pre-trial hearing where the burden is then raised to a preponderance of the evidence standard, such as on a motion for summary judgment, or at trial where the higher burden also attaches, but no other preliminary motions on the papers can re-visit the jurisdiction issue. Marine Midland Bank, supra.
We now turn to the more difficult question of whether plaintiff has set forth a prima facie showing of in personam jurisdiction. Plaintiff's and defendants' submitted affidavits are not minorily inconsistent, rather there are significant discrepancies in what transpired at the NESA convention. Accordingly we take plaintiff's assertions in the pleadings and affidavits as the controlling facts.
To establish a prima facie case of specific in personam jurisdiction, LaRose is required to prove that Reece has "certain minimum contacts with [New Jersey] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' [citation omitted]." International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945). While it is difficult to provide a single definition of "minimum contacts," clearly the International Shoe requirements can be further articulated as those contacts with the forum State that indicate to a defendant that it "should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980).
We have recently examined this issue, see Security Savings Bank, SLA v. Green Tree Acceptance, Inc., 703 F. Supp. 350, 356-57 (D.N.J. 1989) and concluded that "it is the purposeful action of the defendant, rather than the unilateral actions of third parties claiming some relation to the defendant that creates the contacts with the forum State that we are searching for. Hanson v. Denckla, 357 U.S. 235, 253 [2 L. Ed. 2d 1283, 78 S. Ct. 1228] (1958); see also Asahi Metal Industry Co. v. Superior Court of California, Solano County, 480 U.S. 102, 109 [94 L. Ed. 2d 92, 107 S. Ct. 1026] (1987); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 [85 L. Ed. 2d 528, 105 S. Ct. 2174] (1985); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 [79 L. Ed. 2d 790, 104 S. Ct. 1473] (1984)." Security Sav. Bank, supra, at 356.
As previously noted, plaintiff relies on an injection of goods into the stream of commerce argument because admittedly defendant has none of the traditional minimum contacts such as place of business, ownership of property, solicitation or transaction of business, advertising, or franchises within the borders of the State of New Jersey. This stream of commerce argument, though, can be used in two different contexts. Generally, the stream of commerce basis for jurisdiction is asserted against manufacturers who place a component part or product into a distributive chain that ultimately reaches the consumer after passing through many other hands. See, e.g., Gray v. American Radiator & Standard Sanitary Corp., 22 Ill. 2d 432, 176 N.E.2d 761 (1961). Although the Court in World-Wide Volkswagen, supra, 444 U.S. at 298 held that "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" (emphasis supplied), most recently, a plurality of the Supreme Court has cast aspersions on this theory as a basis for jurisdiction, requiring something more than mere injection of goods into the stream of commerce. In Asahi, supra, 480 U.S. at 112, four Justices stated 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." We do not need to reach and resolve this apparent conflict, however, because the case before us falls under the second usage of the stream of commerce basis for jurisdiction, that is, where the consumer introduces the product into the forum State after purchase.
It is clear that when the consumer carries the product from the jurisdiction of the point of sale into the forum State, even though the seller knows that the consumer is purchasing the product for primary use in the forum State, this alone is insufficient to establish the necessary minimum contacts to support our exercise of jurisdiction over the seller, because the mere "unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State." Hanson v. Denckla, supra, 357 U.S. at 253; World-Wide Volkswagen, supra, 444 U.S. at 298; see also Growden v. Ed Bowlin and Assoc., Inc., 733 F.2d 1149, 1151 (5th Cir. 1984); Dommel's Hotel, Inc. v. East West Helicopter, Inc., 580 F. Supp. 15, 18-19 (E.D. Pa. 1984).
Taking the facts averred by plaintiff as true and viewing them in the light most favorable to him, we still are led to the inescapable conclusion that in personam jurisdiction is lacking over Reece, even if Reece had actual knowledge of Riley's intent to use the Sponco aerial ladder truck solely in New Jersey, because there has been no showing that Reece "purposefully avail[ed] itself of the privilege" Hanson v. Denckla, supra, 357 U.S. at 253, of conducting business in New Jersey. Therefore, Reece should not be held to the concomitant burden of litigation in New Jersey. We are loathe, however, to dismiss plaintiff's cause of action when Congress has provided a procedural vehicle for us to divert actions brought in an improper venue to the proper district court, 28 U.S.C. § 1406(a),
when it would be in the interest of justice to do so.
The Third Circuit has made it clear that we have the power to transfer a case to a district in which the case could have originally been brought even though we lack in personam jurisdiction over the defendants. Gehling v. St. George's School of Medicine, Ltd., 773 F.2d 539, 544 (3d Cir. 1985). The Court in Gehling however, did not indicate where the authority for this power is derived from. On the other hand, the Second Circuit has concisely and informatively examined the bases for this authority in Corke v. Sameiet M.S. Song of Norway, 572 F.2d 77 (2d Cir. 1978). In Corke the Court addressed the apparent anomaly in the drafting of 28 U.S.C. §§ 1404 and 1406 which when read literally leads to the result that transfer is permitted when both venue and jurisdiction are lacking in the district court, but not permitted when, as in this case, venue is proper
but in personam jurisdiction is lacking. See also Goldlawr, Inc. v. Heiman, 369 U.S. 463, 468, 8 L. Ed. 2d 39, 82 S. Ct. 913 (1962) (Harlan, J. dissenting). The Second Circuit resolved this incongruity of results by reading § 1404 and § 1406 in pari materia and then added a reasonable interpretation of the purpose of the two provisions to cure the Congressional drafting defect by allowing transfer when in the interest of justice. Corke, supra, 572 F.2d at 80. We believe that the Third Circuit approach in Gehling implicitly followed the Second Circuit's rationale in Corke, and therefore simply use 28 U.S.C. § 1406 as the procedural vehicle by which to exercise the power the Third Circuit has already informed us that we possess.
Since plaintiff could potentially face a statute of limitations bar to suit in a proper venue if we dismiss, we find it to be in the interests of justice to transfer the portion of this action relating to Reece to the United States District Court for the Northern District of Texas. See, e.g., Johnson v. Helicopter & Airplane Services Corp., 389 F. Supp. 509, 523 (D.Md. 1974).
An appropriate Order follows.
ORDER - May 3, 1989, Filed
This matter having come before the Court on a motion by defendant, Reece Supply Co. of Dallas, Inc. ("Reece") to dismiss for lack of in personam jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2); and
The Court having considered the briefs and affidavits submitted by the parties and having determined that in personam jurisdiction is lacking, however, that it is within the interests of justice pursuant to 28 U.S.C. § 1406(a) to sever the action against Reece and transfer that portion of the action to the United States District Court for the Northern District of Texas where in personam jurisdiction is proper; and
For good cause shown;
It is on this 3rd day of May, 1989 ORDERED that said motion be and the same is hereby DENIED and the action as to Reece is severed and transferred to the United States District Court for the Northern District of Texas.