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Eric Kraut, As Co-Administrator v. Raisbeck Engineering

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 17, 2011

ERIC KRAUT, AS CO-ADMINISTRATOR ON BEHALF OF THE ESTATE OF JON M. KRAUT, D.D.S., DECEASED; GARY KRAUT, AS CO-ADMINISTRATOR ON BEHALF OF THE ESTATE OF JON M. KRAUT, D.D.S. DECEASED; GLENN WOOD, AS CO-ADMINISTRATOR ON BEHALF OF THE ESTATE OF JON M. KRAUT, D.D.S., DECEASED; ROBERT SMITH, AS CO-ADMINISTRATOR ON BEHALF OF THE ESTATE OF ROBIN KRAUT, DECEASED; GAYLE DITZLER, AS CO-ADMINISTRATOR ON BEHALF OF THE ESTATE OF ROBIN KRAUT, DECEASED; GARY CANCELLIERE, AS ADMINISTRATOR OF THE ESTATE OF AVERY KRAUT, DECEASED, JESSICA KRAUT, DECEASED, AND APRIL KRAUT, DECEASED; GARY CANCELLIERE, AS ADMINISTRATOR AD PROSEQUENDUM AND ON BEHALF OF HIS MINOR SON, JUSTIN CANCELLIERE, PLAINTIFFS-APPELLANTS,
v.
RAISBECK ENGINEERING, INC.; PRATT & WHITNEY CANADA, INC.; UNITED TECHNOLOGIES CORPORATION; HONEYWELL INTERNATIONAL, INC.; HARTZELL PROPELLERS, INC.; SEGRAVE AVIATION, INC.; DALLAS AIRMOTIVE, INC.; PIEDMONT/HAWTHORNE AVIATION, INC.; PIEDMONT HAWTHORNE AVIATION, L.L.C.; PIEDMONT HAWTHORNE AVIATION, INC.; THE RECURRENT TRAINING CENTER, INC., DEFENDANTS, AND AIR WILMINGTON, INC., DEFENDANT-RESPONDENT.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-222-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 25, 2010

Before Judges Lisa, Reisner and Sabatino.

Five members of a New Jersey family were killed when the plane in which they were flying, piloted by one of them, crashed in South Carolina. This action was brought by the representatives of the deceased family members, and one other family member who was not in the plane, against numerous defendants, alleging liability on various grounds for the crash. One of those defendants is Air Wilmington, Inc. (Air Wilmington), a North Carolina corporation which owns and operates a facility that services airplanes at an airport in Wilmington, North Carolina, and which provided maintenance and repair service on the plane that crashed.*fn1

Air Wilmington moved to dismiss the complaint against it, asserting a lack of in personam jurisdiction. After extensive jurisdictional discovery, Judge Andrew J. Smithson granted Air Wilmington's motion. By leave granted, plaintiffs appeal the dismissal order, which was entered on March 25, 2010. Plaintiffs argue that the trial court erred in finding insufficient minimum contacts by Air Wilmington with New Jersey to provide a basis for in personam jurisdiction. We disagree with plaintiffs and affirm.

I.

The crash occurred on February 3, 2006. At that time, Dr. Jon Kraut, his wife, and their four children lived in Mercer County, New Jersey. Dr. Kraut maintained an office in which he conducted his orthodontic practice in Newtown, Pennsylvania. The Krauts owned a vacation home in South Carolina. A corporate entity, of which Dr. Kraut was the sole shareholder, purchased the plane involved in this crash in 2003. That corporation had previously owned a different plane, which was sold at the time of the new purchase. Dr. Kraut hangared the plane involved in this crash at an airport in Mercer County.

When the Krauts flew to and from their vacation home, they regularly stopped at Air Wilmington's facility for fuel. Apparently, Air Wilmington's fuel prices were low. Further, its location was convenient for this purpose in relation to the Krauts' vacation home.

From time to time, Dr. Kraut had service and repair work done on both of his planes at Air Wilmington's facility. When he purchased the plane that was later involved in the crash, he asked Air Wilmington to perform a cursory inspection of it. Air Wilmington did not perform the full pre-purchase four-phase inspection that was available for such purposes. Instead, the plane was brought by a broker, at Dr. Kraut's request, to Air Wilmington for only three to four hours, in order to perform what Air Wilmington's representative described as a "cursory or light inspection of the plane."

Several deficiencies were noted. In his deposition testimony, Air Wilmington's president and CEO stated that Dr. Kraut did not rely on Air Wilmington to perform a complete and thorough inspection, because, "[i]f he had wanted a complete pre-purchase [inspection], he would have directed [the service manager] to do a 1 through 4 inspection and go through it with a fine tooth comb." Nevertheless, Air Wilmington's president acknowledged that "Doctor Kraut relied on Air Wilmington to look at the aircraft and give him guidance as to what may be going on with this airplane."

In the ensuing two-and-one-half years from Dr. Kraut's purchase of the plane until the crash, Air Wilmington serviced it on four occasions. The most recent was about four months prior to the crash, and the service included work on the left engine. Plaintiffs allege that the left engine malfunctioned when the Krauts were making their final approach to the airport in South Carolina, and that was the cause, or a contributing cause, of the crash.

Air Wilmington is a North Carolina corporation. Its only facility is at the airport in Wilmington, North Carolina. It owns no property and maintains no offices or physical presence in New Jersey. It has no employees in New Jersey. It is not licensed to conduct business in New Jersey and has no agent for the service of process in New Jersey. It has never performed maintenance, service or repairs on any aircraft in New Jersey, nor provided inspections of aircraft in New Jersey. It has no New Jersey telephone number, facsimile number, or mailing address. Air Wilmington maintains no bank accounts in New Jersey and has never paid any New Jersey taxes. With the limited exceptions that we will discuss, Air Wilmington has never directed any advertising to New Jersey.

From time to time, Air Wilmington provided pilot services for aircraft owners, by which a pilot employed by Air Wilmington would fly a plane to a location designated by the aircraft owner in return for a fee. Over a span of five years, Air Wilmington pilots provided such a service by which planes were flown into New Jersey on about sixty occasions. These planes were owned by third-parties, not by Air Wilmington, and not by Dr. Kraut or his corporation. On each occasion, the pilot delivered the plane to New Jersey in exchange for a fee paid by the owner to Air Wilmington. On some occasions, the pilot purchased fuel in New Jersey as part of the service. Air Wilmington also paid the applicable landing fees in New Jersey. However, these were "pass-through" costs, which were completely reimbursed to Air Wilmington by the aircraft owner, resulting in no profit to Air Wilmington. These expenses were incurred for the convenience of the owner as part of the pilot service Air Wilmington provided.

Air Wilmington sometimes sent letters to the owners of aircraft who had used its facility or had landed at the adjacent airport, encouraging them to use its facility when they were in the area. The letters suggested that repeat users could obtain special discounts on fuel prices. The letters also advised that Air Wilmington provided a full service facility for maintenance and repairs. These were very short, one-page form letters.

The discovery revealed that Air Wilmington sent out 785 such letters. The recipients were identified in discovery. Only twenty of the letters were sent to New Jersey residents.

There is no evidence in the record of any advertising by Air Wilmington in New Jersey. Plaintiffs contend, however, that Air Wilmington reached out to and solicited the New Jersey market by advertising conducted through an arrangement with another entity, UVAir, a discount aviation fuel supplier. To support the claim, plaintiffs produced a posting on UVAir's website. In their brief, plaintiffs contend that the posting promoted Air Wilmington's services as a "fueling stop and customs clearance for potential customers traveling between Teterboro [A]irport in New Jersey and the Bahamas, with a diagram depicting planes traveling between Teterboro and [Air Wilmington's] facilities in North Carolina."

The ad provides a list of services provided by Air Wilmington and points out that its facility is a convenient stop-over for travelers to the Bahamas. The ad also refers to Odyssey Aviation Bahamas, and describes its services.

In her deposition testimony, Air Wilmington's customer service manager described the circumstances leading to the posting of that ad on UVAir's website. She explained that a UVAir representative had contacted her and wanted to promote Air Wilmington "in conjunction with Odyssey Aviation." This was because of the convenient stop-over location of Air Wilmington to the Bahamas, and it was for the purpose of selling aviation fuel provided by UVAir. The UVAir representative never told Air Wilmington's customer service manager that any other locations, such as Teterboro Airport, would be depicted on the ad, and Air Wilmington was never provided with an advance copy of the ad. Indeed, no one from Air Wilmington saw the ad until early 2009, in the course of this litigation, and it is unrefuted that the ad was not posted on UVAir's website until November or December 2008, nearly three years after the February 3, 2006 crash.

In an effort to provide evidence that this ad, depicting the Teterboro Airport, somehow related back to a time prior to the crash, plaintiffs produced in discovery a printout of Air Wilmington's website posted at an unspecified time in 2006, which it contends "displayed an advertisement for UVAir." However, the one-page printout merely depicts pictures of the seven credit cards that Air Wilmington accepts for purchases of fuel. Four of these cards are commonly used by the general public, i.e., Discover, Visa, MasterCard, and American Express. The other three are apparently specific to aviation customers, i.e., AVCARD (which has a picture of an airplane in flight on it), MS (MULTISERVICE), and UVAir.

We fail to see how this has anything to do with the later ad posted by UVAir and depicting the Teterboro Airport. This 2006 ad makes no reference to Teterboro Airport or anything else having to do with New Jersey. Nor is it "an advertisement for UVAir" as characterized by plaintiffs. It is simply an ad saying that Air Wilmington sells aviation fuel and accepts various credit cards for payment.

Most importantly regarding the letters to customers and the UVAir ad, plaintiffs do not allege that Dr. Kraut was enticed to use Wilmington Air's facility through any solicitations or advertising directed to New Jersey. Indeed, the UVAir ad that included a reference to Teterboro Airport did not appear until long after his death, no documentation in the record indicates that any of the form letters thanking customers for past business and encouraging them to return were sent to him, and there is no suggestion that he ever saw Air Wilmington's credit card ad or used a UVAir credit card at Air Wilmington.

In their arguments, the parties make much of whether Air Wilmington's representatives were aware that Dr. Kraut lived in New Jersey and hangared his plane in New Jersey. Air Wilmington denies such knowledge. It points out that in its records, all entries, contemporaneously made with information provided by Dr. Kraut, reflect that he gave only a Pennsylvania address, telephone number, and facsimile number. He represented that the Pennsylvania address was his residence, and Air Wilmington's records so reflected. This was apparently his Newtown, Pennsylvania professional office. Air Wilmington produced its records, corroborating the information provided by Dr. Kraut.

Air Wilmington representatives contend that whenever they wanted to reach Dr. Kraut they always contacted him at the Pennsylvania telephone number, usually going through the receptionist, or at the Pennsylvania address. Other than returning occasional calls initiated by Dr. Kraut from elsewhere, including from New Jersey, Air Wilmington insists that it never "attempted to contact Dr. Kraut in New Jersey."

Further, the record owner of the plane that crashed (as well as Dr. Kraut's previous plane), was a Delaware corporation, formed in 1994, known as "Weekend Air, Inc.," of which Dr. Kraut was the sole shareholder. The corporation had a registered agent in Delaware, but none in New Jersey.

Plaintiffs point to two items of documentary evidence in support of their contention that Air Wilmington representatives knew Dr. Kraut lived in New Jersey. First, the Federal Aviation Administration (FAA) registration, which was, as required by FAA rules, posted on the aircraft, contained a New Jersey address. That address corresponded with the Krauts' residence in Mercer County.*fn2 Air Wilmington responds that the designated owner of the aircraft on the FAA registration was "Weekend Air Charter Services, Inc.," which it contends must be a fictitious entity, because there is no record of the existence of such an entity. Plaintiffs have provided no explanation for the discrepancy between that corporate name and "Weekend Air, Inc." In any event, the document was posted on the plane, and Air Wilmington's representatives were required to check it each time they performed service on the plane.

Air Wilmington argues that its only obligation was to check the registration to make sure it matched the identifying numbers of the aircraft, but it would have no reason to investigate the stock ownership of any designated corporate owner of the aircraft. Indeed, it points out that in the course of the litigation, its efforts to identify the corporation listed on the FAA registration form have come up empty, and plaintiffs have not provided any evidence that the named corporation exists. Therefore, even if Air Wilmington had conducted any kind of inquiry (which it insists it was not required to do and which it is not customary to do), it would not have shed any light on the identity of the shareholders or the location of their residences.

The second piece of documentary evidence is a check dated January 15, 2006, about three weeks before the crash, drawn on the account of "Weekend Air, Inc.," payable to Air Wilmington, in the amount of $1,657.32, for services rendered. Air Wilmington dismisses this as insignificant for the same reasons as the FAA registration.

Plaintiffs also contend that Air Wilmington sometimes arranged car rental services for Dr. Kraut, using his New Jersey driver's license as a reference. Plaintiffs have produced no documentary evidence to support this contention.

Finally, plaintiffs point to a letter from Air Wilmington's service manager, dated September 27, 2005, quoting a price of approximately $17,000 for the purchase and installation of de-icing boots on the plane. The letter began by saying, "This is the estimate I promised you . . . ." Thus, it appears there had been some prior discussion about the possible replacement of the de-icing boots, as opposed to a solicitation initiated by Air Wilmington regarding a subject never previously discussed with Dr. Kraut. The letter does not reflect a mailing address. Presumably, it was faxed to Dr. Kraut. Dr. Kraut chose not to have the de-icing boots replaced.

The trial court did not make a conclusive finding as to whether or not Air Wilmington actually knew that Dr. Kraut lived in New Jersey. It observed that "the evidence presented to the court establishes that [Air Wilmington] had the opportunity to discover that [Dr. Kraut] maintained a New Jersey address." Plaintiffs did not request that the trial court conduct an evidentiary hearing to assess the credibility of Air Wilmington's representatives who insisted in their deposition testimony and certifications that they did not know that Dr. Kraut was a New Jersey resident and that he consistently told them he lived in Pennsylvania, as reflected in their contemporaneous business records. Although plaintiffs now suggest that perhaps a remand for such a hearing might be appropriate, we do not agree.

First, the record contains more than ample evidence to support Air Wilmington's assertion that it did not have actual knowledge that Dr. Kraut lived in New Jersey. The so-called documentary evidence that is in the record upon which plaintiffs rely does not necessarily lead to a contrary conclusion. Nor does the interrogatory admission by Air Wilmington that it occasionally called Dr. Kraut at a New Jersey phone number, but only as a return call in response to a contact initiated by Dr. Kraut. Further, we do not view the possible knowledge that the Krauts lived in New Jersey as dispositive of the jurisdictional issue.

Based upon this record, the trial court found that there were insufficient minimum contacts between Air Wilmington and New Jersey to satisfy the criteria for either specific or general in personam jurisdiction.

II.

Our review of a trial court ruling on jurisdictional issues is de novo because the question of in personam jurisdiction is a question of law. Mastondrea v. Occidental Hotels Mgmt. S.A., 391 N.J. Super. 261, 268 (App. Div. 2007) (citing Vetrotex CertainTeed Corp. v. Consol. Fiber Glass Prods. Co., 75 F.3d 147, 150 (3d Cir. 1996)).

In order to satisfy due process, an out-of-state party who is not physically present in the forum state must 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.'" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343, 85 L. Ed. 278, 283 (1940)). "Minimum contacts" requires that the outof-state entity has "purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240, 2 L. Ed. 2d 1283, 1298 (1958).

This requirement protects out-of-state parties from being required to litigate disputes in an inconvenient forum and it prohibits states from exceeding their jurisdictional limits.

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92, 100 S. Ct. 559, 564, 62 L. Ed. 2d 490, 498 (1980). Analysis under this doctrine requires consideration of whether the outof-state party should reasonably anticipate being haled into court in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S. Ct. 2174, 2183, 85 L. Ed. 2d 528, 542 (1985). The purposeful availment requirement protects out-of-state parties from being haled into court in a foreign jurisdiction solely on the basis of random, fortuitous, or attenuated contacts, or as a result of the unilateral activity of some other party. Id. at 475, 105, S. Ct. at 2183, 85 L. Ed. 2d at 542 (quotations omitted).

The due process test in this regard is a two-step process, first evaluating whether the party seeking to assert jurisdiction has established sufficient minimum contacts, and, if so, whether entertaining jurisdiction would be consistent with considerations of fair play and substantial justice. Id. at 476, 105 S. Ct. at 2184, 85 L. Ed. 2d at 543. Once it is demonstrated that the out-of-state party has been found to have the requisite minimum contacts with the forum, the burden shifts to the non-resident party, who must then "present a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Id. at 477, 105 S. Ct. at 2184-85, 85 L. Ed. 2d at 544.

In determining the degree of minimum contacts required, courts distinguish between specific and general jurisdiction. Wilson v. Paradise Vill. Beach Resort & Spa, 395 N.J. Super. 520, 527 (App. Div. 2007). "If a cause of action arises directly out of a defendant's contacts with the forum state, the court's jurisdiction is 'specific.'" Waste Mgmt., Inc. v. Admiral Ins. Co., 138 N.J. 106, 119 (1994), cert. denied, 513 U.S. 1183, 115 S. Ct. 1175, 130 L. Ed. 2d 1128 (1995). On the other hand, jurisdiction is deemed "general" if the cause of action is unrelated to the contacts between the out-of-state party and the forum state, in which case the contacts must be continuous and substantial. Charles Gendler & Co. v. Telecom Equip. Corp., 102 N.J. 460, 471-72 (1986). Jurisdiction is more likely to be found when the cause of action arises directly out of the contacts between the out-of-state party and the forum state. Id. at 471.

In this case, plaintiffs argue that sufficient minimum contacts existed between Air Wilmington and New Jersey to satisfy the criteria for both general and special jurisdiction. We will discuss them in turn.

A.

In order to establish general jurisdiction, the degree of minimum contacts must be to such a high degree that is tantamount to approximating physical presence within the forum state. Wilson, supra, 395 N.J. Super. at 528 (quotation omitted). Because the contacts must be "continuous and substantial," ibid., "there must be a showing of not only the 'nature and quality' but also the 'quantity' of the contacts with the forum state," ibid. (quoting Lakin v. Prudential Sec., Inc., 348 F.3d 704, 712 (8th Cir. 2003)).

Applying these principles, it is clear to us that any contacts Air Wilmington had with New Jersey were extremely limited in character and sporadic in frequency and number. The alleged UVAir ads are of no consequence in this regard. The UVAir credit card ad said nothing about New Jersey. The main thrust of the UVAir website which included a map depicting Teterboro Airport was to promote Air Wilmington as a convenient stop-over point for travelers to the Bahamas. Its purpose was to sell UVAir's product, aviation fuel. This can hardly be characterized as Air Wilmington targeting the New Jersey market. More importantly, the record is bereft of any evidence that Air Wilmington expressly and purposefully participated in the design of the ad. Indeed, no one at Air Wilmington ever saw the ad until long after the crash and well into this litigation. The ad was not even posted until November or December 2008, nearly three years after the crash.

The handful of thank-you letters to customers who had previously visited Air Wilmington's facility are also insignificant. It is important to note that these were mainly customers who had already patronized Air Wilmington's facility in North Carolina before they received a thank you letter with a request for repeat business.

We also find insignificant the pilot service Air Wilmington provided that resulted in sixty customer planes being flown into New Jersey over a five-year period by Air Wilmington pilots. The planes were owned by third-parties and their destination was determined and directed by those third-parties, not Air Wilmington. Thus, in these instances (which were, indeed, infrequent, averaging about one time per month), Air Wilmington was not directing or interjecting itself into the New Jersey market. It was merely providing a service to its customers, which took them to a location directed by the customers. Likewise, the occasional purchases of fuel and payment of landing fees in New Jersey were incidental to those services, for the convenience of the customers, and non-remunerative to Air Wilmington.

Plaintiffs also contend that general jurisdiction minimum contacts derive from the fact that Air Wilmington sold fuel to and performed maintenance and repair services at its North Carolina facility "for many New Jersey residents and companies." The record, however, does not reveal that a substantial number of New Jersey customers patronized Air Wilmington's facility. Indeed, it is very much to the contrary. Most of Air Wilmington's clientele was not from New Jersey. As might be expected for an airport, particularly in a convenient hub area, Air Wilmington's clientele came from a multitude of states.

Of course, plaintiffs include in their analysis the fact that Dr. Kraut was a regular patron, and they correctly argue that his contacts with Air Wilmington should be considered for general jurisdiction minimum contacts analysis as well as specific jurisdiction purposes. However, even assuming Air Wilmington was aware that Dr. Kraut was a New Jersey resident, his business represented a very small portion of Air Wilmington's overall operation.

These very limited contacts, by virtue of their nature and number, were grossly insufficient to qualify as continuous and substantial contacts, such that they approximated a physical presence in New Jersey. They were not such that Air Wilmington, by engaging in them, purposefully availed itself of the protection and benefits of New Jersey's laws and therefore implicitly agreed to submit to those laws. They were not of the type or quantity that would cause a party to expect to be haled into court in New Jersey.

Plaintiffs rely primarily on two cases in support of their general jurisdiction argument, namely, our Supreme Court's decisions in Nicastro v. McIntyre Machinery America, Ltd., 201 N.J. 48 (2010), rev'd, 564 U.S. ____, 131 S. Ct. 2780, 180 L. Ed. 2d 765 (2011), and Lebel v. Everglades Marina, Inc., 115 N.J. 317 (1989). This reliance is misplaced. Both of those were special jurisdiction cases. Further, Nicastro, in which special jurisdiction was premised on the "stream of commerce" theory of minimum contacts, is factually inapposite and has recently been reversed by the United States Supreme Court.

B.

We turn now to specific jurisdiction. "In the context of specific jurisdiction, the minimum contacts inquiry must focus on 'the relationship among the defendant, the forum, and the litigation.'" Lebel, supra, 115 N.J. at 323 (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 2580, 53 L. Ed. 2d 683, 698 (1977)). The minimum contacts requirement is satisfied in this regard only if "the contacts resulted from the defendant's purposeful conduct and not the unilateral activities of the plaintiff." Ibid. (citing World-Wide Volkswagen, supra, 444 U.S. at 297-98, 100 S. Ct. at 567-68, 62 L. Ed. 2d at 501-02).

Plaintiffs rely heavily upon Lebel, contending that if the trial court would have relied on it the court "would have determined that specific jurisdiction was established." We do not agree.

Lebel dealt with a breach of contract claim regarding the sale by a Florida seller of a luxury racing boat to a New Jersey purchaser. Id. at 320-21. After the plaintiff met the defendant's representative at a New York boat show, the defendant's representative called the plaintiff in New Jersey on at least twenty occasions over the next two years, soliciting the sale and negotiating the terms. Id. at 320. The sales agreement was sent to the plaintiff in New Jersey, where he signed it. Ibid. The plaintiff then claimed that the defendant defrauded him in connection with the sale and demanded a return of a portion of the purchase price and other relief. Id. at 320-21.

In discussing the purposeful availment requirement for specific jurisdiction, the Court noted that "the mere forseeability of an event in another state is 'not a sufficient benchmark for exercising personal jurisdiction.'" Id. at 324 (quoting Burger King, supra, 471 U.S. at 474, 105 S. Ct. at 2183, 85 L. Ed. 2d at 542). The critical consideration was whether the defendant purposely created the contacts with New Jersey. Ibid.

In that case, the plaintiff had not unilaterally brought about the contacts. Ibid. Rather, the defendant repeatedly telephoned the buyer in New Jersey and, in the course of those discussions, which were directed into New Jersey at the initiative of the defendant, he allegedly engaged in fraudulent representations and conduct. Id. at 324-25. The Court also found it significant that the defendant sent the contract to New Jersey to be signed in New Jersey. Ibid. The Court noted that "the mere transmittal of messages by mail or telephone within the state is not the critical factor, it is the nature of the contact." Id. at 325.

In Lebel, the essence of the cause of action, the defendant's fraudulent representations, were contained within those contacts through "the defendant's representations via mail and telephone to New Jersey." Id. at 326. Thus, for purposes of that sale to that plaintiff, "the defendant purposely directed his activities at the forum state." Id. at 327. It was not merely the fact that the plaintiff lived in New Jersey and the defendant knew it, but the nature of the contacts were such that they were purposefully directed by the defendant to the plaintiff while in New Jersey. Id. at 327. It was also significant that the allegedly fraudulent conduct occurred in the course of the contacts, and the sale which was the subject of the dispute was consummated by a contract signed in New Jersey. Ibid. Under those circumstances, the out-of-state party "should have been aware of the possibility of litigation arising in [New Jersey]." Id. at 328.

Importantly, the Court cautioned that its holding pushed at the "outer-most limit" of personal jurisdiction. Id. at 329. Thus, had the contacts been somewhat less in their nature and number, they would likely not have passed constitutional muster.

The contacts in the case before us are substantially less significant in their nature and number than those in Lebel. Most importantly, there is nothing in the record to suggest that Air Wilmington initially solicited Dr. Kraut in New Jersey to be its customer. That arrangement apparently evolved years before the crash, when Dr. Kraut owned his previous plane, as a matter of convenience occasioned by the location of Dr. Kraut's vacation home in South Carolina and the low fuel prices at Air Wilmington. Thus, it appears that Dr. Kraut became a customer at Air Wilmington of his own doing.

The purposeful availment prong of the minimum contacts test insures that a defendant will not be subject to the jurisdiction of a foreign state at the mercy of a plaintiff's unilateral conduct. World-Wide Volkswagen, supra, 444 U.S. at 298, 100 S. Ct. at 567, 62 L. Ed. 2d at 502. Neither the inherent mobility of aircraft nor the forseeability of its contact with another state are sufficient to justify the exercise of personal jurisdiction over an out-of-state party. Hanson, supra, 357 U.S. at 253, 78 S. Ct. at 1239-40, 2 L. Ed. 2d at 1298. "[T]he forseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant's conduct and connection with the forum State are such that he [or she] should reasonably anticipate being haled into court there." World-Wide Volkswagen, supra, 444 U.S. at 297, 100 S. Ct. at 567, 62 L. Ed. 2d at 501.

Plaintiffs rely heavily on their assertion that Air Wilmington knew that Dr. Kraut was a New Jersey resident. They build upon that premise by pointing out his ongoing relationship with Air Wilmington over a number of years with two planes. Further, Air Wilmington provided maintenance and repair service from time to time for both of Dr. Kraut's planes. This included work performed about four months before the crash on the left engine that allegedly caused or contributed to the crash.

In analyzing the relationship among the defendant, the forum, and the litigation, we find the contacts between Air Wilmington and New Jersey inadequate to satisfy due process, even if it were assumed that Air Wilmington representatives knew Dr. Kraut was a New Jersey resident. All of the work ever done by Air Wilmington on Dr. Kraut's planes was done at its only facility in North Carolina. The allegedly improper work performed on the left engine four months before the crash was performed there. The litigation, of course, revolves around the quality of the work performed in North Carolina and the crash that occurred in South Carolina. This differs materially from Lebel, in which the litigation revolved around allegedly fraudulent misrepresentations the defendant directed into New Jersey to the New Jersey plaintiff, and the resulting contract entered into in New Jersey at the defendant's direction. Thus, the relationship among Air Wilmington, New Jersey, and the subject matter of the litigation is extremely attenuated.

Air Wilmington accepted business from a New Jersey customer on an ongoing basis. He was one of many customers from many states. All of the business from this customer was conducted at Air Wilmington's sole facility in North Carolina. It was business that Air Wilmington did not reach into New Jersey to solicit. Based on this course of events, Air Wilmington could not have reasonably expected to be haled into court in New Jersey.

III.

Because we have determined that plaintiffs failed to establish sufficient minimum contacts to support a finding of general or specific jurisdiction, we need not address the second prong of the due process analysis, namely, whether asserting jurisdiction would violate the interests of fair play and substantial justice.

Affirmed.


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