The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION
Plaintiff Mary Louise Masterson ("Masterson") was riding a
boogie board off the shore of Cape May, New Jersey when she fell
forward and hit her head on the ocean floor, sustaining serious
injuries. Contending that the boogie board was "hazardous, unfit
for its intended use, negligently manufactured, unreasonably
dangerous, and defective," Masterson and her husband filed a
diversity suit in this Court against those who "did design,
evaluate, manufacture, distribute or sell" the board. This matter
comes before the Court upon motions by defendants Madame Wu Ai
Ying ("Madame Wu") and Zhejiang International Trade and
Exhibition Corp. ("Zhejiang") to dismiss the claims against them for lack of personal jurisdiction, failure to state a claim
upon which relief can be granted, and insufficient service of
process. For the reasons expressed in this opinion, the motions
to dismiss will be granted for lack of personal jurisdiction.
Zhejiang and Madame Wu, both citizens of the People's Republic
of China, first argue that the claims against them should be
dismissed for lack of personal jurisdiction. "[O]nce the
defendant raises the question of personal jurisdiction, the
plaintiff bears the burden to prove, by a preponderance of the
evidence, facts sufficient to establish personal jurisdiction."
Carteret Sav. Bank, F.A. v. Shushan, 954 F.2d 141, 146 (3d Cir.
1992). The plaintiff cannot rely on the pleadings or "mere
allegations" to satisfy its burden, but rather must provide
"sworn affidavits or other competent evidence." Stranahan Gear
Co. v. NL Indus., 800 F.2d 53, 58 (1986) (quoting Time Share
Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 67 n. 9 (3d
"District courts have personal jurisdiction over nonresident
defendants to the extent authorized under the law of the forum
state in which the district court sits." Sunbelt Corp. v. Noble,
Denton & Assocs., Inc., 5 F.3d 28, 31 (3d Cir. 1993) (citing
Fed.R.Civ.P. 4(e)). Because "New Jersey's long-arm statute
provides for personal jurisdiction as far as is permitted by the
Fourteenth Amendment to the United States Constitution[,] . . . the question of whether this Court has jurisdiction over
the defendant[s] is determined by federal constitutional law."
See Decker v. Circus Circus Hotel, 49 F. Supp. 2d 743, 745-46
(D.N.J. 1999) (citations omitted). Thus, this Court may only
exercise personal jurisdiction over Madame Wu and Zhejiang if (1)
they have certain "minimum contacts" with New Jersey such that
they could "reasonably anticipate being haled into court there,"
see World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980), and (2) "the assertion of personal jurisdiction would
comport with `fair play and substantial justice,'" see Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985).
Zhejiang, a trading company, exports "rainbow" boogie boards
from China. (See Bush Dep. 54:14-17, Dec. 28, 2004.) Madame Wu
is an employee of Zhejiang. (See id. 55:19-21.) Plaintiffs
argue that Zhejiang and Madame Wu have "minimum contacts" with
New Jersey because those defendants "intentionally delivered
their product into the New Jersey stream of commerce with the
expectation that it would be purchased by consumers in New
Jersey." (Pls.' Opp. at 6.)
In Asahi Metal Industry Co. v. Superior Court of California,
480 U.S. 102 (1987), the Supreme Court discussed the "stream of
commerce" theory of minimum contacts. Although there was no
majority opinion in Asahi as to the scope of that theory both
Justice O'Connor and Justice Brennan wrote for four Justice pluralities "[i]t is clear" from Asahi that minimum contacts
requires "some `purposeful availment' by the defendant of the
forum state." See Renner v. Lanard Toys Ltd., 33 F.3d 277,
282 (3d Cir. 1994). Under either plurality, "the mere knowledge
or awareness that one's products will end up in the forum state"
is not enough to establish minimum contacts sufficient for
personal jurisdiction. Id.*fn1 However, because both
pluralities require "purposeful availment," knowledge or
awareness that one's products will end up in the forum state is a
necessary, but not sufficient, element of minimum contacts.
As factual support for their argument that Madame Wu and
Zhejiang have minimum contacts with New Jersey under the "stream
of commerce" theory, Plaintiffs cite the deposition testimony of
Lewis Bush, owner of defendant Sunspecs:
Q. Do you have any knowledge as to how these rainbow
boards came in the possession of Mr. Hoy's stores
known as B.J. Stores Inc. trading as Hoys 5&10?
A. Yes, sir.
Q. Why don't you share with us what knowledge you
A. An employee of Mr. Hoy  John, I'm not sure [of] his last name, who's a buyer,
ordered a container of body boards. We facilitated
this container being delivered from China directly to
Mr. Hoy's warehouse.
. . .
Q. Why don't you share for us . . . what involvement
Sunspecs, Inc. had in seeing to it that these rainbow
boards were delivered to B.J. Stores, Inc., trading
A. After receipt of the order from John, we would
calculate the cubic dimensions to make sure his order
would fit in an ocean container. We would forward
this order to Mrs. Wu, advise her as to a shipping
port and a shipping steam line.
Upon its arrival at typically for East coast people
in the port of Baltimore, arrange for customs
clearance and then instructions to a trucking haulage
firm for delivery to their warehouse which is outside
of Stone Harbor, like around Swayne.
(Bush Dep. 47:18-48:6, 55:11-56:3.) This testimony proves that
Zhejiang and Madame Wu knowingly sold and shipped boogie boards
to Sunspecs, a Maryland citizen,*fn2
in Baltimore. However,
the testimony which is ambiguous does not establish by a
preponderance of the evidence that Zhejiang and Madame Wu knew
that the boards would end up in New Jersey. The testimony
establishes that an order for rainbow boards was "forwarded" by
Sunspecs to Madame Wu and Zhejiang, but does not establish that
such order specified that the boards were for a New Jersey retailer. Likewise, the testimony establishes that someone
provided "instructions to a trucking haulage firm for delivery"
to a warehouse in New Jersey, but not that that "someone" was
Madame Wu or Zhejiang. Moreover, the testimony establishes that
B.J. Stores paid Sunspecs, not Zhejiang, for the boards. (Bush
Because there is insufficient evidence that Zhejiang and Madame
Wu were aware that the boards were being marketed in New Jersey,
Plaintiffs have not established "minimum contacts" under either
of the Asahi pluralities. Therefore, the motions by Madame Wu
and Zhejiang to dismiss the claims against them will be granted
for lack of personal jurisdiction, and this Court need not reach
those defendants' arguments regarding failure to state a claim
and insufficient service of process.
The accompanying Order shall ...