SW 5th Ave, Suite 900 . Portland, OR 97204 Attorney for CTE.Tech Corp and China Terminal & Electric Corp ' Ronald J Clark Buliivant Houser Bailey PC 888 SW 5th Ave Ste 300 Portland OR 97204
Attorney for Pass & Seywur, Inc.

' ' ~

4 5 6 , 7
8

By Hand Delivery By U.S. Mail K By Facsimile By Finail Attachmeat

'.

9 10
By Hand Delivery By U.S. Maii K By Facsimile By Email Attachment

1
~ , '

11 12 13 14 15 16 17

By Hand Delivery 3 By U.S. Mail By Facsimile K By F.mail Attachmnt

18 19

By Hand Delivery By U.S. Mail KBy Facsimile By Email Attachnient By Hand Delivery By U.S. Mail By Facsimile By Enail Attachment. By Hand Delivery By U.S. Mail By Facsimile By F.rnail Attachment

,.

20

21 ~ 22
23 ~ ~ 24 25 26

Heather C Beasley Davis Rothwell Earle & Xochihua PC 111 SW 5th Ave Ste.270a Portland OR 97204 Attorney for GAW Electric, Inc. Joshua P Stump Harraag Long Gary Rudnick PC 1001 SW 5th Ave 16th Flr Portland OR 97204 Anorney for Siemens Industry, lnc.

27 28
Page 4- PLAINTIFFS' SUR-REPLY TO CTE DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Boveieox law Fm0. P.0
5?8S 16cqdooK Ru4 Saite 7?II LJe aWW. Olt M35

(507)45]-5658

'm:MyFax - Bovdersox Law Ffrm, P.C. To:Mary,4nne Rayburn (15032249471)

19:18 07126110GMT-04 Pg 12-18

ER-151

Christine F Milier, admitted pro hac vice Julia T. Farrell, admitted.pro hac vice J. Claire Todorovich, admitted pro hac vice 190 Carondelet Plaza, Suite 600 St. Louis, MO 63105
Attorney for Siemens Industry, Inc.

By Hand Delivery By U.S. Mail K By Facsimile By Email Attachment

Ryan McLellan Sn-~ith Freed & Eberhard PC 111 SW 5th Ave 43rd Flr Portland OR 97204
Attorney for Summers Group, Inc.

By HmW De1ivcxy By U.S. Mail By Facsimile By Email Attachment

Richard C. Pearce 921 SW Washington St, Suite 755 Portland, OR 97205

Co-Counsel for Plainti},~s

By Hand Delivery By U.S. Mail K By Facsimile By Emai Attachment-

Signed and dated at Portland, Oregon this 26" day of July, 2010.

A5~;
j berly A. Riedl

~.

Page 5- PLAINTIFFS' SUR-REPLY TO CTE DEFF.NDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Bo+vawK Law Fam. P.C. 5265 Mtadoas RoA $ dln 320 Lata USwCV, OA 47033
(SQi) 432-3838 ..

"m:MyFax - Bowersox Law Firm, P.C. To:Mary Anne Rayburn (15032249471)

19:18 07I26110GMT-04 Pg 13-18

_ER-15 2
, 1
2

4 5
6 IN THE CIRCUTr COURT OF TI IE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH

1
~

8
9 10 JEFFREY W1LL .EMSEN, as Personal Representative of the Estate of KARLENE J. WII.LEMSEN and JAMF.S WILLEMSEN, Plaintiffs,
V.

Case No. 0902-01653 NOTICE TO TRIAL COURT ADMINISTRATOR

'

11

12
13 1. 15 16 17

18 ~ 19 20 21 22 23 ~ 24 25

INVACARE CORPORATION, a foreign corporation; UNTI'ED SEATING & MOBILITY, LLC., a foreign limited liability company; CH1NA TERMINAL & . ELECTRIC CORP., a foreign corporation; CTE TECH CORP., a foreign corporation; . MOTION CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS & SEYMOUR, INC., a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, INC, f/k/as Siemens Energy and . Automation, Inc., a foreign corporation; SUMMERS GROUP, INC., dba REXEL, a foreign corporation; and GAW ELECTRIC, INC. an Oregon Corporation, Defendants. Notice is hereby given to the Trial Court Administrator that the enclosed "Exhibit 9" should be inserted into plaintiffs' Declaration of Counsel [in support of Plaintiffs' Opposition to Defendants CTE Tech Corp.'s and China Terminal & Electric Corp.'s Motion to Dismiss for Lack of Personal Jurisdiction]

26
~ Page 1- NOTICE TO TRIAL COURT ADMINISTRATOR
BowF]ISOX LAV f~l1. P.C.

lAte

Osmego:

OR

5297 MeadOws Rna4 St&e 320 97033

(303)43bSB58. , .

:m:MyFax - Bowersox Law Firm, P.C. To:Mary Anne Rayburn (15032249471)

19:18 07126110GMT-04 Pg 15-18

ER-154
DECLARATION OF SERViCE "

I declare under penalty of per,jury of the laws of the state of Oregon that, I caused to be served in the manner indicated a true and accurate cwpy of the foregoing NOTICE TO TRIAL COURT ADMINISTRATOR: Walter H: Sweek Cosgrave Vergeer Kester I.L.P 805 SW Broadway, 8th Floor Portland, OR 97205
Attomey for Invacare Corporation, Motion Concepts, - .

By Hand Delivery By U.S. Mail K By Facsiniile By Email Attxhment

Inc. cned Perpetual Modon El nterprises

~-

Jay W Beatiie Lindsay Hart Neil & Weigler LLP 1300 SW 5th Ave Ste 3400 Portland OR 97201 Attorney for United Seating & Mobility,lLC
Mary-Anne Raybiun Matin Bischoff Templeton Langslet & Hoffman LLP 888 SW 5th Ave, Swte 900 Portland, OR 97204 Attomey for CTE Tech Corp and China Terminal & Electric Corp

By Hand Delivery By U.S. Mail K By Facsimile By Email Attachnent

I By Hand Delivery 3 By U.S. Mail By Facsimile By Email Attachrient

Ronald J Clark Bullivant Houser Bailey PC 888 SW 5th Ave Ste 300 Portland OR 97204 Atrorney for Prtss & Seyrnour, Inc. Heather C BeasleY Davis Rothwell Earle & Xochihua PC 111 SW 5th Ave Ste 2700 Portland OR 97204
Attorney for GAW Electric, Inc.

By Hsnd Delivery By U.S. Mail K By Facsimile By Err~il Attachment By Hand Delivery By U.S. Mail K By Facsimile By Errrail Auachment
3 By Hand Delivery By U.S. Mail X By Facsimile By Far~ail Attachment

Joshua P Stump Harrang Long GaryRudnick PC 1001 SW 5th Ave 16th Flr Port)and OR 97204 .
Anorney for Siemens Industry, Inc.

Boaawx Lam Fhm, P.C.

5]8S Mudcws Road. Smta 310

Ia~e Osww. OR 9A75

19fl\ l[9.i4/2

i
=m:MyFax - Boraersox Law Firm, P.C. To:Mary Anne Rayburn {15032249471) 19:18 07126110GMT-04 Pg 16-18

_-__-ER-155
n

f~

Christine F Miller, admitted pro hac vice Ju[ia T. Farrell, admitted pro hac vice J. Claire Todorovich, admitted pro hac vice 190 Carondelet Plaz.a, Suite 600 St. Louis, MO 63105
Anorney for Siernens Industry, Inc.

By Hand Delivery By U.S. Mail K By Facsimile By Email Attachment

Ryan McLellan Smith Freed & Eberhard PC 1 I I SW 5th Ave 43rd Flr Portland OR 97204
Attorney for Summers Group, Inc.

By I3and I]elivery By U.S. Mail By Facsimile By Email Attachnment

Richard C. Pearce 921 SW Washington St, Suite 755 Portland, OR 97205

Co-Counsel for Piaintiffs

By Hand I?eliveay By U.S. Masi K By Facsimile By Email Attachment

Signed and dated at . Portland, Oregon this 26' H day of ]uly, 2010.

berly A. Ried

eouvao: tav i"m. P.C.

5285 bindo.s Road. Sude 370

tahe Ow. OR 97035

'm:MyFax - Bbwersox'Law Firrn, P.C. To:Mary Anne Rayburn (15032249471)

19:18 07126/I0GMT-04 Pg 17-18

ER-156

K ,

, ..,. :: [

FutIon:'Ifturance Co., Ltd.

A Member oi the Fution'Group ot Co-'V anics CERTInCATE OF INSURANCE
Dam: Warcii 20. 2007 T-us wddtCMe tC 4ESWd at; a 11131lef o! irdarmaio -i aniy ane coiiiarrec! no rignts jw.. ttc cerlifica* iio-cer. Tnis ceridicAe does nool wr enri, cxlenc oi aller the covertigealloided oy trie pdicim hakhvConiparry Wording coverage Named insured CartlUciate Holder Pobon Insurancc. Cu. Lld IIVhOarfi rorporwion
()?* I-ivacaro Way Ely-ia,

oh /.40xn
Iha

Note Unifica,& tioldei is also ai Adoftor;4 lnsurec jwer VanaDrs Claiso. T-iis is to eert#V that poliq oi insu-ancc bsted bolow ttas beer "ijea ic. ihe Insured iamed abow lrx
pd " penod indiaMeo notwithslandine anv reqiAremern. iote oi cojidftfor- ol ary xntiaC oi othe- cocument

wftt: respec-, io wttanl ihis cenifi!;ate -iay bc- issued of may pertain, ihe irsiranec aRordod bry the odicies descmm- herein a, subec, to all Ilia (erms. exclus-OnS , mc tm- dilons 0: sucti Edicy
Type of insurance
Polloy No.

Ljawrx hsu-a-i, c . 0SM96MLWO003.

Insured Productf
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trsurft gnd exi3or-ec tc pd:cv ler-norv.

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Llmft of Insurance

USO 1.000.006. Each Occurrence LimilProcticts

LiablEty Aggegate I-Lmt. Canceftat on: Should ihis odty be eaqtOlft t*We tMe expraiion defe thereol.;he issuing compwy Nil; en(Umvo io rnall 30 dwys wiition notice to the insvfec tisrec to ft above. btA faiture to mail such now Shdl Imposeno 0019allOr OF liatithy Of any kin(i upon 1% InSurer. 41 agenls of epresentatives.

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EXHIBIL-~
PAGE
INVO03220

m:myrax - csowersox Law Flrm, P.C. To:Mary Anne Rayburn (15032249471)

19:18 07126I10GMT-04.Pg 18-18

ER-157
. ,

,.

Section 23:

N'atiacs
Mi uL16W gil.M un&-r thic zrra7umnt .hall 1,e wittra nnd .:cnt. vra r.giaa c.! cv xntfie.! mail .+r pmat. ,-,Tr6s, wwrt.-r l,uch a-?alF,'.Nl. All rxai.V; :hall hc ctiCaitN: hw tir-A rr,Li%.xi IA if tA Buver U to Buyer. Mr .lim Niakinna

invacare Corporation
+tnc )mac.vti Wm I:Ivna. c)lt 44093.4 19U t iSA TC.i: 1 -

'

'.

~lu. %Nirh u>ri~. D;mn;l ikmMixv. lnraeare Aeia li"Fl:r.lt(mtn I:u)l.rr2 hah itnu F*iuirncitd ('cnrrr Irrk, (ilLxaca.,tcr Rk-eJ I knrg K~xrp ;'.~

T~a-93?
Ihar S3? - 2d2R txiGh If to Seller:

Nr t li,%% urd )-lsith

CTE C."ration Ni, ?. Kung-Chien N. H.i.. I.iu Tu InduxA'ial Porl:. Kw1unF.'1'ai'pn R.O.C'. 'I rl W,-3-2433 24 :1 $3Ci 2-245_' 25.51)

. 1 .

1~
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EXH1B11'~L~ .

PAGE

lNV003221

ER-158
Statement of Jason Hubert
Estate of Kadene J..Willemson and James wiilemson v. Invacare Corporatlon, et al:..

July 30, 2010

No.0902-01853

1
1
1
2

3
1

1N THE CIRCUIT COURT OF THE STATE DF OREGON

FOR THE COUNTY OF MULTNOMAH JEFFREY WILLEMSEN, as Personal ) Representative of the Estate of ) KARLENE ]. WILLEMSEiN and JAMES )

(9:00 a.m.)

3
'4

2
3 4

PROCEEDINGS
THE COURT: Good morning. THE ATTORNEYS: Good moming, Your Honor. THE COURT: It looks like we're on the record, and this is the time set for oral argument on a motion to

5 6

WILLEMSEN,
Plainuffs, vs.

7
A
9 10 11 12 13

) No~o902-01653 > ) ) )
)

5. 6 7
8

INVACARE CORPORATION, a foreign ) rnrpotatton; UNITED SEATING & )

MOBILTTY, LLC., a foreign limited liabiliry company;

dismiss b y Defendant Invacare Co ~ oration, case numbers

0902-01653, Wlliemsen versus Invacare Corporation and other

9
) 10

CHINA TERMINAL & ELECTRIC

CORP., a forelgn corporation; ) CiE TECH CORP., a forefgn ) corporation; MOTION"CONCEPfS, ) INC., a foreign corporadon;. . ) PERPETUAL MOTION ENTERPRISES, ) LTD, a foreign corporation7 ) " ' PASS & SEYMOUR, INC., a foreign ) corporation; SIEMENS )

defendants.
So let me ask the attorneys to indicate their
names for the record. MR. BOWERSOX: Jeff Bowersox for plaintiff,
YoUr HonOr.

11
12 .13 14

14
15 16 17

cORPORATION, a foreign Automatlon, Inc., a foreign )

15

THE COURT: Okay.

corporatton; S[EMENS INDUSfRY, ) INC. , f/klas Siemens Energy and ) cmporatlon; SUMMERSGROUP , INC., dba REXEL, a foreign ) rnrporatlon; and GAW ELECTRIC, INC, an Oregon Corporation, )

16
17

MR. PEARCE: Richard Pearce for P lain ti ff.

THE COURT: AII right.

)
)

18 19
20

MS. RAYBURN: And Mary Anne Rayburn on behalf of CTE Tech Corp and China Terminal & Eiectric "~ and I'II refer to them as CTE. THE COURT: Okay. MS. RAYBURN: Thank you. THE COURT: AII right. MR. BOWERSOX: Your Honor, before we begin with the:CTE mottons to dismiss, piaintiff also has a

18

Defendants~
19
20

21 22 23 24 125

TRANSCRIPT OF PRDCEEDINGS

21
22

wly 30, 2010

Pages 1-17

23 24
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4 5 s

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3

BE IT'"REMEMBERED THAT the above - entitled Court and case came on regularly for hearing before THE HONORABLE RICHARD C. BALDWIN on Friday, the 30th day of ]uly, 2010,
at the Multnomah County Circuit Court, Portland, Oregon.

pending rrlotion to file a T11ird Amended Complaint which is unobIeCted t0, and I have a proposed order here and I have
paid the order fee. THE COURT: Okay. That's fne. I noticed that was unopposed,okay.
MS. RAYBURN: And from CTE's perspective, Your

,,: APPEARANCES
BOWERSOX LAW FIRM PC Jeffrey A. Bowersox

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Jeffrey@b)fpccom
5285 Meadows Road Suite 320

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Honor, the Third Amended Complaint does not change any of the allegations against my client, so they're the same for.
our purposes.

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Lake Oswego, OR97035 503.452.5858

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THE C.OURT: Okay. AII right, there you go.

Counsei forPlaintiffs
RICHARD C. PEARCE Attorney at Law Rcp@hevanet.com

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Okay, I have read the briefs and I have atso

read some case.law, and this is defendant's motion but

plaintiffs burden, so we'Ii go ahead with the defendants. MS. RAYBURN: Your Honor, I don't want to reiterate everythfng that's In our brlefs because I think we've set forth our position pretty cleariy, but just to

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921 SW Washington Street

suite 755 Portland, OR 97205

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503.223.2966 Counsel for Piaintiffs

MARTIN BISCHOFF TEMPLETON IANGSLET & HOFFMAN LLP
Mary Anne S. Rayburn

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:

recap a little bit, my client is based in Taivvan, it's a

Mraybum@marUnbisrhoff.com 888 SW 5th Avenue

Suite 900

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Taiwanese company. It has manufacturing plants in Taiwan and China. There are no contacts in manufacturing In the"
U.S. We don't have any distributors here, we have had no contact within the state of Oregon, we have no physical
presence here, we have no contracts in Oregon, we have not advertised 1n Qre an. g

Portland, OR97204
503.224.3113 Counsel for Defendants China Terminal & Electric Corp. and CTE TecJ1 Corp.

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THE COURT: Well, you have at least one

2e

battery here, and an alleged wrongful death as the result.

Bridge City Lega! . . 503.542.0902

I
'

ER-159
Statement of Jason Hubert
Estate of Kadene J. willemson and James 1Nalemsan v. Invacare Corporation, et al.

July 30, 2010 C

No. 0902-01653

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MS. RAYBURN: Yes, Your Honor. And THE COURT: So that makes it a little bit different than some of the other cases. MS. RAYBURN: It does make it a little bit different that we have a product here, but iP you'11 look, as we state In our brief there, we would be looking at ORCP 4(d) and perhaps 4(1) as possible bases for holding personal jurisdid:ion over CTE, but in applying those statutes, the Court must look at the limitations imposed by the due process clause of the 14th Amendment of the U.S. Constitution, and -THE COURT: Would you concede that this Hydraulic Servo Controls versus Dale Is controlling case law In plaintiffs favor on this motion unless federal constitutional law trumps7 MS. RAYBURN: It Is controlling to the extent that it was decided before Asahl five years later. As you will note in the Hydraulic Servo Control case, the Oregon Supreme Court noted that the U.S. Supreme Court had not yet opined on whether the existence of a product in the state or In the forum alone wouid be suffident to confer _ personal jurisdid5on on that defendant, and then five years later in the Asahl case, the U.S. Supreme Court ruled that that was insufficlent, that simply placing a product In the stream of commerce was not going to do It. _

Sb what you have -- what the Courts have said

2 Is you have to have more than just the product. You have 3 to have some concerted adMty within the state to meet the requirements of the U.S. Constitutlon, and there simply 4 5 is nothing here, Your Honor. We have a contract -THE COURT: No matter how much product or how 6 7 8 9 0 1 2 3 4 5 6 7 8 9 0 1 2 3 :4 5 6 much value Is arrived at as the result of the commercial activity? MS. RAYBURN: When that commercial activity is dired:ed by someone other than my ciient, Your Honor, my client has -- I think it's undisputed that my dient has a contrad: with Invacare in Ohio and supplles produds so _ that Invacare can incorporate it into its product, or into sale as a combination with Its product. We have no control or say how they are going to distribute the product, how they're going to market it. We are simply providing a pr.oduct to them and then Invacare distributes along its own distribution system, presumably. There is no contact with my client with anyone here in Oregon, including the retail -THE COURT: But your client knows that that activity includes dissemination of the manufactured produd: in every state. MS. RAYBURN: I think tfiere is -- that something is going to happen to those products, Your Honor,

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1 2 3 4 5 6 7 8 9 0 1 2 3 4 5 6 7 8 9 0 1 2 3 4 5 that they're going to be distributed. We don't now how Invacare is going to distribute them, whether it's Washington, Oregon, California, Mississippi, we simply supply them to Invacare and then Invacare takes it from there. THE- COURT: Okay. And what does the record Indicate as far as the scope of your client's batteries finding their way into the state of.Oregon with this with these wheelchairs? MS. RAYBURN: I don't believe that there's anything on the record right now as far as other than this particular battery In thls case, Your Honor. THE COURT: And your position is, for purposes of jurisdichlon, it's immaterial? MS. RAYBURN: Yes, because we did not direct anything specifically to Oregon. We have a reiationship with Invacare In Ohio. THE COURT: But if you know that a large volume of them are finding their way into Oregon over time and you're benefitting from that commercial activity, doesn't that put you in the category of reasonabiy expecting that you might be brought into court in that particuiar state? MS. RAYBURN: Not necessarily, Your Honor. I think that, again, it's controlled through Invacare on

1 2 3 4 5 6 7

THE COURT: But that wasn't a products liability issue. MS. RAYBURN: It had to -- the -THE COURT: It was an issue of -- the issue in that case was whether or not the -- the other company -- it was an indemnification issue. It was about

indemnification. MS. RAYBURN: But it still had to deal with the activity of,a defendant who supplied a product, a component part that was Incorporated into another product, and whether or not that defendant had activity within that state, and I think Asahi is controlling on that. THE COURT: But this Is an analysis for purposes of determining indemnification between co-defendants. MS. RAYBURN: I understand, Your Honor, but the underlying analysis, though, is you have to look at the defendant's ad:ivity within the forum state. If that wlll meet minimum due process requlrements of the statute, it is we cite in our brief a decision here in the -- that Judge Bedcman decided a few years ago on similar grounds where there was a contradt in South Carolina, and yes, there was perhaps jurisdiction there, but there was not.hing in Oregon that would meet the requirements of the due process. dause of the 14th Amendment.

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Bridge City Legal

503.542:0.902

ER-160
Statement of Jason Hubert
Estate af Kadene J: WBlemson and James WBlemson v. Invacare Corporation, et al.

July 30, 2010

No.0902-01653

1
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1 .2 3 4 5 6 what how they're going to do this. I'm not THE COURT: f3ut at some point, it becomes a joint undertaking. MS. RAYBURN: Well, there isn't anything the record to show that. There is a contract that shows that we sell X number or certain number of our battery chargers 1 2 3 4 ,5 6 application of the federal constitution and the case law interpreting it. THE COURT: Well, there's no question about that, but the.question is whether or not there's a binding federal court case that in effect overrules or trumps the Oregori Supreme Court case of Hydraulic Servo Controls.

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to Invacare. Invacare then takes them and uses them as

they see fit in the use of their -- in the markets of their product. We don't -- CTE doesn't do anything, doesn't undertake any activity specifically to the state of Oregon to say, okay, let's -- let's expand the market in Oregon.

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8 9 0 1

MS. RAYBURN: I believe, Your Honor, that the

Asahi case does meet those requirements. THE COURT: Which opinion in that case? MS. RAYBURN: The U.S. Supreme Court case.. THE COURT: Well, there's like three opinlons

2
3 4 5

They haven't done that. It's Invacare's responsibility,

and if there is a- and according to the contract, CTE has agreed that it has -- you know,. that a suit can be filed in Ohio. I mean they have consented to jurisdiction in Ohio,

2
3 4 5

there. What's the -- what's the binding holding of that

case? MS. RAYBURN: Ah. THE COURT: Because one of the opinions -- one

6
7

as I read the contract between Invacare and CTE.

THE COURT: Is it an exclusive contract in the

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7

of those opinions talks about this issue that I've been

asking questions on about the volume of product in the -

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sense that Invacare is only using CTE batteries?

MS. RAYBURN: I don't know that there is anything on the record on that. I think Invacare may well, I believe that there has been some Indication that Invacare uses another battery as well. MR. BOWERSOX: Your Honor, the only thing in

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state and the value of that distribution to the entity that

may as a result reasonably expect that they might get hauied into court in that state based on the volume. MS. RAYBURN: Within the state? THE COURT: Yes. MS. RAYBURN: The only record that we have

4
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the record is the contract, which was filed under seal at

Insistent of Invacare, and it provides that CTE is to be --

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5

here is that we have one -- one battery, and, as I said

eariier, Your Honor, : CTE doesn't control where the product

10
1 2 3 4 5 6 7 8 CTE Is not to manufacture this battery charger, for anyone other than Invacare. I don't think there's anything In the record that indicates what other sources Invacare may have for battery chargers. THE COURT: Okay, so it's exclusive in that sense, okay. AII right. MS. RAYBURN: But, Your Honor, I think going badc to the point is that there has to be something more 1 2 3 4 5 6 7 8 goes. That's through Invacare In its own marketing and sales of its product. THE COURT: Well, I don't think control is a determinative Issue under this case. Okay. And again, ICs not a products liability wrongful death case, iYs an indemnification case, and so the state's Interest here is substantiaAy different, In my view, and according to the Oregon Supreme Court in Hydraulic. They even found

12

than puttlng a product In the -- in the stream of wmmerce,

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jurisdiction there when the death was in California,

because it was an Oregon resident. AII right. Anything else? MS. RAYBURN: No, Your Honor. THE COURT: Do you have additional comment,s after Counsel's argument? MR. BOWERSOX: Thank you, Your Honor. I think that the key issue is Hydraulic Servo, and that case was dedded subsequent to Worldwlde Volkswagen, and then Circus

0. - that the case law is that there has to be some concerted 1 activity by the defendant within the state in order to 2 establish personal jurisdiction over that company, and I 3 think based on the Information that we have provided from 4 the affidavit from Mr. Chen and -5 THE COURT: What kind of case law Is that with 6 respect to a state -- Oregon state court? 7 MS. RAYBURN: I believe that it's the due

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process clause of the federal constitution. I think the -THE COURT: As Interpreted by what opinion? MS, RAYBURN: The Asahi, Your Honor, I believe does control. I think International Shoe, and the Helicopteros case speak to that, and we've cited that in our briefs, and even in our state courts have acknowledged, and as does the . plalntiff, that the federal court that the state courts are governed by the

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Circus was decided subsequent to the Burger IGng case.

Both of those cases, and indeed Asahi, affinn the principle that is enunaated In the Hydraulic Servo Controls case, thatwhen a defendant -- that it does not offend notions of fair play and due process to bring a defendant into a state court when the manufacturer of a product puts the product into the stream of commerce with an expectation that it will reach the consumer in the state where it is sued.

Bridge City Legal

503.542.0902

~
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ER-161
Statement of Jason Hubert
Estate of Karfene J. Willemson and James Willemson v. Invacare Corporatlon, et al.

July 30, 2010

No. 0902-01653

4 13
1

15'I 1 credibly assert that it was not aware that its products 2 would be distributed by Invacare throughout the United 3. States, and induding into Oregon. ;4 If the Court does not believe that the law is 5 clear enough based on Servo Control and the subsequent 6 Oregon Supreme Court of Appeals decisions, then we would 7 ask that we be allowed to actually conduct discovery to 8 further flesh out the Issue of how much of CTE's product 9 hasreached Oregon: 0 THE COURT: AII right. Anything further? 1 MS. RAYBURN: Your Honor, in resporise to the 2 production requests, we did respond fully with regard to 3 activity or informatlon reiated to Oregon, and.-- from CrE. 4 And what you will read from those discussions I mean 5 from the responses Is titat we don`t have anything, and the 6 only thing we have is this particular lawsuit. PlaintifPs 7 request asked for sales nationally and information that was

This is not a case; as you correctly polnted out, like Asahi, where it's simply an indemnity provision between two foreign companies, one in Japan and one In Taiwan who are fighting over cross-claims where the underlying personal injury and death clalms have already been resolved. The only unanimous portion of Asahl was the holding that in that attenuated dreumst.ance where it was an Indemnity claim with very litde.lnterestin the state
,

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of California, to pursue the claim and to require a foreign manufacturer to come to Califomia to litigate a cross-claim for indemnity, the unanimous holding of the Asahi court was that that did not comport with due process
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and notions of fair play and substantial justice. It's a-- the whofe rest of the case Is a plurality opinion, which means there is no holding that takes us away from the Burger King case for the United States Supreme Court and/or the Volkswagen case for the United States Supreme Court. Both of those cases have been analyzed by the Oregon Supreme Court in its analysis in both Servo Controls and THE COURT: But you still need a substantial connection to deal with this due process Issue. MR. BOWERSOX: Yes. THE COURT: And the record In this case, for all I can tell from the record, only one battery found its

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nationwide, but we gave -- we responded fully to the information that we had for Oregon, and there is nothing else that we have that CTE could suppiy in that regard. 0 ~1 THE COURT: Well, I think in Iight of,the ~ Asahi case that there Is some question about the adequacy of the record to support personal jurisdiction. In 4 falrness to plaintiff, I think they should have an f5 opportunity to supplement the record since they have the

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way to Oregon. = MR. BOWERSOX: That's an excellent point, Your Honor. There are two reasons. One Is that defendant CTE has refused to respond to requests for productioris of -request for production of documents, unilaterally Iimiting its response to Oregon contacts only, rather than the larger issue of injecting its products into the United States intentionally, because, as the Oregon Supreme Court held In Servo Controls, which is a very similar fact pattem, the Issue is not whether they -- whether CTE is physically present in Oregon, but simply whether it Intended by delivery of its component part to take advantage of the benefits of the laws and protections of the state of Oregon, whether that can be presumed when it participates in a distribution scheme that necessarily causes its product to come into various states. So in this case, almost Identically with Servo Controls, CTE has sold a battery charger to a national manufac-turer, internatlonal manufacturer, actualty, In the United States who then distributed Its FDA-approved products throughout the United States. As the exhibit that was filed under seal indicates, CTE was required to manufacture its products in a fashion that would comply wlth FDA standards because this . is a medical device,_so there's no'way, that CTE can,_ ... ..__._.__.. Bridge City Legal 503.542.0902 1 2 3 4 5 6 7 8 9 0 1 2 3 4 5 6 burden of establishing that there is a substantial connection and that that discovery would be appropriate to determine the volume and value of sales as to Oregon. So I'm going to take this under advisement, allow discovery on the jurisdictiona) Issue, and I'm thinking tttls will teke about 60 days to do so. Plaintiff may schedule a motion to compel as necessary and the partles can submit additional memos after discovery no later than 60 d.ays. If elther side wants additional argument after those memos are submitted and after discovery, elther stde can schedule oral argument, otherwise I'II just decide It on the record. MS. RAYBURN: Okay. MR. BOWERSOX: Thank you, Your Honor. .THE COURT: AII rlght, thank you. (Hearing adjourned at 9:24 a.m.)

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ER-162
St4tqm66(6f Jbion 1,164er(

July,30,

.'. 201 0

1,

k6di' A ..Mli

es-Wiflemson w nvacdm ipbTifik: k

:STATE OF OREGl?N

,eounty, of Wash"irigton: I, g,Aufoermauer , Pe ar,'cewcertl9 ijed Court Re" ;;. . I - . Xhe, SX~*e-~of-".*6jreqon.il,;Cer-,if Y" 't ibove,ne6titicd; ~i ? 6 ~Xprof,.the foregoi,"rig: pro,ecediri&!Ain ,':tM t I repor.tca',in. Ocnj~~ypp furphei 6r-tif~, to f~an'1'64 q . ;grm b-y.~ COpu"r, r :n!p

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TAMARX.'APFDE"Vq

BAdge-Llty Legal

503,542,990-2

n:MyFa* = Bowersox LawFirm, P.C. To:Mary Anne Rayburn (15032249471)

15:22 1 2/0611 0GMT-05 Pg 03-12

- ----- ER-163 --

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IN THE CIRCUTT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH JEFFREY WII LEMSEN, as Personal Representative of the Estate of KARLENE J. WII I.EMSEN and JAMES WILLEMSEN, Plaintiffs,
Case No. 0902--01653

10

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v_

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INVACARE CORPORATION, a foreign corporation; UNITED SEATING & MOBILITY, LLC., a foreign limited liability 14' comp any~, CHINA TERMINAL & ~ ELECTRIC CORl'., a foreign corporation; 15 CTE TECH CORP., a forei gn corporation;

PLAINTIFFS' SUPPLE11+tENTAL BRIEF 1N OPPOSITION TO CTE DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

13

ORAL ARGUMENT REQUESTED

MOTION CONCEPTS, INC., a foreign .

16 17 18 19 20 21
22:

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corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS & SEYMOUR, INC-., a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, INC, f/k/as Siemens Energy and Automation, Inc., a foreign corporation; SUMMERS GROUP, INC., dba REXBL., a foreign corporation; and GAW ELECTRIC, INC. an Oregon Corporation, Defendants.

23

BRIEF BACKGRO ,This is an action for wrongful death and property damage. Karlene Willemsen suffered from multiple sclerosis. She died when she was unable to escape her bed when it was engulfed in flames.

24 25

26 Plaintiffs allege the fire was ignited by one or more defecxive electrical components, including the 27
21 1

electrical charging system of her motorized wheelchair. China Terminal & F.lectric Corp, and CTE, ' Page 1- PLAINTIFFS' SUPPLEMENTAL BRIEF IN OPPOSITION TO CTE DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Soaexswc LAw Fbw. P.C.
. 520 Idevdovs Rd.. Sai2 )7D, I.ake o,wego. Oregoa 97033 .

(50)452-5e58 .

m:PAyFar - Bowersox Law Flrm, P.C. To:Mary Anne Rayburn (15032249471) _...._

15:22 12106110GMT-05 Pg 04-12 ~

ER-164
1 ~ 2 3

Tech Corp. (collectively herein "CTE") manufactured t.he battery charger sold as part of, and delivered with, Ms. Willemsen's Invacare wheelchair. CTE claims it cannot be sued in Oregon's

n state court.
CTE HAS SUFFICIENT CONTACTS WITH OREGON T HERE This matter has previously been briefed in greater detail for the court and a hearing was held

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on July 30, 2010. At the close of the hearing prior to the court's ruling, it was agreed that plaintiffs

7'
would seek additional facts through discovery from CTE and/or Invacare regarding the nurnberof

8
CTE chargers delivered into Oregon through Invacare's distribution system. Plaintiffs sought the

9 10
deposition of an Invacare corporate representative most knowledgeable about those facts. Invacare then provided a Declaration of its representative providing the same information. That Declaration was provided to the court on October 25, 2010. A true copy of the Declaration of Michael Romano

1
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is attached to tliis memorandum as Exhibit 1.

13
The Declaration establishes that CTE's battery chargers are regularly delivered into Oregon

14
through the Invcare distribution network. As has been set out in the prior briefmg in this matter,

15
CTE's contract with Invcare establishes that the CTE component parts to the lnvacare wheelchair

16 17 ~ 18
'Ihe state of Oregon has a very strong interest in exercising jurisdiction over manufacturers must meet stat.e and federal regulations for medical devices. Thousands of Oregonians are dependent on CTE's compliance with good manufacturing standards to ensure their personal safety.

19 ' 20 21 ~ 22 i 23
courts. address in personam jurisdiction supports the proposition that CTE can purposefully avail itself of the benefits of Oregon's market yet refuse to be held accountable for product defects in our state of inedical devices delivered into the state of Oregon and used by its citizens. Nothing in Oregon's statutory ftamework or judicial decisions nor in the key United States Supreme Court decisions that

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Page 2- PI.AINTIFFS' SUPPL.EMENTAL BRIEF IN OPPOSITION TO CTE DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Bownaox I.Aw P1tM, P.C. 5M Mudom Rd., Suue 3-V
' . Lake (huego. 0-wn 974]S (503) 452-5858 . . .

)wersox Law Firm; P.C. To:PAary Anne Rayburn (15032249471) ~ - - --- -- ---

15:22 12I06I10GMT-05 Pg 05-12 AT"\

ER-165
CONCLUSION

Plaintiff has adequately established that CTE has sufficient minimum contacts with the state of Oregon forthe purpose of exercising personal jurisdiction in this product liability and negligence ; wrongful deatli and property damage lawsuit. The motion to disnliss should be denied. DATED: December ~a, 2010

Page 3- PL.AINTIFFS' SUPPLEMENTAL BRIEF IN OPPOSITION TO CTE DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JiJRISDICTION
-. BOwFx= [.GV POw. P.C.
5Z85 ideadows Rd.. So1e 310

laloe (kwVP. oresa 91035, .

(503) 4325858 .

m:MyFox - Bowersox Law Firm, P.C. To:Mary Anne Rayburn (15032249471)

15:22 1 2/0611 0GMT-O5 Pg 09-12

ER-166
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1 2

CERTIFICATE OF SERVICE 1 hereby certify that I served a true and correct copy of the foregoing DECLARATEON

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OF MICHAEL ROMANO on the date indicated beiow by

u u u maii with postage prepaid, deposited in the US mail at Portland, Oregon, hand deiivery, facsimiie transmission, ovemight deiivery,

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1 further certify that said copy was piaced in a seaied enveiope deiivered as
indicated above and addressed to said attome ~ at the addresses iisted beiow: Jeffrey A. Bowersox Bowersox Law Firm PC Kruse Woods 1 5285 Meadows Rd., Suite 320 Lake Oswego, OR 97035 Of Attomeys for PlaintifF Willemsen Jay W. Beattie Lindsay Hart Neil & Wei gier LLP 1300 SW Fifth Avenue, Suite 3400 Portland, OR 97201-5640

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Of Attomeys for Defendant United Seating and Mobility

Richard C. Pearce

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Attomey at Law
921 SW Washington Street, Suite 755 Portland, OR 97205-2825 Of Attomeys for Safeco Mary-Anne S. Raybum Martin Bischoff Tempteton Langslet & Hoffman LLP 888 S.W. 5th Avenue, Suite 900 Pordand, OR 97204 Of Attomeys for Defendants CTE Tech Corp. and China Terminai & Electric Corp. Ryan J. McLeUan

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Smith Freed S Eberhard PC

26 111 SW Flfth Avenue, Suite 4300 Porttand, OR 97204 Of Attomeys for Defendant Summers Group, Inc.

Page 1 CERTIFICATE OF SERVICE

1053760

EXHIBIT 1
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m:MyFax - Bowersox Law Flrm, P.C. To:PAary Anne Rayburn (15032249471)

'. ' P " .. ._~.

15:22 12106110GMT-05 Pg 10-12

.. ._ _

ER-167
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I I I I I I I I I I I

Joshua P. Stump

Harran g Long Gary Rudnicic

2 1001 SW 5th Avenue, 16th F1oor Portland, OR 97204 3 Of Attomeys for Defendant Siemens Corporatton
4

Julia Farreli
5 Husch Blackwell Sanders LLP 190 Carondelet Plaza, Suite 600 e Saint Louis, MO 63105-3441 Of Attomeys for Defendant Siemens Corporation
7

e Heather Beasley Davis Rothwell Earle & Xochihua P.C. 9 111 SW Fifth Avenue, Suite 2700 _ Portland OR 97204-3654 14 Of Attomeys for.Defendant GAW Electric, Inc.
11

Ronald J. Clark

888 SW 5th Ave., Suite 300 13 Portland, OR 97204-2089 Of Attomeys for Defendant Pass & Seymour, Inc. 14 DATED: September 28, 2010
15

12 Builivant Houser Bailey

Nicholas E. Wheeler

18 17 18 19 20 21 22 23 24 25 26 -

Page 2 CERTIFICATE OF SERVICE

10:f3760
cO8QNAY[ vlAaEHI KE6fERW "

eeeswero.~trn%o. padhoc cm vm

twMam

EXHIBIT 1

m:MyFax - Bowersox Law Firm, P.C. To:PAary Anne Rayburn (15032249471)

15:22 12106110GMT-05 Pg 11-12

~

0-r1\ ER-168 - -.
1 ' ~ 2 DECLARATION OF SERV ICE

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I declare under penalty of petjury of the laws of the state of Oregon that I caused to be served in the manner indicated a true and accurate copy of the foregoing PLAINTIFFS' SUPPLEMENTAL 3 BRIEF IN OPPOSITION TO CTE DEFENDANTS' MOTION TO DL4MISS FOR LACK OF PERSONAL JURISDICTION:
Walter H. Sweek Cosgrave Vergeer Kester I.LR 805 SW Broadway, 8th Floor Portland, OR 97205
Anorney for Invacare Corporation, Motion Cancepts, Inc. cmd Perpetual Motion F.nterprises

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8

By Hand Delivery By U.S. Mail K By Facsimile K By Email Attachment

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Jay W Beattie Lindsay Hart Neil & Weigier LLP 1300 SW 5th Ave Ste 3400 Pordand OR 97201 Attorney for United Seating & Mobility, LLC Mary-Anne Rayburn Mattin Bischoff Templeton Langslet & Hoffinan I.LP 888 SW 5th Ave, Suite 900 Portland, OR 97204 Attorney for CTE Tech Corp and China Terminal & Electric Corp Ronald J Clark Bullivant Houser Bailey PC 888 SW 5th Ave Ste 300 Portland OR 97204 Atrorney for Pass & Seymour, Inc. Heather C Beasley Davis Rothwell Earle & Xochihua PC 111 SW 5th Ave Ste 2700 Portland OR 97204 Attorney for GAW Electric, Inc. Joshua P Stump Harrang I.ang Gary Rudnick PC 1001 SW 5th Ave 16th Flr Portland OR 97204 Attorney for Siemens Industry, Inc.

By Hand Delivery By U.S. Mail K By Facsimile K By Email Attachment

By Hand Delivery By U.S. Mail K By Facsimile K By Email Attachment

By Hand Delivery 0 By U.S. Mail KBy Facsirnile . By Fmad Attachment By Hand Delivery By U.S. Mail KBy Facsimile . By Fmaa Attachment By Hand Deiivery. By U.S Mail By Facsimile By Email Attachment

27 28
Page 4- PLAINTIFFS' SUPPLEMENTAL BRIEF IN OPPOSTTION TO CTE DEFENDANTS' MOTION TO DI.SMISS FOR LACK OF PERSONAL JURISDICTION
_ BOwFx400c LAa FLw. P.C.
5285 Meadovs Rd.. Sae no Lake O+rego.Ovnn 9idiS (303)432-5858 .

m:MyF,ax - Bowersox Law Firm, P.C. To:Mary Anhe Rayburn (15032249471)

15:22 12106I10GMT-05 Pg 12712

ER-169 - --.

AV

Christine F Miller, admitted pro hac vice Julia T. Farrell, admitted pro hac vice J. Claire Todorovich, admitted pro hac vice 190 Carondelet Plaza, Suite 600 St. Louis, MO 63105
Attorney for Siemens Industry, Inc.

By Hand Delivery By U.S. Mail K By Facsimile K By Email Attachment

Ryan McLellan Smith Freed & Eberhard PC 111 SW 5th Ave 43rd Flr Portland OR 97204
Attorney for Sununers Group, Inc.

By Hand Delivery By U.S. Mail By.Facsimile gy E~ Attachment

Richard C. Pearce 921 SW Washington St, Suite 755 Portland, OR 97205

Co-Counsel for Plaintiffs

By Hand Detivery By U.S. Mail X By Facsimi)e By Emai) Attachment

Signed and dated at Portland, Oregon this 6 b day of Decenlber, 2010.

KirAerly A. Riedl

Page 5- PLAINTIrFS' SUPPLEMENTAL BRIEF IN OPPOSITION TO CTE DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
. HowviSOx t.Aw FMM, P.C5285 Meadows itd, Suae 7'HI
. . IaIce Osv/egu. om@Oa 91031 (503) 4S2-5978

---

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~~

ER-170

1 2 3
4

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S 6 7 g

IN THE .CIRCUTT GOURT OF THE STATE OF OREG.ON FOR THE COUNTY OF MIJLTNOMAH JEFFREY WIF.,LEMSEN, as Personal, ,.: .. Representative of the -Estate. of KARLENE J. WII;LEMSEN and JAMES WILLElY1SEN,

Case No.: 0902-0:1653

~

r
' ~.

9 V. _ 10
..

Plai.ntiffs,. INVACARE CORPORATION, a foreign~ . : . ,._ .corporation, Ui~1ITED_SEATING:&: `.: .. _: .:.: MOBILTTY, LL; C, a foreign aunrted,hability : company; CHINA TERMINAL &:ELECTRIC CORP ,:a foreign, corporahon; CTE TECH CORP , a foreign corporation; MOTION . CONCEPTS,INC ; a foreign .corporahon; _ PERPETUAL MOTION EN'TERPRISES;'LTD, a :foreign.corporahon;:PASS & SEYMOLIR, INC , a foreign corporathon, SIENiENS CORPORATION, a foreign eorporation, -, . _. SIEMENS INDUSTRY, INC; f/k/as Siemens Energy and Automatioin,rInc.;.a foreign corporation, SUIVIlVIERS GR.OUP',~INC., dlia REXEL; .a foreign corporation, and GAW ELECTRIC, INC ,-an Oregon corporation. ,.
Defendants:
.. ,

1:1 12 13 14

DEFEND,ANTS. CTE TECH CORP, .~ S AND CHINA TERMINAL & ELECTRIC: CORP:' S SUPPLEMENTAL REPLY IN, SUPPORT OF . ITS MOTION TO DISl~!1ISS. FOR LACK OF _ .. . .. v. P_ERSONALJURISDICTION ORAL ARGUMENT+ REQUESTED

16 17 1$

19

..

20 21 ' 22 23
24

s Defendant : CTE Tech Corp. and Cliina Terminal and Electric Corp. (a:prior business'name 'of CTE Tech Corp:) (collectively referred to as "CTE") hereby supplement the Court's record in support of CTE's Motion to_Dismiss for Lack of Personal Junsdiction.. . ,. INTRODUCTION
~

I=Iearing_was.held ori Defendant CTE . s Motion to Disnuss for Lack ofPersorial Jurisdiction on July 30, 2010. At the close of hearing, the Court granted Plaintiffs' request to conduct, limited jurisdictional discovery . regarding. CTE's contacts with Oregon. The Court explained': "
DEFENDANTS CTE TECHCORP.'S AND CHINA TERMINAL &
. . ' ..

25 26

PaO e 1 O
.

~TIN; BISCHOFe,'TEMNLErON,
LANGSLET 3 NoFF.MAN LLP'
888 SW FiRh;Avenue: Sidte 9U0 Poruayi , OR 97204 Telephone (503) 224-3113

ELECTRIC. CORP.'S- SUPPLEMENTAL REPLY IN SUPPORT OF ITS

MOTION TO:DISMISS

/+~meys
a

. - ---=- - -- -- -- -----ER-171

~)

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1 ~
2

I think. [Plaintiffs] should have an opportunity to supplement the record since they have the burden of establishing that there is a substantial connection and that discovery would be appropriate to determine the volume and value ofsales as to Oregon.

4 (Ex. 1, pp. 15:2146:3) (Emphasis added). ~ 5 The hearing was held over four rnonths ago. Since that time, Plaintiffs have not produced or

6 uncovered ariy jurisdictional evidence establishing that CTE had a"substaritial connection" with or

7 purposefully directed activities toward Oiegon. In its original motion, CTE produced evidence
8 showin that~ it has rio contacts or deali rigs within or iri Oregon. Now, Plainhfs submit a declaration g

'.
~ ~
~

9 from co-Defendant Invacaie Corporation ("Invacare'~ showing Invacare's commercial activity . in

10 ~egon. Plaintiff's. Supplemental Bnef aind supporhng declaration emphasize that CTE's battery l l ehargers;are dehver.ed mto:"Oregon ;through `_`.the. Invacare distribution netxworlc ''._ (Plaintiff's. . 1.2 Supplemental Bnef, :p. 2) (Emphasis added). Neither :the~SUpplemental Brief nor the declaratiori 13 makes any attempt to'establish that CTE had an,active role in the Invacare'distribution network. Tlie .
14 declaration ' s content is irretevant. because it fails to establish, under federal constitutional due

15 p.rocess analysis, that this Court has personal ju ri sdiction over CTE. Namely, the declaration lacks
-

16. anY factual information r-egardiiig CTE's activities,.intent, or purposeful contacts with Oregon. CTE _.
"

1 7 has shown; that it has: no such coritacts. Therefore, ~Plaintiffs' supplemeiital filing does not assist
1 g theni in satisfyiiig their burden of proving coustitutionally,suffic'ient iriiriimutn coritacts or purposeful

1.9 avarlment with respect to this State. ~ 20 The constitutional "limits "of personal jurisdiction are -well-defined. The exercise of personal

2 i jurisdiction must comport with tfie due process" requirement of "minimum contacts" between 22 defendant and tlie forum- state. This'requires the plaintiffto supply jurisdictional facts showing that - 23 , the foreign defendarit purposefully dire activities "to and/or iintended to serve the forum state.. cted
24.

Plamtiffs in the instant case have not supplied ,any such jurisdictional facts. At best, they have

25 shown that a third party, Invacare, incorporated a small perceiitage of CTE coinponent parts into its 26 wheelchairs and- shipped them, to Oregon (and presu:mably every other state) without CTE's. DEFENDANTS. CTE TECH CORP.'S AND CHIIVA TERMINAL &
ELECTRIC CORP.' S SUPPLEMENTAL REPLY IN SUPPORT OF iTS MOTION TO DISMISS
~ NGS6Ef 8 HOF MAN LLP N' O Attomeys at law : " 888 SYV Fdth Avenue..siuite 9Uo Telephone (503) 724=3113

Page 2

Porgarta; oR. 97204

ER-172 .

1 lmowledge or involvement. This li-mited showing does not satisfy any delineation of the due process , 2 rriinim um contacts standard. As explained further below ; the Court should decline Plaintiffs' 3 invitation to strip away the "purposeful" from purposeful availmerit, and it should refuse to base
~

4 per-sonal jurisdiction soleiy on the.conduct of Invacare: 5 ~ .6 I.

COntacts.

ARGUNMNT The Invacare Declaration Does Not Establish Pumoseful Availment/Minimum

:. _

7
8 9 Plamtiffs wrongfully believe that personal ~urisdretion can be based on.g.erieral, non-forum= specific irivolvement in national ,commerce. To this erid, they have submitted the declaration of

10,Invacare's Globai Strategic: Comiiiodity Manager, Michael Romano, to show:.the value and volume , .. , _ ._ s . . .. of CTE .hatte ry-chargers wliich Invacare 'shipped to C+regon in 2006 and 2007. With respect-to 11 12 13 14 personal: jurisdiction, the declaration is most telling for what it omits 'It does not provide any factual support for Plairitiffs'. conclusory allegation that CTE intendedao derive an economic .beriefit in . Oregon.. CTE denies and"the declaration does not make any factual asserhons tliat: 1:) CTE was:involved with Invacare's decision to sell wheelchairs--to Oregon refailers/customers; 2) CTE had.knowledge of Invacare's wheelchair sales to C+iegon; 17 3) CTE directed any activitieS to Oregoii; 18.

'

'

15 16

~ 19 . s 21 20

4) CTE intended to or made specific: efforts to serve. the Oregon market; 5) CTE solicited profits or customers in Oregon; 6) CTE ever had any contact with any Oregon custoiners; or 7) CTE;had, any physical contact with Oregon;

22 23 24 25 26 _ Page 3 _DEFENDANI S . CTE TECH CORP. ~S AND CH1NA,_TERMINAL &. _ . . . ELECTRIC CQRP:' S SUPPLEMENTAL REPLY IN SUPPORT OF ITS MOTIQN TO DISMISS ~MARTIJ, BISCHOFF, TEMPLEfON, ,s,r,csLFr a HoFFn~AN, LLP . Attomeys atlaw . 888 sVV Fith Avenue, Suite 900 Po~a; oa 97204 Tdephone'(503J2'24-3113. In short; the declaration establishes only Invacare's knowledge, intent, and activities relating to" Ore on. It does not rebut tlie factiial assertions set forth in. CTE's Motioin to Dismiss an th e g d. supporting d'eclaration of Peter Chen, that CTE never directed any commercial activities-to Oregon.

-ER-173 ~

I
1 As explained further below, U.S. Supreme Court's plurality opinion in Asahi is the law of the

'
~

2 Ninth Circuit Court' of Appeals and U.S. District Court of Oregon. Asahi is a plurality opinion 3 whereby four justices of the U.S. Supreme Court endorsed the view that personal. jurisdiction 4 requires more than placing aproduct into the stream of.commerce, where the stream eventually

'

51 sweeps the defendant's products into the forum state without the defendant doing anything else to 6 avail itself of the marketin the forum state. Asahi Metal Industry Co., LTD v. Superior Court of

7 California, 480 US 102, 110 (1987). The four justice plurality held that P ersonal 'urisdiction must
}

t
~

8 be based on some "additional conduct" by the defendant.to indicate the.defendant's intent to serve 9 the market in, the foruin: Id at 112: 10 Factually, the CTE declaiation only shows that,. over a two year.penod of 2006 and 2007, ~ : roughlyone percent of Invacare=s accounts payable:to CTE:can-be-indirectlyconnected to Oregon: -

~ - 1-1

12 .'IThe decl'arahon does not supplyany facts to 'support'.the coriclusion that;CTE played an active-role ~ 13 iIl, o% even had knowledge of, `the Invacare distribution network:." Moreover, when the Invacare 14 sales stafistics are put m contexf, they establish at besf a very negligible (arid indirect) connection ' 15 between CTE prodiicts and Oregon. According W. the Invacare statisthes; Invacare sliipped between 16 <0 12 aud .014 of the value of its inventory of CTE products to Oregon during the two year period of ' 17 2006 ihrough 2007.1 . Extrapolating Invacare's statistics to the overall U:S. marketplace,.it is not 18 difficult to. assume that Invacare likewise distributed.at ieast one percent of CTE's total value of U.S. 19 accounts receivable to. each of the 50 states. Plaintiffs believe that,this is enough to justify personal , 20 jurisdiction in Oregon: Thus,. they are, in effect ; advocatiing for nationwide personal ju.risdiction.

2:1
,
'

22
1 The contents of tlie Invacare declaration were fiiled-under seal.. The declaration includes 23 sales statistics which Invacare is treating as conf dential/propfietary. CTE used these sales statistics 24 to calculate that Oregon-bound CTE products accounted for :012 to .014 of Invacare's accourits payable to CTE ~u 2006 and 2007. .CTE r.eached this figure by dividing the dollar value of Oregon25 bound` CTE products by the total amount of Invacare's accourits payable to CTE (per the statistics uicluded in the declaration). CTE is willing to file a supplemental footnote under seal, explaining. reach the .012,to .014 figure, if requested by the Court. If 26 the numbers it used tothe figure was reached duruig heanng on this supplehiental not, CTE will explain iu detail fiow briefing. Page 4 DEFENDANTS CTE T'ECH`CORP.' S AND C] jINA TERNIINAL &
ELECTRIC CORP.' S SUPPLEMENTAL REPLY IN SUPPORT OF 1`TS MOTION TO DISIVIISS
MARTW, 81SCHOFF TEMp[ETON .

LANGSLET 8 HOf.F,AAAN LLP

Telephane (503) 224-3113 .

888 SW Filh Avenue? Suile.900

"~`"e~ ~' `~`" Poruana; OR 97204

0 I
3

ER-174

1 Their positioii is contrary to the U.S. Supreme Court's long-established reqiiirements of purposeful 2 availment, substantial connection, and/or activities directed toward the forum state. Personal jurisdiction is not a matter of quantifying iridirect economic benefits that can be

4 traced back from a state. Instead, it is concerned.with purposeful', yoluntary ; and knowing.contacts 5 between a foreign defendant and the forum state. invacare's declaratioin is comptetely devoid of any

I I

6 sucli showing. Therefore, Platntiffs have -not provided ev'idence that CTE is suliject to personal 7 jurisdiction, iri Oregon. 8 9 1. Asahi's.Pluralrtv-Dpuuori-Re,presents the Accepted Ninth Circuit and Oregon Feder.al , Dist ri ct Court Interpretation of Federal Due Process on Ouestions of Stream of _ T ' Corrimerce:Personal Junsdtction:
'Tfie'Asahi pluralityrequiremeiit of "additional conduct" of "something more" is the

II.

1-1:

12

~ ~ I I

13

. .

14 recognized federal interpretation of coristitutional diie process in tfie Ninth Cucuit and the U.S. 15 District of Oregon: See e.g., Holland America Line, Inc. ;. 485 F3d at 459; Doe V. American Nat'1: ' 16
Red Cross, 112 F3d 1048, 105.1 (9 t ' Cir.1997); Omelukv Langsten Slip. andBatbyggeri A/S, 52 F3d

17 267, 271 (9~' Cir 1-995); Adidas America, Inc..v. Topline Corporation, 2009 WL 1. 270256 (D Or. May .18 5, 2009); Espinoza v: Bli.tz, -2004 WL 2165358 (D Or S .ept. 24, 2004); Sunset Fuel v.. Zanjani,-1997 19 WL 11.8440 (D .Or February 26, 1997); see also,. Findings. and Recommendations- of U.S.'Magistrate 20 Judge John 7elderks in.Faber v. Borribardier, Inc.,,U.S. District of Oregon Case No. 04. -CV .645 21 (2005),. attached as Exhibit 2 to the onginal motion. , 22 The Ninth Circuit Court of Appeals and lower federal'courts within the. circuit are in accord 23 that-a foreign defendant is not subject to personal jurisdiction based merely oin a showing thafthe 24 defendant's product found its way into the forum state. See e.g., Id. Instead, the plaintiff must offer , . 25jurisdictional. proof showing tfiat the foreign defendant affirrriatively directed activities to the. forum , 26 and its residents. Id.

1 ~

1 -

Page 5

+ DEFENDAN'TS C`I'E TECH CORP. S AND CHINA TERNIIlINAL & ELECTRIC CORP.'S SUPPLEMENTAL REPLY I1V SUPPORT OF ITS MOTION TO DISMISS

MARTIN:8ISCHOFF;.TEMPLETON;

LANGSCEr:& HOFFMAN LLP

ees Sw Fl~~ A~venaue S'uite 900 PoRland; OR 97204' r~~no~.~~n3 j, 224-3113

 ER-175

1
2

2.

Asahi's Plurality Opinion Should be Afforded Due Weight in the Court's

Constitutional Analysis of tlie Limits of Federal Due Process.

Asahi's plurality interpretation of the limits of federal due process is binding or, at a minimum, highly persuasive legal authority in the present case. Oregon state courts are bound by U.S. Supreme Court interpretations of federal law. State v. Moyle, 299 Or 691, 707, 705 P2d 740 (1985). In addition,.Oregon state.courts will ordinarily respect decisions of lower federal courts on issues of federal law that.are unresolved by the U.S. Supreme Court. State v. Reyes-Camarena, 330 Or 431, 436, 7 P3d 522 (2000); Yan De Hey v. U.S. Nat. Bank of Oregon; 102 Or App 203, 206:=207, 793 P2&1388'(1990). Sucli decisions, particulairly those`involving.questions of fedeial constitutional law, are corisidered`highly peisuasive: See e:g., t1~Ioyle, 299 Or at 707. In fact,-the Asahi-plurahty opinion; whicfi was issued fiveyeais-after State, ex ; re1. Flydraulic- ~,.

3 4 5 6 7 8 9

'

10 - 11 12 13

Servocontrols Corp: v. Dale, 294 Or 381, 657 P2d 211 (1982), has been cited favorably by the. Oregon Court of Appeals: See, .Iolinson v. Peacock Lumber Company, .Inc., 95 Or App 710, 714, . 770 P2d 960 (1989). (holding that.ldaho .court's exercise of jurisdiction over Oregon company
. ~ .

14. .15 16 ~

violated federal due.process; despite Oregon coinpany's iritroduction of its products into stream,of commer"ce with some awareness that they might end up in.Idaho). In addition, CTE obtained
,.

17,. briefing and ari Order from the recent 1Vlultnomah County Circuit Court case of Michael Hamlett V. 18 19 Daimler.Trucks. North:Amenca, LLC, et al., Case No. 0908-11102; in . wliich Judge Roberts:grarited German defendant:Daimler AG's motion.to disrniss for lack`of
,

1.

20 21 22
23.

personal jurisdiction-based iipon facts similar to the case at.bar. 2 Tlie Court in;the present case is not faced with a situation where`the U.S. Supreme Court is siient on.the fede'ral_constitutional question'before it:. The U.S. Supreme Court has ruled, albeitby a
Z Atta.ched as Exhibit l to tlus supplemental brief is the Motion to Dismiss azi"d Order Grainting Defendant Daimler AG's Motion to Dismiss For Lack of Personal Jurisdiction and Oider Grantuig Daimler AG's Nlotion to Dismiss froni the Harrilett inatter. Defendant Daimler AG cites .Iohnson; 95 Or. App at 714 and Asahz, 480 US , at 112, (Motion at p. 7); for the proposition that:the placemerit of~a product mto the stream of commerce, without more, does not constitute purposeful availment. for thepurposes of establish uig personal jurisdiction.

24 25 26

Page 6

DEFENDANTS CTE TECH CORP.'S AND CIIIl~TA TERMIN AL &

ELECTRIC CORP.' S SUPPLElY1ENTAL REPLY IN SUPPORT OF ITS MOTION TO DISIVIISS

~T~N . BISCHOFF; 7EMPLErofJ, LANGSLEf & HOFFMAN LLP

eea sw Fta"' nv ,a~e s~ soo , ~ Pa~a, oR ezzoa . . Telephone
(503) 224.31131

e
,

ER-176

1 plutality opimon, that fedeial due process requires more thaii placing prodticts into the stream of 2 commerce to support personal jurisdiction. Asahi, 480 US at 110412. This U.S. Suprem Court 3 plurality ruling is recognized by the Ninth Circuit Court of Appeals and the U.S. District Court of .4 Oregon as binding constitutional law. This Court should defer to the U.S. Supreme Court four judge 5 plurality, the Ninth Circuit Court of Appeals, and the U.S. District Court of Oregon's interpretation 6 of federal constitiutional law, arid hold that Plaintiffs rriust show "additional conduct" to subject CTE 7 to perso nal.jurisdiction in Oregon.
8

3.

9 . 10

The Fact that Asahi Involved a Claun for Indemnity Has No Beaiing on the.Court's Analysis of Constitutional IVlmimum Contacts 1n this Case.

Finally,. the'fact that Asahi involved a claim for mdemnity is irrelevant.to the minirimum.

' ,.
~

11 contacts anatysis It is worth noting thatAsahi;;s piurahty opunon,and rationale have been,adopted . 12 and,applied in the above-cited NinthZircuit Court of Appeals and. :U S; District Court.cases; - none of 13 wmch'involve claims for indemnity. The due process analysis is not coricerned with.the nature of 14 the action and/or competing state intecests until after the plairitiff fias , made an initialfactual showing 15 of minimum:contacts. Due process analysis is a two-step.process-that first requires the'plaiiitiffto 16 prove that the defendant has constitutionally sufficient contacts with the forum state: to exercise
17

'urisdiction. Second, if the P laintiff has established minimum, contacts, the court is then " p ersonalJ.

18 directed :to arialyze. tfie; fairness of exercising personal j;urisdiction over the foreign defendant. A 19 court may refuse to exercise .personal jurisdiction if it does not comport.witli "traditional notions of 20 fair playand substantial justice:" Tlie U.S. Supreme Court explained this two-step process in the
21 Asdh.i concurring.opiniori3:

22 23
3 The concurring opinion was joined by all of the remaining justices who did iiot endorse the 24 plurality opinion These justices concurred in the piuiality's holdirig, but based their decision on the 25 conclusion that California's exercise of personallurisdiction did not coinport with- "traditional nothons of 1air play and substantial justice." One of the factors. considered by the justices in making 26 thi.s decision was the fact that Ca li fornia had little interest in litigating an indemnity action between two. foreign parhes. Id at 114.

Page 7

DEFENDAN'PS CTE TECH COR:P.'S AND CHINA TE R~~NAL &

ELECTRIC. CORP.' S SiJPPLEIVIENTAL _REPLY IIV SUPPORT OF ITS MOTION TO DISMISS

a+.aRnN, eiscHOFF, TeMPLFTON, LANG_SLET &.HOFFMAN LLP

at `a'" aee sw 'u`n1e''S sui~ soo Fdm nwnue,
PoAland,.OR 97204 Telephdne (503) 224-3113

ER-177

1
2 _ ,
5 6 7

'

3 4

When minimum contacts have been established, often the interests of the plaintiff and the forum in the exercise of jurisdiction will justify even serious burdens placed on the alien defendant. Iri the present case,. however, the interests of the plaintiff and the forum in California's assertion of jurisdiction over Asahi is slight. All that remains is a claim for indemnification.asserted by Cheng Shing, a Taiw.anese corripany, against Asahi... :Id at 114. CTE is not, at least at this point, cfiallenging Oregon jurisdiction on the basis that it does not
~

comport with traditional notions of faii play or substantial justice. Instead, personal jurisdiction is not proper because CTE lacks constitutionally sufficient minimum contacts with Oregon. The Court . _ need not' even address the question of fairness - because Plaintiffs have not.offered any ptoof that CTE took purposefuT:action to avail itselfof the Oregon inarket Therefore ; tlie., indemnity versus nonindemiuty distinction hasno bearing on the..issueieurrently tiefore the-Court.

' ~

8
9

10
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CONCLUSION ' ' 12

For the reasons above arid those set forth m CTE's inotion aiid reply, CTE asks thatthis 13

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Court dismiss Plaintiffs' action against CTE. DATED: - December 21, 20,10: .

14 15
16 MARTIN, BISCHOFF, TEMPLETON ; LANGSLET & HOFFMAN LLP ' By: Mary-Anne Raybum, OSB'No: 803680 Stephen P::I'oshida, OSB No:.044588 888 S.W.Fifth Avenue, Suite 900 Portland, OR 97204 Telephone: 503-224-3113
Fax: 503-224-9471

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17
lg 19

20
21 .,

22 23

E Mail inrayburn@martinbischoff:com . E-Mail syoshida@martinbischoff.com .. . . , , Of Attorneys for CTE TECH CORP. and CHINA TER11!IINAL & ELECTRIC CORP.
..

24 25 26
Page 8
DEFENDANTS CTE

TECH CORP. 'S AND CIIINA TERMIl~tAL &

MIARTIN, BISCHOFF, IEMPLETON, LANGSLET & HOFFMAN'LLP

8B6 SW Fifth Avenuei Suite 900

ELECTRIC.CORP.'S SUPPLElME~NTAL REPLY IN'SUPPORT OF 1TS MOTION TO DISIVIISS

` Atco~eysat~aw au~,a, oR e 7204 Telephone(503)224-3113

=m:MyFax - Bowersox Law Firm, P.C. To:Mary Anne Rayburn (15032249471)

19;18 07126110GMT-04 Pg 14-18

ER-153

(~

1 2

previously mailed to the court for , filing on July 8, 2010. Exhibit 9 was previously withheld at Invacare's . insistence. Invacare has now agreed that the document is not con.fidential and may be filerl by plaintiffs.

~
3

4 5
' 6

DATED: Jtily 26, 2010. B Rs C P.C.

~.

By:

g
9

e e Tri

ow rsox, OSB No. 81442 ey Plaintiffs

10 ' ,` 13 , 14 15
,

11 12

16 17 18

, ,

19 20
21
22

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23 24 25 26
Page 2- NOTICE TO TRIAL COURT ADMINISTRATOR
,
. BOV/EASp)f LAw FLIM, P.C. 51.83 Meadows 904 Su4e 320 Wke Oswego . OA 97Q33

n.
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ER-178

3
4
5
6
1.

IN THE CIRCUIT COURT OF THE STATE OF OREGON - FOR THE COUNTY OF MULTNOMAH,

MICH EL HA-MLETT Individually and as I Ca se No. 0908-11102 Personal. Reprpsentative of the Estat6s of 7 Wiiiia -,H am i6ft 'a'n"d. Retha Ham left, m 8 - PI aii ntiff

9 I i I

V.
DAIMLER fkUCkS NOFk TH AMERICA,
LLC,-.a DelaWare LLC;With..its pnncipal

SPWALLYAPPIEARING DEFENDANT DAIMLER AG'S MOTION TO DISMISS' FOR tAck &f -'- I '. I - L PERSONA

-Piacd'.ofbUsiri&s's'i6-P6iti a ndi. qn i STERLIISI P TRUCK CORPORATI .QN, a 12 Delaw are"Corporation." vvith its ""' principal, pl~qce of busin ess.in Portland, Orej!Dn; and 13 'DAIMLE'FkAb,'af6rei g. n:c'o''r.'pora ion;, . i ti i
14

JVRISDICTION

0 r'al A rgu m e Requtst ed Fit

-Defenclants.

15
16 Time requi red1or argument -

17 1819

Telecomniunidatio'ns req Liested: biricies *o'rw6iiin M rriile's frbm courthouse:

'

10 minUtes Yes,
No IVo

25-

CoUrt reporting services requested:

UTCR 5.010 CERTIFICATE OF COMPLIANCE

20
21 22

Counsel- for the parties have conferred , by tel6phone about thib subject matter of this motioh but were unable to resolve their dispute.
1. MOTION

D 24

Pursuant to ORCP 21. A(2), Oefendant Dairriler AG riioves the co urt to dismiss . plaintiffs claims agpinst it for lack of personal juri sdictio'n. lh support of its niotioh,. Daimler this motibn.
P-igO 1 SPECIALLY APPEARINO PV DISMISS POR , LACK 00, DEFEWDAN T DAIMLER A'S MOTION TO I G AbONALjUMSDICTION' COSWAVEVEROMMMw
-

25 AG relies o-n the following points and authorities and the De-61aration of Paul Hecht filed wfth Z

I t-

832716

so

Exhibit Page J_Cff../...L j

ER-179

1 2 A. Introduction

II. POINTS AND AUTHORiTIES

3 4

This is a products liability case involving a 2007 Sterling brand commercial tractor. The tractor was manufactured and distributed by defendant Sterling Truck Corporation

'

5.(Sterling Truck), a subsidiary of defendant Daimler Trucks North America, LLC. In addition

s
~ 7

to suing those two entities, plaintiff also has named Daimler AG as a defendant in this
action. This court cannot exercise..personal jurisdiction over Daimler A.G.

s
9

Daimler AG is a-Germ an stock company governed by German law. Its operations . . _

are strictly, in Gemiany: It does no business.in Oregon, and it.does. not ifself sel(its products in Oregon. Products. manufactured by: Daimler AG that ultirriately arepurchased in

to

11 in ~ __ Oregon or-elsewhere~- the United States ane distributed and sold.by independent - . -- -,
'
12 companies..

13

Daimler. AG did.not design, manufacture, distribute, or othenivise have any

,
~

14
15 16

invoivement with the Sterling tractor at issue in this case. Although Sterling Truck is. an
indirect subsidia . y of Daimler AG, Sterling_ Tractor is an independent. Delaware corporatior% r _ , . whose contacts with Oregon(if any) legally cannot be attributed to Daimler-AG. ' exetcise.general or specific jurisdiction over DaimierAG. Even it'Daim~r AG had.the

17
18

Plaintiff cannot satisfy its burden of proving the facts necessary;to.p.ermft this court to

19

requisite r iinimum contacts with Oregon to sustain jurisdiction over it in this: case (which it

20 ~ , 21 22 23 . 24

does not), the assertion of such jurisdiction would b.e constitutionally unreasonable. Accordingly, the court should dismiss. Daimler AG from this lawsuit. B. Background facts . . 1. Plaintiff s claims in this lawsuit

Flaintiff Michael.Harnlett filed this produets liability[ action on behalf of himseif and

25 26

the Estates of WiIliain and Retha Hamlett, seeking to recover: monetary damages for injuries allegedly suffered by his'father, William Hamlett, in an acciderit .on September 6, 2006, in

Page 2-- SPECIALLY APPEARING. DEFENDANT-DAIMLER AG'S MOTION TO DISMISS FOR LACK OF PERS'ONAL J.URISDICTION e32716 Coaaanire Vetue KESrot w.
. WasWl~:e'woor

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1 2

Webster County, Missouri (Compl 116). Plaintiff asserts that William Harnlett's injuries, and uitimate death,, were caused by design defects in the Sterling vehicie (id. 21-24). Plaintiff sued Sterling Truck, which manufactured and distributed. the subject tractor, along with
Daimler Trucks North Arnerica, LLC and Daimler AG: He sen ed Daimler AG through the Hague Service. Co.nvention: 2. Facts relevant to personal jurisdiction over Daimier AG

'

3
4

~ 1

5. 6 7 8 9

Daimler AG is an Aktiengesellscfraft, or Gennan atock company, .with its "sea# or effective place of business in Stuttgart, Germany. Effective place of business is the .. . German corporate law equivalent of'the American principal piace of business. Thus, Daimler AG is governed by German law (Declaration of`Paul Hechf'[Hecht Dec] T 2).. . . ~ . -.Daimler AG does notdo business in Or.egon....lf.does.not have_any.officers, .

, ~

10 =11

'

12 . empioyees; or agents stationed to woric for it in Oregon;: and it does not maintain any offce, 13 agency or representative in Oregon. Daimler AG has not authorized arnyone to accept senrice of P . . in Ore on . nor has. Daimler AG a PP ointed an. a9ent for service ofProcess 9 . ,.. . , rocess , in Oregon (id: 4=5).. .

' '

14 15

16
, 17 18 ~ 19

Daimier AG does riot conducf advertising or soiicitation, activities in Oregon, and it

does not operate any saies or service network.in Oregon. Daimler AG does not have Oregon bank accounts. It does not own Oregon reaCestate. It does not pay Oregon taxes (id: 1 5}. , Daimler AG, which designs ;and manufactures Mercedes-Benz vehicfes, did not.

20 21
22

design, rrianufacture, or distribute the 2007 Steriing tractor at issue in this lawsuit id 2, 6).
_ `
(

That tractor was, nianufactured. in Ontario, Canada.by Sterling Tru'ck,_and`.:it was distributed by
Steriing Trucic :(rd , 5).

23
24

Sterling Truck is a subsidiary of DaimlerTrucics North America, LLC, which is in tum an

indirect subsidiary of Daimier AG (id. 5). Each company strictly observes the legal

25 requirements necessary for their separate and distinct corporate existence (id ). Daimler AG

26 has no day-to=day control .overeither one of its indinect subsidiaries (id ). Consequently, Pa9 e 3 SPECIALLY APPEARING DEFENDANT DAIMLER AG'S AAOTION TO DISMISS FOR LACK OF PERSONAL J.U..RISDI.CTION e32716 cosc~avevei~ffn K~si~nu~

Exhibft

Page

-~ '

--

- ---=-- - -- ------- _ __---- -- - --- - - -.

ER-181

--

- - - - - ----- ----- -- -- -----------

I Daimler AG not only has no significant contact with this lawsuit, it has no significant contact with
2 Oregon at all.
3

C.

4
5

Plaintiff Cannot Establish the Required Constitutional Bases for Exe'rcising Personal Jurisdiction over Daimler AG 1. Reievant legal principies

s
7 8

Plaintiff bears the, burden of alleging and proving facts sufficient to establish
jurisdiction. He may not rest on conclusory aliegations. Showalter v. Edwards & Assocs., Inc., 112 Or App 472, 476, 831 P2d 58 (1992) '(internal citations omitted); White v. Mac Air

Cor-p:, 147 Or App 714, 720, '938 P2d 241 (1997). The court should dismiss Qaim(er AG

to

without leave to amend because piaintiff cannot prove facts demonstrating.the existence:of

11 _~J.urisdiction. _

12
13 14

Dismissal-without leave to amend is proper in this case because plaintiff cannot

,

prove facts demonstrating the existence of jurisdiction. In Oregon, the relevant analysis is govemed by ORCP'4. See, e:g., State ex reL Ciricus Circus Reno, Inc: v. Pope, 317 Or -

15 . 151, 153, 854 P2d 461 (1993). Personal jurisdiction. can either be general" or specific," 16 17 18
19

but it -cannot exceed the boundaries set by the. Due Process Clause of the United States Constitution. Id. at 153-54. Thus, the federal due process analysis is .the relevant anaiysis for resolving personal jurisdiction issues, i.e., if plaintifF cannot prove that
jurisdiction is proper under the federal Due Process Clause,, then the action niust be dismissed. Sunriver Resort Ltd. P'ship v. Sun River St George Dev., 2005 WL 27302.1, at "2 (D Or Feb. 1, 2005).

20 ~ 21

22 23
24

The jurisdictionaf barcier in this case is higher than normal because Daimler AG is an alien defendant, i. e:, a Gerrnan citizen. And, if is well settled that _litigation againsf an alien
defendant creates a h'igiier juiisdictional barrier than, litigation against a citizen frorn a sister

25 26

state because important 5overeignty concerns exist. Sinatra v: National Enquirer, Inc., 854 F2d 119.1, 1199 .(9P Cir 1988) {citing FDIC v., British-American Ins. Co., 828 F2d 1439, 1444

Page 4 SPECIALLY APPEARING DEFENDANT DAIMLER AG'S MOTION TO DISIIflISS FOR L14CK OF PERSONAL JURISDICTION e32i-1s
me ae em f Flmr vmmroa.OR UM ~ u}eoao '

Exhibit Page--~~

ER-182

'

t 1 (9"' Cir 1987));. Core-Vent Corp. v. Nobe/ Indus. AB, 11 F3d 1482, 1489 -(9 ' Cir'1993).

2"Great care and reserve should be exercised when extending [U.S.] notions of personal

t
~

3 jurisdiction into the international field." Asahi Meta/ Indus. Co. v. Superior Ct , 480 US 102,
4 115 `(1987):

'
,

5
g 7

2.

not have continuous and systematic contacts with' Oregon

Daiinler AG is, not subject to'general - jurisdiction - because ~t'does

To establish general turisdiction,. plaintiff inust establish that Daimler AG has

8"'continuous and systematic contacts"' with Oregon: ~See Circus Circus, 317 Or at 154 . `9 (quoting Cu6bage v. Merchent; 744.F2d 665,667 (9 Cir 1984)). The due process.
. '.

10 . standai-d for gene~al ~urisdiction' is extremely high: ttie Supreme Court has upheld' general? jur~sdict~ori~[over_a,foreign ;corporationj only once,";and other courts regularly-have :declmed
, 12 to fnd general lurisdiction 'even where the contacts were quite extensive Amoco Egypt Oil 13 . Co: v: .Leonis NaVigation;Co., 1 F3d 8481851 n 3(91!h Cir. 1993): Stated another way,'for ~ 14: general jurisdictiori to e)(ist ; the defendant's contacts must "approximate physical presence" 15 in the, forurii state.. Schwarzenegger v Fred Nlarfin Motor Co., 374 173d 797, 801 (9,' Cir 16 2004j; see:Circus'Circus,'317 Or at.1 54-(generaL jurisdiction requires foreign, corporations'to
'

`consentQ' ao iunsd'iction or [be]'present' wifhin the state); State ex rel Hupp. Motor Car
18 19 20 21

Corp. V. Kanz/er, 129 `Or. 85; 96=97, 276 P 273 (1929) (foreign auto manufacturer who sold carsi through Oregon distributor was not subject to personal jurisdiction in this State): Plaintiff does not allege and cannot prove the existence of "continuous and systemafic contacts" that "approximate physical.presence~ by Daimlei AG in-:Oregon. As

22 plamtiff acknowledges, Dairnler AG is, a foreign corporation that is_not : registered to do 23 busjness in Oregon. Compl 5; Hecht Dec 3. Daimler AG does no business in. the State 24 of Oregon, and it does. not'maintain any office; agency; or representative there:. Hecht. Dec
1

25 3: Moreover, Dairnier A.Gdoes not conduct any sales, service, - or other business activities .
26

Page 5- SPECIAL' LY APPEARING DEFENDANT DAIMLER AG'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION =s coserrnvevaiem mmuo
...~~...

vo~e: oa srma
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Exlibit

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- -- -ER-183 -- ---

{~

1 in Oregon. It has no Oregon bank accounts, does not own Oregon real estate, and does
2 not pay Oregon taxes. Id 14.

Daimler AG is in a similar position to the defendant in Circus Circus, afthough

4 uniike Daimier AG the defendant in Circus Circus: (1).had advertised and solicited
5 6 7 8

customers in Oregon; and (2): was, a U:S: corporation and therefore did not trigger the

higher standards associated with jurisdiction over foreign.companies. 317 Or at 154.

Despite those greater contacts with Oregon, however, the Oregon Supreme Court concluded.,that the defendant in Circus Circus was not subject to general jurisdiction in this state. fd. The same'conclusion applies to Daimler AG. 3.. .. : Daimler AG is not subject to specific jurisdiction because, among othec reasons; it did not make :or sell`vehicle at issue

9 10
1_1 12

Specific lurisdiction requires~that the plaintiff's claim "arises out of defned activities
by`the defendant'in; Oregon; as setforth in subsections C through K of ORCP 4

13 14
15 16

Circus, 317 Or at 155 n:1. Jurisdiction also may be proper if it is permitted by the Due Process Clause of'the U.S. Constitution. . Id..at 156. Plaintiff does not allege that Daimler AG is subject to specific jurisdiction`under ORGP 4,.presumably because plaintiff.c,annot demonstrate that-Daimler AG took anyaction in (or otherwise directed at) Oregon,,mucli

_. . .

Circus

I I I

less any action in:Oregon. related to Its -claimS.

The, Un+ted: States Sup,r.eme Court.has established a two-prong test for determining whether constitutional rainimum.contacts exist sufficient for the exercise of specific personai

jurisdictibn. First, the defendant must have "purposefully directed his. activities at resid'ents of the forum. Bucger King CorP. v. Rudzewicz ; 471. US.462, :472 (1985). Second, the

liti9.ation must have resuited.frorri in"uries that arise out of or.relate to" the defendant's 1
activities in the forurri state.. ld: "If the plaintiff fails to' satisfy either of`th,ese prongs, 25 personaf jurisdiction is not established in the forum state. Schwarzenegger, 374 F3d at 26 802: , . .: ,

Page 6 SPECIALLY APPEARING DEFENDANT DAIMLER AG'S MOTION TO eV716 DISMISS FOR. LACK OF cosc~uvevaioe~nl(osErtus PERSONAL JURISDICTION
oam~ oa enos

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ER-184

For all of the same reasons offered above in connection with the discussion of

2
~

general jurisdiction, plaintifF cannot demonstrate that Daimleir AG has apurposefully tlirected

3[its] activities at residents of [Oregon]. Burger King, 471 US at 472. Specifcally, Daimler

4 ~ 5
6 ' 7 8 9 ~ 10 11 ~ 12 13

AG does not have a presence in Oregon; ifdoes nof do business in Oregon; and it does not direct any of its activities towards Oregon. Hecht Dec 5-8. The accidenf in this case did
not even occur in Oregon, but rather in Missouri. Compl 16. Moreover, to the extent Daimler AG manufactures other products that ultimately are sold in. Oregon, Daimler AG does not distribute or sell those products in_ Oregon. Hecht :Dec 2: Thus; this court would lack jurisdiction over Daimler AG even if DaimlerAG had made or sotd the product at issue in th.is case_ S.ee Johnson v. Peacock Lumber Co., 95"OrApp 710, 714, 770 132d 960 (1989),("The placement_of a product into the _stream of commerce, without more, is~not an, act of the defendant purposefully directed to,ward the forum State'") (quoting Asalii Metal _

7ndus. v;Supenor'Caurt,.480 US 1`U2, 112,(1987) (O'C,onnor, J:;.~concurring)):

'

14 15

Ih a product liability case like the present one, the court need not eVen consider whetlier the defendant "purposefully directed its activdies toinibrds ithe fonam. (or whether
the in'uries arose out of that conduc t) unless the defend ant at least placed the. product at ) .

16

17 18

issue into the streari~ of commerce. Johnson, 95 Or App at 714. Here, Daimler AG did not do even that it did not design or manufacture the vehicle at issue in this lawsuit, and it did
. . '.

19 20

not sellahe vehicfeAo plaintrff or to anyone else Hecht:Dec 6. To the contrary, the 2007 Sterling tractor was manufactured and distributed by,another company, Sterling Truck. Id. 5. Although'Sterling . is an indirect subsidiary of~Daimler AG, it is and at all times was an
independent U S. corporation, id., so any contacts ~t might have with Oregon cannot IegaAy be attributed to Daimler AG. "It is well settled that '[tJhe existence of a relat onship between a parent company, and its subsidiaries is not sufficient to establish personal` jurisdiction on the basis of the subsidiaries' rninimum contacts wi#h the forum.'" U.S. Vestor; LLC v. Biodata

21
22 23 24 25 26

/nfo. Tech. AG, 290 F$upp 2d 1057..(ND Ca12003):(quoting Doe.v. Unocal Corp::, 248 F3d

Page 7 SPECIALLY APPEARING DEFENDANT DAIMLER AG'S IINOTOON TO DISMISS FOR LACK OF PERSONAL JURISDICTION
vmn:m. ax mee

832718

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Ex libit__----

Paq~~~ Of.

ER-185

1 915, 925 (e Cir 2001)); see also Asahi, 480 US at 109 (jurisdiction improper untess there are
2actions by the defendant himself that create a'substantial connection' with the forum State").

'

3 Daimler AG's indirect ownership interest in Sterling Trucks thus cannot establish a basis for
4 personal jurisdiction; instead, the court must focus on Daimler AG's own specific contacts with

5 Onrgon.. 6 Daimler AG does not have the nrquisite minimum contacts with Oregon to support

'

g p J 7 either enerral or s ecfic 'urisdiction oVer DaiinierAG in this case. Accordin 91y, the. court

~
'

8
9
10

should dismiss Daimler AG from this case.

4.
. ;

The assertion of personal jurisdiction would not comport with. "fair.play and substantial justice"
, ,

I
'

1:1
12 13 14

Even assuming plaintifFcou.Id_prove that DaimterAG had the:re^quisite;;mirnmum .,:

contacts with Oregon required for either general or specific'jurisdiction (which it cannot), due process requires that "the. exercise~ of jurisdiction must be i*asonable," i.e , the exercise of jurisdiction must comport with 'fair play and substantial justice:'" .. . _ .

Circus Circus,

15
16

317 Or at 159-60: Failure to rneet this "reasonableness" requi~ement -aione makes personal
jurisdiction'improper. See, e.g., Burger King, 471 US at 47172; see -also Kotera v. Daioh

17
18

lntem. U. S.A. Corp.; 1.79 Or App 253, 266-69, 46 P3d 506 (2002) (concfUding that
exercising jurisdiction over Japanese company would be unreasonable underthe

19
20

circurnstances).
The burden of defending an action within a particular forum is generally'the primary concem in determining whether an exercise of jurisdiction is reasonable.

21

WorfckWide

22 Volkswagen Corp. v Woodson, 444 US 286,292 (1980). If the burdens of trial are too
23 great for a;plaintifF the .plaintiff can decide not to sue or, 'perhaps, to sue elsewhefe. A 24 defendant has no such luxury." lnsurance Co. of North Am: v. Cruz, 649 F2d 1266, 1272 -

25 _(9"' Cir 1981).. This factor takes on special importance where - as. here - the plairntiff. seeks 26 to" establish jurisdiction with respect to the resident.of a foreign country. See, e.g:, Asahi, Page 8- SPECIALLY APPEARING::DEFENDANT DAfAALER AG'S MOT10N TO
DISMISS fOR` LACK OF PERSONAC JURISDICTION
. ' COSeitaVE VetaFHi Km7RAUi ~nom~

:.. .

--

e32716
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EW 8W B do1.62ikor Pobm, OF YS06

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ER-186

1 2

480 11S at 115.(where foreign defendants are involved, "[the interests of other nations], as weil as the Federal interest in its foreign relations poiicies, will be. best served by a careful

'

3 4

inquiry into the reasonableness of the assertion of jurisdiction in the particufar case, and -of an, unwillingness to find the serious buniens on an alien defendant outweighed by minimal
interests on the part of the plaintiff or the forum. State); Koter.a, 179 Or App at.267-68

'

6 7 8
9 ~

(quoting same). , Plaintiff has sued the manufacturer and distributor of the vehicle in: question, Sterling Truck. Sterling Truck, not Daimler AG, has the relevant contacts with Oregon and this
lawsuit, and itther'efore is the''natural:and 10gical defendant in this-cause See Samuels4:

10 . . BMW of North Am ;, Inc.; 554 F Supp 1191, 1194. (ED Tex 1983). , As the distributor of the 1 1:..vehtcle; toOregon, Sterling Truck has purposely directed its-activtt ies towards; ttiis ~urisdiction, _ 12 and rt'does not dispute that rt is-subject to this:courE's furisdicfion.. Daimler AG has always _

13 ' 14 '`15 16 17 18

structured its activities so as to avoid being subject to sult here. Hecht Dec 1.34 This fact is significant; because the main focus of the:jurisdiction analysis is:to: provide "clear notice" and certainty to corporations.'in. the structuring of their legal affairs. World-Wide Volkswagen

Corp, 444 US at 297, see a/so BrJCgerK~ng, 471 US at 471-72 (perrrmi5sible to structure
corporate affairs to avoid the burden and expense' of a foreign lawsuit). It`is especially unieasonable to drag. a German stock company, DaimlerAG,.into an

19
20

Oregon couit:to defend a, vehicle it did`not design, inanufacture, or_distribute ; particularly ,

when the company that did make and sell that vehicle aiready is a defendant,subject to the

'
'

21 22
23
24

court's jurisdiction. Even leaving aside Daimler AG's lack of minimum contacts,. then, the unreasonableness. of plaintiffs effort to bring Dairriler AG intq this lawsuit establishes an
independent basis to dismiss Daimler AG.
,

25 26

Page 9 SPECIALLY APPEARING DEEENDANT :DAIMLER. AG'S MOTION TO D1SMlSS FOR LACtC OP PERSONAL JURISDI.CT{ON. 832716 _ coeauvev~aKmMu,
~ ftdtnd. OR MM

Exhibit
Page-iOf-I~L

~
ER-187
111: CONCLUSION

a For all of the above reasons, the court should gr - nt Daimler AG's motion to dismiss.
DATED this 19th day of October, 2009
COSORAVE VERGEER KESTER LLP

c?~.

/s/ Wendy M. Margolis

Wendy M. Margolis, OSB No. 945675 Telephone: 503.323:9000 Fax: 503:323.901:9 E-mail; margotis@cvk-law.com Of Attomeys for Specialty Appearing D.efendant Daiinier AG. Trial Attomey: David P. Morrison, OSB No 772846

Page 10 SPECIALLY APPEARING DEFENDANT DAIMLER AG'S MOTION TO DISMISS FOR'LACK.. OF PERSONAL JURISDtCTION e32116 -. .. . . coeaxnv& VEYtGM N6p7ERUi
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ER-188

CERTIFICATE OF SERVICE 2 3 1 hereby certify that I served a true and correct copy of the foregoing SPECIALLY APPEARING DEFENDANT DAIMLER AG'S MOTION TO DISAItISS FOR LACK OF PERSONAL JURISDICTION on the date indicated below by: 0 mai! wdh postage"prepaid, deposited in the. US mail at,Portland, Oregon,

1
,

4 5

6
7 8 .9 '

Q
u. 1-1 .

hand delivery.,
facsimile.transmission, overnight delive .ry,

If served by facs'imile transmission, attached to -this certficate _is the printed

'
.

10

confinnatiori of receipt qf the.document(s) generated by fhe transmitting mach ine: I furt liec
. .

. . . ~ 1: .:. cert'!fi!- ._.. said ;copy, was ' placed._in a: sealed _envelope delivered.as indicated,'above and .. that .. _.. ; 12 addressed to: said attorne y( s) at the address;(es )hsted below: : . ` .:
13

' '

14 A1 5
16

17
18

Lawrence.Bar~on Attorney at Law 151'5 'SW Fif#h Avenue, Su~te 808 . Portland, OR 9720.1 AND R. Douglas Gentile . Chnstopher J Stucky (admitted pro hac vice) 903 E. 104th,Street, Sutte 610' Kansas City, `M0.64131 Of A ttomeys for Plaintiff ' DATED: Octob.er 19, 2009

Anne Talcott Schwabe.Wiltiamson ,& Wyatt PC 1:211 SV1/ Fifth Avenue, Suite` 1900 Portland, OR.97204 Of Attorneys for Defents nda Daiinler Truc k North America, LLC and Sterling Truck Corpoiation-

20

/s/ Wendy:M.. Margolis

22 ' ~ 23 24 25 26

Wendy. M. ~Margolis

Page 1- CERTIFICATE OF SERVICE.'

cosaqnvevERGMI(Ea7Ht ur .

832716
IMI =34om. . I

aoe ew.~oR arios s` vbw PoMme:

Exhibit_

Page __l~_-~

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ER-189

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FI4ED
281AJA~y 14
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4

,yUR. 1jQH~H ~011h

EN o E , tD c~

5 6
7

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH MICHAEL HAMLETT,.individually and as Personal Representative of the Estates of Case No. 0908-11102

'

J: ~ ~ g ~~~~ ~

i
'

8
9
. 10
11

William Harrrlett and Retha'Hamlett,

Plaintiff;
v. .. . 'ORDER GRANTING SPECIALLY

'

'

. : .: . DAIMLER TRUCKS-NORTH AMERICA, LLC, a Delaware limited liability company.. with ts 12 principal place 'of :business in: Portland; Oreg~on; STERLING. TRUCK ' 13 CORPORATION, a Delaware. corporation with its pnncipal place of business in 14 .. Portland, Oregon; and, DAIMLER AG, a; foreign corporation, 15

APPEARlNG DEFENDANT DAfMLER

AG'S, MOTIiON TO DISMISS, FOR LACK OF PERSONAL JURISDICTiON
.

16
~

Defendants.
_

17

'

1$
19

On December 14, 2009:, the court. heard argument.on Specially Appearing

Defendant Daimler AG's Motion to Dismiss for Lack of Personal Jurisdiction. Plaintif appeared through his attomeys Lawrence Baron ; Christopher Stucky, and. Robert Udziela, . Vuritten'subm- i"ssions and oral argument; the court.concludes that it has neithergeneral nor specific personal jurisdiction over Daimler AG.

3~ ~

2o

21
22 23 29 25 26

and Daimler AG appeared through its aitomey Wendy M::Margolis. .Based on the parties'

Exhibit
lII

Page_12,_0fiA_

Page 1- ORDER GRANTING, SPECIALLY APPEARlNG DEFENDANT DAlMLER AG'S e65631 MOTION TO DISMISS FOR L.ACK OF PERSONAL JURISDICTION
cosoaa,+~veeo~il~u~
AUDill ,VU & !Flow ~8 Pardand.OR V=
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ER-190
1 Therefore, for the reasons stated on the record, it is

2
3
4

ORDERED that specially appearing defendant Daimler AG's motiorn is GRANTED.

DATED this day of January, 2010.

r5

Leslie. Roberts Circuit Court Judge

7
8

Submitted by:
Wendy M. Margolis ; OSB 945675 COSGRAVE VERGEER KESTER LLP Of Attorneys .for Def,endant, Daimler AG

91

10

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14

15 16
17

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18
19 20
21 22 23

24
25
26

E~?iibit_ r _
Page
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Pa'ge 2- ORDER GRANTING SPECIALLY APPEARING ; DEFENDANT DAIMLER AG'S 865631 MiOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTfON
casoanvE vettGme KEffT muv

Pirdim% OR 2= MM 2234=

. ... , .

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------

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ER-191

~
~ 2
3

CERTIFICATE PURSUANT TO UTCR 5.100(2)

1 hereby certify that service of the foregoing Order was made, on the date and

in the manner indicated below, upon opposing counsel not less than 3 days - prior to
submission tothe c-ourt, complying with the requirements. of UTCR 5.100, in

4 accofdance with the certificate of , seCVice: below:.

~ 5
6

CERTIFICATE OF SERVICE

i hereby certifiy that I served a true and correct copy of the foregoing ORDER

~ GRANTIPIG SPECIALLY APPEARING DEFENDANT DAIMLER AG'S MOTION TO

8 DISMISS FOR LACK OF PERSONAL JURISDICTION. on the date indicated below by 9

. ~ []

, - -. -. . . .-. ma~l.with,postage.prepaitl, deposited.in the US mail at,Portiand, Oregon, . hand delivery, .. ,facsrmile transrnission, : .

'

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12

E1

ovemight delivery,:

t
~ ~

13
14
15

If.served.byfacsimile.transmission; attached to this certifcate is'the prinfed confirrnation. of recei t of the document s enerated b Y the transmittin 9 machine. I further . . .. ,(-)g . P certify that said copy was placed in a sealed envelope delivered as indicated above and
. .

16
17 18 19 ~ 20 21

addressed-to said attorney(s) at the address(es) listed below:

Lawrence 13aron , Anne Talcott .

Attomey=at Law
1515 SW Fifth. Avenue, Suite 808 Portland, OR 9.7201 AND R. Douglas Gentile ChnstopherJ. Stucky (admifted pco hac vice) 903 E.-1'04th -Street ;t S0e;'610 Kansas City; NI0:64131 Of Attorneys for PlaintifF DATED: January`8, 2010

Schwabe Williamson & 1Nyatt PC

1_211 SW Fifth Avenue, Suite 1900 Portland; OR 97204 Of Attorneys for Defendants Daimler Truck North America, LLC and Sterling Truck.Corporation _

22 23 24
25 26 Page.1 - CERTIFICATE OF SEttVICE
865631 CosoMve ve~n~ae7cESrExua dos sw.eio.a.er: a" Fmo.

V1lendy M.. argolis Exiibit

page-&-0-i~

ER- 192 -

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CERTIFICATE OF SERVICE
1 2 'I herebyeertify that, on this d.ate,.1 served the foregoing DEFENDANTS CTE TECH ' CoRp .'S AND CHITSTA, TERMINAL & ELECTRIC CORP.'8. SUPPLEMENTAL REPLY IN, SUPPORT OF ITS MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION on the foliowin g atiomeys: ie' ffr6y A. - Bowersox Bowersox L. dw F-irm P.C. Kriie Woo ds I 5285 Meadows kbad, Suite 320 ' Lake Oswep, OR 97035 Richard C..PeArc-6 Attorney At-La'w' 921 S.W. Washington Stiedi, Suite 755 Portland, OR 97205 'Attomeys , fdi Plaiptiffs
1 1300 SW Fifth Avenud. Suit.e ~3 .4 00 . -Poriland, -OR'. 9 7201 Attorney fbr United. Seat~ng* , Mobility W alter-H.- S*qqk . Cbs grave Veraeer K' thter LLP es 805 SW Broadway, 8 Flobt Pottland OR 97205 Attomey fqr Invacare. C0'rporatiqn Motiori Cohcepts, Perpetual Motion ges,

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Ronald J. Ck. -far Bullivant Houser Bailey PC 888 SW Fifth.Avenu6, - Suite 300 :Pbrt1and,.0X-9,7204 fexidAht.Pass & Ryan Mclellaifi sl;~th .Freed' :&,Eberhatd -'PC . 'd 111 SW ifth ~F "'Avenud 4.3: Flo6r PortlAnd;OR 97204 Aitom'ey fot Defendaht Suinmerg Group,

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Heather C.- Beasle" y Davis RpthwellEarleet. al. 1:11 -8 W..Fifth Avenue St.fite, 2700 .Portland, OR f .' Atto meys , :116cil:16c piDeferidaht QAW . Inc.
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By causjng,co ies thdreof, addres'sed to each attom' 6 's last known address, and.'ent by the s

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CERTIFICATE OF SERVICE

Mary-*ficS.- Raybuin, OSB.#803680. Stephen P. Yoshida,. OSA #044588 Of, Attomeys for Defendants Chiha. TerminaI & Electric Corp. and CTE Te.ch Corp.
MARTIN. BISCHOFF,JEMPLETON6 LANGSLEr &,ki9FFMAN LLP. ~WAIO Zga. l~;.,,. aas Fl: 900 Telep rte 011- 97204 Pard,5 03) 224-3113

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ER-193

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IN THE CIRCUIT COURT OF TBE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH JEFFREY WII.,LEMSEN, as Personal Represeiitative ofthe:Estate of KARLENE J. WII.,LEMSEN and JA1VrES WII:,LEMSEN ; P_Taintiffs, V. IVACARECORPORATION;ma:foreigry - . corporat'ion, UNITED: SEATING & MOBILITY, --LLC, a limited hability company, WESTERNHEALTH RESOURC INC:, dba ADVENTIST ES; HEALTH`PERSONAL CARE SERVICES ; a foreign co,rporation; CARE MEDICAL EQLTIPIvlENT, INC`., an Oiegori corporation, KMC MARKETING, INC., dba MK _ BATTERY, a foreign corporation CHINA TERMINAL & ELECTRIC, INC., a foreign corporation, CTE CORPORATION, a foreign corporation, MOTION. CONCEPTS, INC:, a foreign corporation; PERPETUAL-MOTION ENTERPRISES, LTD, a 1. foreigq corporation, and.LESTER ELECTRICAL OF NEBRASKA, INC:;'a foreign corporation,
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Case No,: 0902-01653 DECLARATION OF STEPHEN P. YOSHIDA IN SUPPORT OF SLTPPLEMENTAL REPLY IN SUPPORT OF MOTION TO DISMIS'S FOR. LACK, OF PERSONALJURISDICTION `

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Deferidant.

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' 22 23 24 25 26 I. Stephen-P: Yoshida, hereby declare urider penalty of perjury; that: 1. . 1 have personal knowledge of the facts set forth herein. I subrrut'this Declaration

in support of Defendant CTE Tech Corp. and Chiria Terininal and Electric Corp.'s (a prior business name of CTE.Tech Corp.) (collectively referred to as "CTE"} Suppleinental Reply in Support of its Motion to Dismiss for Lack of Personal Jurisdiction.
MARTIN,.81SCtiOFF, :TEhAPLETON, LANGSLET 8 HOFFMAN LLP Attdmeys at,Lavw 888 SW F'dth AJenue; Sirite 900

Page 1- DECLARATION OF STEPHEN P. YOSHIDA

Telephone(503) 224-3113

Portland.OR 97204

ER-194

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I am one of the attorneys for Defendant.CTE in the above-captioned case. Attached as Exhibit 1 to CTE's Supplemental Reply is a true and correct copy of

3 the Motion to Dismiss for Lack of Personal Jurisdiction and the signed Order Granting the 4 Motion by Judge Roberts in the matter of Michael Hamlett v. Daimler Trucks North America,
5 LLC, et a1.,.1Vlultnomah County Case No, 0908-11102. . ;

I hereby declare that the above statement is true to the best of my knowledge arid belief,

7 and.that 1I understand it is made for use as evidence in court, and is subject to penalty for.perjury
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Dated: December 21, 2010.

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`Stepheii P Yoshid'a .._.. _:........ .

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Pab e 2- DECLARATION OF STEPHEN P. YOSHIDA ff

~iN, BI3CHOFF, TEMPLET,oN

LANGSLET & HOFFiNAN LLP Attomeys at Law 888 SW Ffth.Avenue, Suite 900 PorUand; OR 97204 Teleptiorie (503) 224-3113

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ER-195
CERTIFICATE OF SERVICE

I hereby certify that, on this date, I served the foregoing DECLARATION OF STEPHEN P. YOSHIDA IN -SUPPORT OF SLTPPLEMENTAL REPLY IN SUPPORT OF MOTION TO 3 DISMISS FOR LACK OF PERSONAL JCTRISDICTION on the following attorneys: Jeffrey A. Bowersox Bowersox Law Firm P.C. Kruse Woods I 5285 Meado.ws Road, Suite 320 Lake Oswego, OR 97035 Richard C. Pearce Attorney at Law 921. S.W. Washington Street, Suite 755 Portland, OR`97205 Attorneys3ibi Plainfiffs Jay:W. Beattie , Lmdsay Hart;:Neil & Weigler LLP : 1:300' SW Fiftli Avenue, Suite 3400 Portland, OR 97201 ' , Attorney for Ilnited -Seating & Mobility Heather C .`Beasley Davis Rothwell Earle et: al. 111 S.W. Fifth Avenue, Suite 2700 Portland, OR 97204 . - ,Attoineys for Defendant GAW Blectric, Inc. Walter H.Sweek Cosgrave Vergeer Kester LLP 805 SW Broadway, 80' Floor Portland; -OR 97205 Attorney for Invacare Corporation, Motioin Concepts, Perpetual Motion Enterprises, Ltd. Ronald J. Clark. B`ullivant Houser Bailey PC 888. SW Fifth Avenue,'Suite.300 Portlarid, OR 97204 Att.orneys forDefendant Pass & Seymour; :IncRyan MeLellan. Sinith Freed & Eberhard PC 111 SW Fifth Avenue, 43 rd Floor Portland; OR' -97204 A ttorney for Defendant Suininers Group, Iric:

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By causing copies thereof, addressed to each a ttomey's last known address, and sent by the following indicated metfiod.,or. methods: S. E1 q .q byU.S, mail, first=class postage prepaid, from Portlarid, Oregon. by hand delivery. by overnight courier. by electronic mail. MARTIN, BISCHOFF, TEMPLETON LANGSLET & HOFFMAN LLP
By:

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DATED: December 21, 2010.

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1VIary-Anri . Rayburri; OSB #803680 Stephen P. Yoshida, OSB #044588 Of Attomeys for Defendants- China Terminal & Electric .Corp. and CTE Tech.Corp. CERTIFICATE OF SERVICE
MARTIN,' BISCHOFF, TEMPLETON, LANGSLET 8 HOFFMAN LLP Attomeys at law 888 SW Flfth Avenue, Suite 900 PorNand; OR 97204`. Tel ep hone 503)'224 8113 Faz (50~) 2249471

Transcript of Proceedings Willemsen v. Invacare Corp.

ER-196

January 5, 2011 No. 0902-01653 18 I;

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH JEFFREY WILLEMSEN, as personal Representative of the Estate of KARLENE J. WILLEMSEN-and JAMES WILLEMSEN, Plaintiffs, vs:. INVACARE CORPORATION, a foreign corporation; UNITED SEATING & MOBILITY, LLC., a foreign limited liability company; CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; CTE TECH CORP., a foreign corporation; MOTION CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD., a foreign corporation; PASS & SEYMOUR, INC., a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, INC., f/k/as Siemens Energy , and Automation, Inc., a foreign corporation; SUMMERS GROUP, INC., dba REXEL, a foreign corporation; and GAW ELECTRIC, INC., an Oregon Corporation, Defendants. No. 0902-01653

CERTIFIED --eC;1fU4L 0R

CONTINUATION OF MOTION TO DISMISS TRANSCRIPT OF PROCEEDINGS Volume II of II - Pages 18 to 24 January 5, 2011 Bridge City Legal 503.542.0.902

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January 5; 2011 No. 0902-01653

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BE IT REMEMBERED THAT the above-entitled matter came on regularly for hearing before the HONORABLE RICHARD C. BALDWIN, Judge of the Circuit Court of the County of Multnomah, State of Oregon, at 10 a.m., on Tuesday, the 5th day of January, 2011.

APPEARANCES:

BOWERSOX LAW F'IRM,.P.C. Jeffrey A. Bowersox jeffreyblfpc.com 111 S.W. Columbia Street
Su'i te 1000

Portland, OR 97201 503-452-5858 Counsel for Plaintiff

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2l 22 MARTIN, BISCHOFF, TEMPLETON, LANGSLET & HOFFMAN, LLP Mary-Anne S. Rayburn mrayburn@martinbischoff.com 900 Pioneer Tower 888 SW Fifth Avenue Portland, OR 97204 503-224-3113 Counsel for Defendant-s China Terminal & Electric Corp. and CTE Tech Corp.

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(Tuesday, January 5, 2011, 10:03 a.m.)

-000THE COURT: Thank you. Please be seated.

Okay. This is a continuation of defendant

CTE's motion to dismiss for lack of personal jurisdiction

in Willemsen versus Invacare Corporation and other defendants. Case Number's 0902-01653. I would ask the

attorneys to indicate their names for the record. MS. RAYBURN: Mary-Anne Rayburn, Your Honor,
on behalf of the CTE defendants. That would be China

Terminal & ELectric Corp. and CTE Tech Corp. MR. BOWERSOX: Good morning, Your Honor, Jeff Bowersox on behalf of plaintiffs.
THE COURT: Okay. And I did a review of all the materials from the last hearing, argument that we had, also supplemental memos submitted by both sides. I think it -included a declaration of Michael Romano. So I believe I have reviewed everything that'_s been submitted. And I'11 hear any further argument from either side as far as anything they'd like to emphasize. I

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see it's a defense motion. MS. RAYBURN: Thank you, Your Honor. I'11
make my comments brief because I believe we did thoroughly address the -issues in all of our pleadings but also addressed further issues in our supplemental briefing, as

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No. 0902-01653

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well. Your Honor, I think the point is that in order to establish personal jurisdiction over my client there has to be a purposeful availment of activity in the state of Oregon. And there is no evidence that my client did anything in the state of Oregon. At most it shows that we had a business relationship with Invacare, which is a defendant in this case, and sold product to Invacare, but it was Invacare's distribution, Invacare's decision making alone to determine how it was going to distribute its own products, how it was going to incorporate -- you know, which of our products it was going to i_ncorporate into its product which it sold under its name. There is no evidence and there's certainly nothing in Mr. Romano's declaration showing that CTE had knowledge of what Invacare's distribution system would be, where it would sell its products and certainly nothing in Oregon. So I think that at most it shows that we had a business relationship with Invacare but, as we cited in ou,r materials, that simply putting products in the stream of commerce is not sufficient to establish personal jurisdiction over it. And we've also cited for the same proposition, t , E ~

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January 5, 2011 No. 0902-01653 22

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post the Servo case, is the Johnson case, and also we attached the order in the Hamlett versus Daimler case, and we had previously submitted a Multnomah County court order on the Heseman,n case following those same precepts. Your Honor, as I mentioned, Invacare is in the case.. They are the logical and reasonable defendant in this case. They manufactured the wheelchair, incorporated our product in its wheelchair, and it is a proper defendant in this case. Thank you. THE COURT: Thank you. MR. BOWERSOX: Your Honor, I believe that it's clear from Mr. Romano's declaration and this provides adequate foundation for the Court to see that CTE has in fact availed itself purposely of the Invacare distribution system. It's unlikely that one would suggest that CTE presumed that it would -- or, excuse me -- Yes,'that CTE presumed that its battery chargers were simply going to be manufactured for Invacare and sit in Invacare's warehouse. In fact, the supply contract that was previously submitted to the Court under seal specifies that the CTE battery chargers have to -- will be used for medical.devices distributed throughout the United States and have specifically a requirement that they meet state -all state and federal requirements for medical devices. ; Bridge City Legal 503.542.0902 ~ ~,.

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I believe that given the amount and effort made by CTE to access the United States markets; including Oregon, that CTE can certainly be considered to have

purposely availed itself of the Oregon market. THE COURT: A11 right, thank you, A11 right, based on the entire record,
including Mr. Romano's declaration, and given the State's interest in protecting its citizens from personal injury,

the Court does deny defendant CTE's motion. MS. RAYBURN: Okay. MR. BOWERSOX: Thank you, Your Honor. I'11 prepare the order. THE COURT: A11 right. Thank you. MS. RAYBURN: A11 right.
.Thank you, Your Honor.

(HEARING ADJOURNED AT 10:15 A.M.)

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ER 202
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January 5, 2011 No. 0902-01653 24 1

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STATE OF OREGON

) ) ss.

COUNTY OF MULTNOMAH )

I, Jeris Clark, a Certified Shorthand Reporter for the State of Oregon, do certify that at the time and

place set forth in the caption hereof I reported in

stenotype all testimony adduced and other oral proceedings had in the foregoing matter; that thereafter my notes were

reduced to typewriting under my direction; and the . foregoing transcript, Pages 18 to 24, both inclusive, constitutes a full, true, and. correct record of such
testimony adduced and oral proceedings had and of the whole

thereof. Dated this 5th day of December, 2011.

66kk
Jeri sl"ark, CSR, RMR, CRR

Oregon CSR #90-0009 Washington CCR #29906

-IFIED CERT
INAL
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IN THE CIlZCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH -

JEFFREY WILLEMSEN, as Personal Representative of the Estate of KARLENE J. WILLEMSEN and JAMES WILLEMSEN, Plaintiffs,

Case No. 0902-01653 ORDER o

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V. INVACARE CORPORATION, a foreign corporation; UNiTED SEATING & MOBILITY, LLC., a foreign limited liability company; CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; CTE TECH CORP., a foreign corporation; MOTION CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS & SEYMOUR, INC., a foreign corporation; SIEMENS CORPORATION, a foreign corporation; SIEMENS INDUSTRY, INC, f/k/as Siemens Energy and Automation, Inc., a foreign corporation;- SUMMERS GROUP, INC., dba REXEL, a foreign corporation; and GAW ELECTRIC, INC. an Oregon Corporation, Defendants. This matter came before the court on the motion filed by CTE Tech Corp. and China Terminal & Electric Corp.'s Motion to Dismiss for Lack of Personal Jurisdiction. The court has read and considered the submissions of t.he parties including the declarations submitted by the parties and has heard argument of counsel.
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, Boweiwx L:w Fum, p.a
(503) 452-5858

5283 Meadows Rued, SuBe 320 Lnke Oswego, OR 97035

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NOW THEREFORE IT IS HEREBY ORDERED that the CTE defendants' motion to dismiss for lack of personal jurisdiction is denied.

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Dated: January ':~)l 2011.

6! RtGHARD C. BALDWIN
Honorable Richard C. Baldwin Circuit Court Judge

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Submitted by: 10 BowE 11 12 13 14 15 Approved as to form:

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MARTIN BISCHOFF TEMPLETON LANGSLBT & HOFFMAN LLP

w FutM X.

Dated: January

2011.

x, OSB #81442 Jeffrey Trial Attomey for Plaintiffs

Dated: January ~~, 2011.

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Mary- Arfine Rayburn, O #803680 Of A omeys for CTE Tech Corp: and China Terminal & Electric Corp.
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Bowersox Law F'vm..P.e.
3285 Mradows Road. Suue 320 Leke Osweeo, OR 91035

(503) 452-5858

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CERTIFICATE OF MAILING/SERVICE I certify that I filed the original and one copy of the EXCERPT OF RECORD, VOL. 1(ER 132 - 204) by hand delivering to: State Court Administrator Supreme Court Building_ 1163 State Street Salem, OR 97301-2563 on February 1~, 2011. I further certify that I served one copy of said Excerpt of Record, Vol. 2 (ER 132 - 204) by mailing, via first class mail, postage prepaid, to: Jeffrey A. Bowersox The Bowersox Law Firm PC 5385 Meadows Road, Ste. 320 Lake Oswego, OR 97035 Attorney for Plaintiffs-Adverse Parties Richard C. Pearce Attorney at Law Suite 755 921 S. W. Washington St. Portland, OR 97205 Co-Counsel for Plaintiffs-Adverse Parties Walter H. Sweek Cosgrave Vergeer Kester LLP 805 S.W. Broadway, 8th Floor Portland, OR 97205 Attorney for Invacare Corporation, Motion Concepts, Inc. and Perpetual Motion Enterprises Jay W. Beattie Lindsay Hart Neil & Weigler LLP 1300 S.W. Fifth Ave., Ste. 3400 Portland, OR 97201 Attorney for United Seating & Mobility, LLC Ronald J. Clark Bullivant Houser Bailey PC 888 S.W. Fifth Ave., Ste. 300 Portland, OR 97204 Attorney for Pass & Seymour, Inc. Heather C. Beasley Davis Rothwell Earle & Xochihua PC 111 S.W. Fifth Ave., Ste. 2700 Portland, OR 97204 Attorney for GAW Electric, Inc. Joshua.P. Stump Harrang Long Gary Rudnick, PC 1041 S.W. Fifth Ave., 16th Floor Portland, OR 97204 Attorney for Siemens Industry, Inc.

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Christine F. Miller Admitted Pro Hac Vice Julia T. Farrell Admitted Pro Hac Vice J. Claire Todorovich Admitted Pro Hac Vice 190 Carondelet Plaza, Ste. 600 St. Louis, MO 63105

Ryan McLellan Smith Freed & Eberhard, PC 111 S.W. Fifth Ave., 43rd Floor Portland, OR 97204 Attorney for Summers Group, Inc. The Honorable Richard C. Baldwin Multnomah County Circuit Court Multnomah County Courthouse 1021 S.W. Fourth Ave. Portland, OR 97204

Judge
DATED this / S- day of February, 2011. MARTIN BISCHOFF TEMPLETON LANGSLET & HOFFMAN LLP

By

Mary-Ann S. Rayburn, OSB No. 803680 Jonathan M. Hoffinan, OSB No. 754180 Joan L. Volpert, OSB No. 803942 Attorneys for Defendants-Relators

1~
APPRLtA1'E COUR? AbMiM18TRAT IN THE SUPREME COURT OF THE STATE OF OREGON JEFFREY WILLEMSEN, as Personal Representative of the Estate of KARLENE J. WILLEMSEN and JAMES WILLEMSEN, Plaintiffs - Adverse Parties,
V.

F I L E D oR
FEg 15 2011
SUPREME COURT
UR'f OF APPEAI.S

` Supreme Cou rt"No.

SC S

Multnomah County Circuit Court

No. 0902-01653

INVACARE CORPORATION, a foreign corporation; UNITED SEATING & MOBILITY, LLC, a foreign limited liability company; CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; CTE- TECH CORP., a foreign corporation; MOTION CONCEPTS, INC., a foreign corporation; PERPETUAL MOTION ENTERPRISES, LTD, a foreign corporation; PASS & SEYMOUR, INC., a foreign corporation; SIEMENS CORPORATION, a foreigri corporation; SIEMENS INDUSTRY, INC., flk/a Siemens Energy and Automation, Inc., a foreign corporation; SUIvIlVLERS GROUP, INC., dba REXEL, a foreign corporation; and GAW ELECTRIC, INC., an 'Oregon corporation, Defendants, and CHINA TERMINAL & ELECTRIC CORP., a foreign corporation; and CTE TECH CORP., a foreign corporation, Defendants-Relators. I (Counsel on Next Page)

SEALED EXCERPT OF RECORD

February 2011

Mary,-Anne Rayburn, OSB No. 803680 Jonathan M. Hoffinan, OSB No. 754180 Joan L. Volpert, OSB No. 803942 Martin Bischoff Templeton Langslet & Hoffinan LLP 888 S.W. Fifth Ave., Ste. 900 Portland, OR 97204 Telephone : 5 03 -224-3113 E-Mail: mrEbum@martinbischoff.com urn@martinbischoff.com ihoffman@martinbischoff.com ivolpert@martinbischoff.com Attorneys for Defendants-Relators

Jeffrey A. Bowersox, OSB No. 814422 The Bowersox Law Firm PC 5385 Meadows Road, Ste. '320 Lake Oswego, OR 97035 Telephone: 503-452-5858 E-Mail: jeffreygblfpc.com Attorney for Plaintiffs-Adverse Parties Richard C. Pearce, OSB No. 762842 Attorney at Law 921 S.W. Washington St., Ste. 755 Portland, OR 97205 Telephone: 503-223-2966 E-Mail: rcpaevanet.com Co-Counsel for Plaint ffs-Adverse Parties Walter H. Sweek, OSB No. 620920 Cosgrave Vergeer Kester LLP 805 S.W. Broadway, 8th'Floor Portland, OR 97205 Telephone: 5 03-323 -9000 E-Mail: wsweek@cvk-law._c_om Attorney for Invacare Corporation, Motion Concepts, Inc. and Perpetual Motion Enterprises

(Continued on next, page)

Jay W. Beattie, OSB No. 871631 Lindsay Hart Neil & Weigler LLP 1300 S.W. Fifth Ave., Ste. 3400 Portland, OR 97201 Telephone: 503-226-7677 E-Mail: jbeattieklindsayhart.com Attorney for United Seating & Mobility, LLC Ronald J. Clark, OSB No. 880328 Bullivant Houser Bailey PC 888 S.W. Fifth Ave., Ste. 300 Portland, OR 97204 Telephone: 503-499-4413 E-Mail: ron.clarka,bullivant.com Attorney for Pass & Seymour, Inc. Heather C. Beasley, OSB No. 965443 Davis Rothwell Earle & Xochihua PC 111 S.W. Fifth Ave., Ste. 2700 Portland, OR 97204 Telephone : . 503 -222-4422 E-Mail: hbeasley@davisrothwell.com Attorney for GAW Electric, Inc. Joshua P. Stump, OSB No. 974075
Harrang Long Gary Rudnick, PC

1001 S.W. Fifth Ave., 16th'Floor Portland, OR 97204 Telephone: 503-242-0000 E-Mail: joshua.stump(,harran .com Attorney for Siemens Industry, Inc.

(Continued

on next page)

Christine F. Miller, Admitted Pro Hac Vice Julia T. Farrell, Admitted Pro Hac Vice J. Claire Todorovich, Admitted Pro Hac Vice 190 Carondelet Plaza, Ste. 600 St. Louis, MO 63105 Telephone: E-Mail:. Attorney for Siemens Industry Inc.

Index to the Sealed Excerpt of the Clerk's Record

(ER1-131)

Document
Declaration of Michael Romano . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ER Page

CERTIFICATE OF MAILING/SERVICE I'certify that I filed the original and one copy of the SEALED EXCERPT OF RECORD by hand delivering to: State Court Administrator Supreme Court Building 1163 State Street Salem, OR 97301-2563 on February 1~ , 2011. I further certify that I served one copy of said Sealed Excerpt of Record by mailing, via first class mail, postage prepaid, to: Jeffrey A. Bowersox The Bowersox Law Firm PC 5385 Meadows Road, Ste. 320 Lake Oswego, OR 97035 Attorney for Plaintiffs-Adverse Parties Richard C. Pearce Attorney at Law Suite 755 921 S. W. Washington St. Portland, OR 97205 Co-Counsel for Plaintiffs-Adverse Parties Walter H. Sweek Cosgrave Vergeer Kester LLP 805 S.W. Broadway, 8th Floor Portland, OR 97205 Attorney for Invacare Corporation, Motion Concepts, Inc. and Perpetual Motion Enterprises Jay W. Beattie Lindsay Hart Neil & Weigler LLP 1300 S.W. Fifth Ave., Ste. 3400 Portland, OR 97201 Attorney for United Seating & Mobility, LLC Ronald J. Clark Bullivant Houser Bailey PC 888 S.W. Fifth Ave., Ste. 300 Portland, OR 97204 Attorney for Pass & Seymour, Inc. Heather C. Beasley Davis Rothwell Earle & Xochihua PC 111 S.W. Fifth Ave., Ste: 2700 Portland, OR 97204 Attorney for GAW Electric, Inc. Joshua P. Stump Harrang Long Gary Rudnick, PC 1001 S.W. Fifth Ave., 16th Floot Portland, OR 97204 Attorney for Siemens Industry, Inc. ~

Christine F. Miller Admitted Pro Hac Vice Julia T. Farrell Admitted Pro Hac Vice J. Claire Todorovich Admitted Pro Hac Vice 190 Carondelet Plaza, Ste. 600 St. Louis, MO 63105

Ryan McLellan Smith Freed & Eberhard, PC 111 S.W. Fifth Ave., 43rd Floor Portland, OR 97204 Attorney for Summers Group, Inc. The Honorable Richard C. Baldwin Multnomah County Circuit Court Multnomah County Courthouse 1021 S.W. Fourth Ave. Portland, OR 97204 Judge

DATED this /5' day of February, 2011. MARTIN BISCHOFF TEMPLETON LANGSLET & HOFFMAN LLP

By`-=J ~

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Mary-Ann S. Rayburn, OSB o. 803680 Jonathan M. Hoffman, OSB No. 754180 Joan L. Volpert, OSB No. 803942
Attorneys for Defendants-Relators

1VIARTIN BISCHOFF
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Martin, Bischoff, Templeton, Langslet & Hoffman LLP

JONATHAN M. HOFFMAN '

ATTORNEYS AT LAW

jfioffmana,,martinbischoff.com

888 SW 5' h Avenue, Suite 900

February 15, 2011

Portland, Oregon 97204-2023 .503-224-3113 503-224-9471 Fax ALASKA OFFICE 425 G Street, Suite 910 Anchorage, Alaska 99501 907-276-1277

HAND DELIVERED

State Court Administrator Supreme Court Building 1163 State Street Salem, OR 97341-2563 Re: Jeffrey Willemsen, et al v. Invacare Corporatdon, et al. Our File No. 8 101 -1

Dear Administrator: Enclosed for filing is a Petition for Alternative Writ of Mandamus, along with a Memorandum in Support, Excerpts of Record, Vols. 1 and 2, and Sealed Excerpts of Record. We also enclose our check in the sum of $39 to cover the required filing fee. Please complete and return the attached confirmation card for our records. Thank you for your assistance. Very truly yours,

'-----, Jonathan M. Hoffman

JMH:ms Enclosure cc: All Counsel of Record Hon. Richard C. Baldwin

1VIARTIN BISCHOFF
Martin, Bischoff, Templeton, Langslet & Hoffman LLP 1cs~

O ~I
JONATHAN M. HOFFMAN ATTORNEYS AT LAW
888 SW 5"' Avenue, Suite 900

ihoffmanR imartinbischofEcom

Portland, Oregon 97204-2023

February 15 , 2011
HAND DELIVERED

503-224-3113
503-224-9471 Fax
ALASKAOFFICE

425 G Street, Suite 910 Anchorage, Alaska 99501

907-276-1277

State Court Administrator Supreme Court Building 1163 State Street Salem, OR 97301-2563 Re: Jeffrey Willemsen, et al v. Invacare Corporation, et al. Our File No. 8 101 -1

Dear Administrator: Earlier today, a Petition for Alternative Writ of Mandamus, along with a Memorandum in Support, Excerpts of Record, Vols. 1 and 2, and Sealed Excerpts of Record were filed. However, I neglected to enclose the required eight copies of the Petition and Memorandum. The original and one copy were filed. Enclosed are the additional seven copies. Thank you for your assistance. Very t yours,

Marian L. Sherburne Legal Assistant Enclosure

r