CRONE, Judge.
John V. Sebring was injured while using a dust collector at his workplace in Fort Wayne, Indiana. A component of the dust collector was manufactured by Newton Conveyors, Inc. ("NCI"), a Texas corporation. Sebring sued NCI and several other defendants in Indiana. NCI filed a motion to dismiss for lack of personal jurisdiction, which the trial court granted.
Sebring appeals the dismissal. NCI's role in the manufacturing process took place entirely within Texas, and the manufacturer of the final product unilaterally decided to ship the product to Indiana. Under these circumstances, NCI's contact with Indiana is too attenuated to support jurisdiction. Therefore, we affirm.
On March 22, 2012, in Allen Superior Court, Sebring filed a complaint, which alleged that several of his fingers were amputated due to the malfunction of a modular baghouse dust collector unit that he was using at his job at OmniSource. OmniSource is located in Fort Wayne, Indiana. The dust collector was manufactured by Donaldson Company, Inc. ("Donaldson"), which is incorporated under the laws of Delaware and has a plant in Nicholasville, Kentucky. Donaldson purchased a component part, a screw conveyor, from NCI, which is incorporated under the laws of Texas and has its sole place of business in Cleburne, Texas. Donaldson and NCI were among the defendants named in Sebring's complaint.
On June 12, 2012, NCI filed a motion to dismiss for lack of personal jurisdiction. NCI submitted a memorandum in support of its motion, along with an affidavit from NCI's president and documentation of the sale of the screw conveyor. The affidavit states that NCI does not have any employees or facilities in Indiana. Between March 1991 and October 1993, NCI "had a national advertising program via fax, portions of which may have been directed to Indiana," but since then, NCI has not done any advertising in Indiana. Appellant's App. at 72. NCI does not have a telephone number or listing in Indiana. Between June 15, 2001, and January 31, 2003, NCI had an independent sales representative in Ohio whose territory included northern Indiana; however, NCI has no record of any sales being made in Indiana during this time. Since January 31, 2003, NCI has not had a sales representative or a distribution network in Indiana. NCI does not hold any Indiana business licenses, nor does it have any "ongoing business relationships with any Indiana residents." Id. at 73.
The affidavit gives the following account of the transaction between NCI and Donaldson:
Id. at 74-75.
On October 8, 2012, the trial court granted NCI's motion to dismiss. Sebring appeals from this order.
Personal jurisdiction is a question of law. LinkAmerica Corp. v. Albert, 857 N.E.2d 961, 965 (Ind.2006). Therefore, our review is de novo, and we do not defer to the trial court's legal conclusion as to whether personal jurisdiction exists. Id. However, to the extent that the issue of personal jurisdiction turns on disputed facts, the trial court's findings of fact are reviewed for clear error. Id.
Indiana Trial Rule 4.4(A) serves as Indiana's long-arm jurisdiction provision. Id. This provision extends to the limits of the United States Constitution; therefore, analysis of personal jurisdiction is reduced "to the issue of whether the exercise of
Id.
Sebring concedes that NCI is not subject to general jurisdiction in Indiana; however, Sebring argues that there is specific jurisdiction pursuant to North Texas Steel Company, Inc. v. R.R. Donnelley & Sons Co., 679 N.E.2d 513 (Ind.Ct.App. 1997) trans. denied, cert. denied (1998). In that case, R.R. Donnelley ("RRD") entered into a contract with Associated Material Handling Industries, an Illinois corporation, for a material handling system including storage racks, sophisticated forklifts, conveyors, and other related equipment for RRD's facility in Warsaw, Indiana. Associated Material Handling subcontracted the storage rack design and manufacture to Frazier Industrial Company, a New Jersey corporation, which contracted with NTS, a Texas corporation, to fabricate the rack system according to Frazier's design. After completing the rack system, NTS shipped it to RRD's Warsaw facility at Frazier's expense. A few months after the racks were installed, they collapsed and damaged the products stored on the racks.
RRD filed suit against Associated Material Handling, Frazier, and NTS. NTS filed a motion to dismiss for lack of personal
Id. at 519.
NCI argues that North Texas Steel is distinguishable and that the rationale of that case has been eroded by more recent cases from the Indiana Supreme Court and the Supreme Court of the United States. First, NCI argues that, unlike the manufacturer in North Texas Steel, NCI was not responsible for shipping the product to Indiana. The purchase order indicated that the shipment would be "F.O.B. Cleburne, TX." Appellant's App. at 80. NCI asserts, and Sebring does not dispute, that the contract between NCI and Donaldson would most likely be governed by the law of Texas or Kentucky, both of which have adopted the Uniform Commercial Code ("UCC"). Pursuant to UCC Section 2-319, "F.O.B. the place of shipment" means that the seller must place the goods in the possession of the carrier at that place. See Tex. Bus. & Com.Code Ann. § 2.319(a)(1); Ky.Rev.Stat. Ann. § 355.2-319(1)(a). Thus, NCI argues that "Donaldson took possession of the goods in Texas upon NCI's tender of delivery to the carrier, and it was Donaldson that transported the goods into Indiana, using its chosen carrier." Appellee's Br. at 11. NCI further argues that, although NCI was aware that Donaldson planned to ship the screw conveyor to Indiana, once NCI tendered the product to the carrier, Donaldson could have redirected the shipment anywhere it wanted.
Based on the affidavit of NCI's president, it appears that the decision to ship the screw conveyor to Indiana was made unilaterally by Donaldson. NCI's ordinary practice was to ship goods to Donaldson's plant in Kentucky. The screw conveyor was shipped to Indiana only because Donaldson wanted to expedite the delivery to its customer, OmniSource. In sum, it appears that NCI played no role in the decision to ship the screw conveyor to Indiana and its involvement in the transaction was complete when it tendered the screw conveyor to the carrier in Texas. Although Sebring characterizes NCI as the shipper of the screw conveyor, it does not appear to dispute any of the factual statements in the affidavit nor NCI's interpretation of the term "F.O.B. the place of shipment."
Relying primarily on LinkAmerica and J. McIntyre Machinery, Ltd. v. Nicastro, ___ U.S. ___, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011), NCI also argues that the reasoning of North Texas Steel has been undermined since that case was decided in 1997. In LinkAmerica, an Indiana resident, William Cox, entered into an agreement with Hi-Cube Express in which Cox purchased a semi-tractor from Hi-Cube
Id. In the instant case, Sebring did not have to overcome a presumption against jurisdiction, and we conclude that LinkAmerica is not sufficiently analogous to provide guidance.
In J. McIntyre, Robert Nicastro, who worked in New Jersey, injured his hand while using a metal-shearing machine manufactured by a British company, J. McIntyre. Nicastro filed a products liability suit against J. McIntyre in New Jersey. J. McIntyre argued that it was not subject to personal jurisdiction in New Jersey. The Supreme Court of New Jersey found that personal jurisdiction existed, relying primarily on the following three facts:
J. McIntyre, 131 S.Ct. at 2791 (Breyer, J., concurring) (quotation omitted). The Supreme Court of New Jersey held that its courts "can exercise jurisdiction over a foreign manufacturer of a product so long as the manufacturer knows or reasonably should know that its products are distributed through a nationwide distribution system that might lead to those products being sold in any of the fifty states." Id. at 2785 (quotation omitted). A plurality consisting of Justice Kennedy, Chief Justice Roberts, Justice Scalia, and Justice Thomas rejected that holding and held that New Jersey did not have personal jurisdiction over J. McIntyre. Justice Breyer, joined by Justice Alito, concurred in the judgment, but disagreed with the plurality's analysis.
When a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five Justices, "the holding of the court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). NCI asserts that Justice Breyer's opinion is the narrowest ground for the decision, and Sebring likewise focuses his analysis on Justice Breyer's opinion.
Justice Breyer felt that the plurality opinion introduced a new, strict rule that
Id. at 2792.
However, Justice Breyer did agree with the plurality that the approach taken by the New Jersey Supreme Court was inappropriate:
Id. at 2793 (Breyer, J., concurring).
Sebring argues that "[a]ll that can be said about the J. McIntyre Machinery, LTD decision is that Nicastro did not meet his burden of proof in establishing specific jurisdiction."
Affirmed.
BAKER, J., and MATHIAS, J., concur.
In Anthem Insurance Companies, Inc. v. Tenet Healthcare Corp., 730 N.E.2d 1227 (Ind. 2000), our supreme court took a more nuanced approach to the burden of proof. At that time, Indiana Trial Rule 4.4 listed specific bases for exercising personal jurisdiction over a non-resident. Id. at 1232. Thus, courts applied a two-step process: "First, the court must determine if the defendant's contacts with the forum state fall under the long-arm statute. Second, if they do, the court must then determine whether the defendant's contacts satisfy federal due process analysis." Id. When discussing application of the Indiana Trial Rules, Anthem stated that when the defendant raises the issue of personal jurisdiction, the plaintiff "must present evidence to show that there is personal jurisdiction over the defendant," but the burden of proving the lack of personal jurisdiction by a preponderance of the evidence remains on the defendant. Id. at 1231. When discussing the constitutional prong of the analysis, Anthem stated that the plaintiff must establish that the defendant has sufficient minimum contacts with the state, and then the defendant bears the burden of proving that asserting jurisdiction is unfair and unreasonable. Id. at 1237 (citing Burger King, 471 U.S. at 477, 105 S.Ct. 2174).
In 2003, Indiana Trial Rule 4.4(A) was amended to extend to the limits of the United States Constitution, rather than a finite list of circumstances. LinkAmerica, 857 N.E.2d at 967. Thus, LinkAmerica concluded that the 2003 amendment "was intended to, and does, reduce analysis of personal jurisdiction to the issue of whether the exercise of personal jurisdiction is consistent with the Federal Due Process Clause." Id. Therefore, LinkAmerica proceeded directly to analysis of federal due process and did not mention the rule from the Weenig line of cases that the defendant bears the burden of proving the lack of jurisdiction.
Although some Indiana cases continue to state that the party challenging jurisdiction bears the burden of proof, see, e.g., Foley v. Schwartz, 943 N.E.2d 371, 378-79 (Ind.Ct. App.2011) trans. denied, those cases appear to overlook the fact that Anthem applied the same standard as federal cases when analyzing the constitutional issue — the only prong of the analysis that is still pertinent. However, we acknowledge that Indiana Trial Rule 8(C) still purports to place the burden on the defendant.
Neither party has discussed the applicable burden of proof in this case. However, we believe that the undisputed evidence in this case demonstrates that we do not have jurisdiction regardless of which party bore the burden of proof.
