Relying on recent precedent from the United States Supreme Court, a US federal appeals court dismissed a wrongful death claim against a Romanian weapons manufacturer for lack of personal jurisdiction. See Williams v. Romarm, SA, No. 13-7022 (D.C. Circuit July 2014). InWilliams, the US Court of Appeals for the District of Columbia Circuit found that pursuant to the Supreme Court’s decision in J. McIntyre Machinery, Ltd. v. Nicastro, a non-US corporation’s mere sale to a US distributor, without other forum-specific connections, is insufficient to establish the minimum contacts necessary for a US court to assert personal jurisdiction over that corporation, even if its product is the means by which injury is sustained in the forum.

Background

Plaintiffs brought a wrongful death action on behalf of their son, who was the victim of a fatal shooting in Washington, DC. The weapon used in the attack was an assault rifle manufactured by National Company Romarm SA, a Romanian weapons manufacturer owned by the Romanian government. It was undisputed that Romarm sells its products, in Romania, to a US distributor that imports them for subsequent US sale. Assault weapons, including the one used in this case, are prohibited in Washington, DC, and thus Romarm’s assault rifles are not sold or offered for sale there.

The federal district court dismissed the action against Romarm for lack of personal jurisdiction. The principal issue on appeal was whether Romarm had sufficient contacts with Washington, DC to support it being subject to a lawsuit in that forum. (Plaintiffs also argued that Romarm, as an alleged agent of a foreign state, was not entitled to due process, but the appellate court found that plaintiffs did not preserve that issue in briefing.) The issue implicates the familiar “minimum contacts” jurisdictional inquiry, pursuant to which the defendant must have sufficient connection to the forum such that it is not unfair to require the defendant to appear and defend there.

Absence of forum-specific contacts precludes finding of personal jurisdiction

Plaintiffs urged a “stream of commerce” theory to establish a jurisdictionally-significant connection of Romarm to Washington, DC, arguing that Romarm was aware that its US distributor would sell Romarm’s weapons elsewhere in the US, and that some of those products would then be illegally trafficked into Washington DC. To support its allegations, plaintiffs pointed to police records showing that around forty Romarm weapons were seized by police in Washington, DC over a four-year period. Plaintiffs urged that jurisdiction was proper since it was foreseeable that Romarm’s weapons would be illegally trafficked into and used in Washington, DC.

The DC Circuit disagreed, finding that the Nicastro decision, and specifically Justice Breyer’s concurring opinion in that case, mandated dismissal. Per Nicastro, a plaintiff trying to establish personal jurisdiction over a non-US manufacturer must show a “regular flow or regular course of sales,” or additional efforts directed towards the forum state, such as specific forum state-related design, advertising, advice, or marketing. Romarm, slip op. at 10-11 (quoting J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780, 2792 (2011) (Breyer, J., concurring)). A “single isolated sale” from a distributor to a customer in the forum state remains insufficient to establish minimum contacts between the manufacturer and the forum state. Id. With regard to Romarm, the appellate court found it quite “clear” that a manufacturer’s broad desire to target generally the United States through a distributor is not enough to bring the manufacturer within the ambit of personal jurisdiction. Id., slip op. at 11. Indeed, this case presented even less of a forum connection than was seen in Nicastro, since that case involved an isolated sale into the forum, while plaintiffs in the current case did not allege a sale in Washington, DC, but rather, that the post-sale and distribution criminal activity of a non-party led to the weapon being trafficked in the forum. Per the DC Circuit, “[a]bsent facts showing Romarm targeted the District or its customers in some way–which do not exist in the record–due process will not permit the district court to exercise its jurisdiction over Romarm.” Id., slip op. at 12.

Plaintiffs are currently considering whether to seek rehearing before the DC Circuit. A copy of the decision is available here.