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BRYAN v. ASSOCIATED CONTAINER TRANSP.

November 4, 1993

ROBERT BRYAN and ROSEMARY BRYAN, Plaintiffs,
v.
ASSOCIATED CONTAINER TRANSPORTATION (A.C.T.) and/or BLUE STAR PACE, LTD., WEDDEL CROWN, LTD., and/or JOHN DOE(S) 1 TO 5, a fictitious name currently used to designate unknown parties, J/S/A/, Defendants



The opinion of the court was delivered by: JEROME B. SIMANDLE

 SIMANDLE, District Judge:

 This action was brought by plaintiffs to recover for injuries sustained as a result of an accident which occurred while plaintiff Robert Bryan was unloading a container packed with boxes of frozen beef shipped by defendant A.C.T./Blue Star Pace, Ltd. The initial complaint was filed against only defendants A.C.T./Blue Star and John Does 1-5 in the Superior Court of New Jersey. The case was subsequently removed to federal court, and leave was granted by the Honorable Joel B. Rosen, U.S. Magistrate Judge, on March 5, 1993 to allow plaintiffs to amend their complaint to add an additional defendant, Weddel Crown., Ltd. (now known as Weddel New Zealand, Ltd.). Weddel moves pursuant to Fed.R.Civ.P. 12(b) to dismiss the claims against it on the grounds of lack of personal and subject matter jurisdiction, and on the additional ground that the action against it is barred by the applicable statute of limitations.

 Discussion

 A. Personal Jurisdiction

 Plaintiff Robert Bryan alleges that he was an employee of Holt Cargo Systems, Inc., in Gloucester, New Jersey, on August 21, 1990, when he took delivery of a 40-foot ocean container from A.C.T./Pace Line's terminal and transported same across the street to a refrigerated warehouse for unpacking. As he opened the door of the container, he claims that 20 to 30 cartons of frozen beef fell out of the container onto his body, striking him and causing injuries. His complaint alleges that these injuries were caused by the negligent, careless or improper stacking of the boxes by defendants in the container. He alleges essentially that defendant Weddel loaded the ocean container with its beef products in New Zealand and delivered the sealed container to defendant A.C.T. for shipping to A.C.T.'s Port Philadelphia terminal in Gloucester, New Jersey, and that Weddel's allegedly negligent stacking of the container in New Zealand caused his injuries when he opened the container at the end of its voyage in New Jersey.

 Defendant Weddel is a New Zealand company engaged in the businesses of slaughtering and processing livestock and the sale of meat and meat by-products. Follett-Clarke Aff. P 2. Weddel was apparently brought into this lawsuit as a result of discovery engaged in by plaintiffs and defendant A.C.T./Blue Star which revealed that Weddel's name appeared on the container involved in plaintiff's accident and on the shipping documents for the container's contents. It is Weddel's contention that its contacts with the state of New Jersey are insufficient to support this court's exercise of personal jurisdiction over it.

 A federal district court may assert personal jurisdiction over a nonresident defendant to the extent permitted by the law of the forum in which the court is located. Fed.R.Civ.P. 4(e). New Jersey's long-arm statute, N.J.Ct.R. 4:4-4(c), provides for personal jurisdiction over nonresidents to the outermost limits provided by the United States Constitution. DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 284 (3d Cir.), cert. denied, 454 U.S. 1085, 70 L. Ed. 2d 620, 102 S. Ct. 642 (1981); Giangola v. Walt Disney World Co., 753 F. Supp. 148, 154 (D.N.J. 1990); Charles Gendler & Co. v. Telecom Equip. Corp., 102 N.J. 460, 469, 508 A.2d 1127 (1986). Thus, this court's inquiry is limited to whether personal jurisdiction over defendant comports with the due process clause of the Fourteenth Amendment. DeJames, 654 F.2d at 284; Gitomer v. Rosefielde, 726 F. Supp. 109, 110 (D.N.J. 1989).

 Absent proof of personal service in New Jersey, the basic criterion for evaluating whether the exercise of jurisdiction comports with due process was set forth by the Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945), wherein the Supreme Court recognized the following:

 
In order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with [the forum] such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."

 Id. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 61 S. Ct. 339 (1940)). In order for an individual's contacts with the forum state to constitute the requisite "minimum contacts," the connection with the forum state must be sufficient so that the individual "should reasonably anticipate being haled into court there." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980)). Implicit in the requirement of minimum contacts is the necessity that there be some act or acts by virtue of which the defendant has purposely availed himself of the benefits and protections of the laws of the forum state. Burger King, 471 U.S. at 474-76; Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958).

 The Supreme Court has established a two-part analysis for determining whether a forum state can assert personal jurisdiction over a nonresident defendant in accordance with due process. See Burger King, 471 U.S. at 476-77; see also Mesalic v. Fiberfloat Corp., 897 F.2d 696, 701 (3d Cir. 1990) (applying two-part test for assertion of personal jurisdiction over nonresident defendant). First, a court must determine whether "minimum contacts" exist between the nonresident defendant and the forum state. Id. Second, a court must consider these minimum contacts in light of "other factors" to determine whether the assertion of personal jurisdiction would comport with notions of fair play and substantial justice inherent in the Due Process Clause. Id. Such "other factors" include "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." 471 U.S. at 477 (quoting World-Wide Volkswagen, 444 U.S. at 292).

 As a preliminary proposition, jurisdiction is not proper if the connection between the defendant and the State of New Jersey is found to be the "result of 'random,' 'fortuitous,' or 'attenuated' contacts." Id. at 475 (citations omitted). Therefore, plaintiffs, as the party with the burden of proving the existence of personal jurisdiction, must demonstrate more than "random," "fortuitous," or "attenuated" contacts with the State of New Jersey by defendant Weddel.

 The Third Circuit has distinguished between "personal jurisdiction in cases where the defendant's forum-related activities do not give rise to the claim, and personal jurisdiction in cases where the claim arises out of a specific forum-related act or series of acts." Paolino v. Channel Home Centers, 668 F.2d 721, 724 (3d Cir. 1981). When the claim at issue is not premised on the defendant's activities in the forum state, the plaintiff must show that contacts between the defendant and the forum are substantial, continuous and systematic ("general jurisdiction"). Reliance Steel Products Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 588 (3d Cir. 1982). When the cause of action arises out of the defendant's activities within the forum ("specific jurisdiction"), the court must determine "whether the relationship of the transaction at issue to the forum justifies the forum state's assertion of jurisdiction over the defendant." Electro-Catheter Corp. v. Surgical Specialties Instrument Co., Inc., 587 F. Supp. 1446, 1449 (D.N.J. 1984) (citing Paolino, 668 F.2d at 724; Reliance Steel, 675 F.2d at 588).

 The burden of establishing "general jurisdiction" is more difficult "for the facts required to assert general jurisdiction must be extensive and persuasive." Reliance Steel, 675 F.2d at 589; see also Compagnie Des Bauxites De Guinee v. L'Union, 723 F.2d 357, 362 (3d Cir. 1983) (recognizing that where the cause of action arises from an event unrelated to the forum "the defendant's contacts with the forum must be qualitatively and quantitatively greater than where the cause of action is forum-related"). Here, however, I consider only whether specific jurisdiction is adequately supported and need not consider whether Weddel's contacts with New Jersey satisfy the more stringent standards applicable where general jurisdiction is asserted, as it is the very conduct of Weddel at issue in this case which is alleged to implicate the purposeful availment by Weddel of the forum state, New Jersey.

 The affidavit is somewhat vague as to whether Weddel is itself engaged in the shipping of some of its products, albeit after "sale" of those products, to the United States. Although the affidavit states that "in the typical arrangement" Weddel sells the livestock to purchasers in New Zealand or Fiji, it goes on to say that "in some instances the meat products are shipped to ports in other countries," presumably after sale in light of the additional statement that "any action and conduct related to the sale of meat is consummated and completed by Weddel in New Zealand." Id. P 5.

 This ambiguity is significant because an opposing affidavit supplied by defendant A.C.T./Blue Star suggests that Weddel itself -- and not subsequent purchasers of Weddel's products -- routinely selects the A.C.T./Blue Star line to ship its products to the United States. See Schultz Aff. P 5. Assuming for the moment that Weddel was aware that, as A.C.T./Blue Star states, all A.C.T./Blue Star shipments destined for "Philadelphia" during the period 1985-1991 were in fact discharged in Gloucester, New Jersey, id., the issue of whether Weddel itself shipped its products via A.C.T./Blue Star to New Jersey, even assuming the shipping was accomplished after sale of the products, is of consequence to the present motion. *fn1"

 This issue is significant because recent case law suggests that merely placing one's products into a "stream of commerce" which carries those products to the forum state, even if combined with actual knowledge that the stream of commerce will carry those products to the particular foreign location, may not be sufficient to satisfy the demands of the due process clause. See Asahi Metal Ind. Co., Ltd. v. Superior Court of California, 480 U.S. 102, 94 L. Ed. 2d 92, 107 S. Ct. 1026 (1987) (plurality opinion); Williamson v. Consolidated Rail Corp., 712 F. Supp. 48 (M.D. Pa. 1989). On the other hand, the court is aware of no reason to hold that the relevant standard -- minimum contacts based upon purposeful availment of the forum -- cannot be satisfied under circumstances where a company, having officially "sold" its products elsewhere, goes on to engage in a course of conduct in which it arranges for the shipping of the products it "sold" to the forum state and the suit's subject matter arises from the unloading of the products from the shipment in the forum state. The stream of commerce theory recently rejected by a plurality of the Court in Asahi involved a situation where, after sale of a component part by the defendant to another company abroad, no further action was taken vis-a-vis the product by the seller; although the seller might have known some of its products would end up in California by virtue of the actions of the purchaser or others further down the chain of sales, no action was taken by the seller which could be said to have been "purposefully directed toward the forum state." Asahi, 480 U.S. at 112. In contrast, the facts before the court on Weddel's motion might be understood to indicate some purposeful activity by Weddel toward New Jersey, namely the shipping via A.C.T./Blue Star of its products to New Jersey after sale. Any "stream of commerce" argument Weddel relies upon is accordingly inapposite.

 In light of this discussion, I must consider the issue of whether Weddel knew it was shipping its products to New Jersey, as opposed to Pennsylvania or any other state in the United States. It is Weddel's contention that it knew some of its products were being shipped after sale to Pennsylvania, but not to New Jersey. Follett-Clarke Aff. P 6. It is critical to Weddel's success on this motion that its purposeful activities were in fact limited to the state of Pennsylvania. If Weddel in fact selected A.C.T./Blue Star to ship its products to the United States, and if in fact Weddel believed those ships only landed in Pennsylvania, it could not be said to have undertaken purposeful activities with respect to New Jersey. *fn2" On the other hand, if Weddel did engage in a course of conduct of shipping its products via A.C.T./Blue Star to the United States, and if it also knew that A.C.T./Blue Star shipments landed in New Jersey, such conduct would appropriately be characterized as a purposeful availment of the forum state, New Jersey.

 Conflicting evidence has been presented to the court on this point. The affidavit submitted by A.C.T./Blue Star contains the following statement:

 
During the period 1985 through October 1, 1991, all ACT/Pace Line shipments which were destined for "Philadelphia" were in fact discharged in Gloucester, New Jersey. This fact is well known to Weddel Crown (i.e., the shipper of the cargo) since it is the ...

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