The D.C. Circuit Court of Appeals has determined that a Romanian firearms company could not be sued by the parents of a murder victim, allegedly killed in a drive-by shooting in the District of Columbia by one of its assault rifles, because the court lacked personal jurisdiction over it. Williams v. Romarm, SA, No. 13-7022 (D.C. Cir., decided July 1, 2014).

Acknowledging the “choppy waters of the [U.S.] Supreme Court’s ‘stream of commerce’ doctrine [that] have plagued the lower courts for years,” the court relied on Justice Stephen Breyers’ narrow concurrence in J. McIntyre Machinery, Ltd. v. Nicastro, to determine that the plaintiffs failed to show that the company had a “regular flow or regular course of sales” in the District of Columbia, “or some additional efforts directed toward the forum state.” According to the evidence, the company sold its products to an American distributor in Romania, and a number of its assault rifles made their way to the District of Columbia where they are prohibited. In the court’s view, Nicastro makes clear that a manufacturer’s broad desire to target the United States through a distributor will not suffice. Rather, [plaintiffs] must allege conduct specific to the forum in some way.” Here, they relied “solely on the ‘mere unilateral’ (and criminal) activity of others—activity that takes place after the standard chain of distribution is complete; this cannot satisfy due process.”

The court declined the plaintiffs’ invitation at oral argument to consider whether the company, which is owned by the Romanian government, was independent enough to be entitled to due process. Apparently, the matter had not been briefed. Under the Foreign Sovereign Immunities Act, a foreign state is not a “person” protected by the Fifth Amendment’s Due Process Clause, and thus personal jurisdiction exists where the court has subject matter jurisdiction and service of process has been made. The court also cautioned litigants not to rely on Federal Rule of Appellate Procedure 28(j) as the parties here did to address the unbriefed foreign entity issue, stating, “We think it is worth noting the 28(j) process should not be employed as a second opportunity to brief an issue not raised in the initial briefs. The letters are more appropriately used to cite new authorities released after briefing is complete or after argument but before issuance of the court’s opinion.”