by Stephen F. Rosenthal and Christina H. Martinez, Previously Published in the FJA Journal: July/August 2024 Issue
The authors of Robinson Helicopter Co., Inc. v. Gangapersaud, 346 So. 3d 134 (Fla. 2nd DCA 2022), may have been listening to Simon & Garfunkel’s “Mrs. Robinson” as they wrote, since “[e]very way you look at this, you lose.” Or at least the plaintiffs do when they’re trying to sue a nonresident manufacturer whose product injures someone in Florida.
If you’re suing such a corporation, you should be mindful of the potential obstacle this decision creates as well as ways to challenge it. Though Robinson purports to apply the U.S. Supreme Court’s most recent personal jurisdiction precedent, Ford Motor Company v. Montana Eighth Judicial District Court, 592 U.S. 351 (2021), it actually distorts the case. This article examines this tension and recommends strategies for combatting motions to dismiss for lack of personal jurisdiction in product liability cases against nonresident corporations.
Robinson involved circumstances that, one might think, presented a reasonably strong case for the exercise of personal jurisdiction over the nonresident aircraft manufacturer, yet the Court dismissed the case. Robinson originally sold the helicopter to a dealer in Indiana, which resold it to a Florida dentist’s medical practice.1 While being flown in Florida, the helicopter experienced an engine power loss, forcing a landing.2 The owner-pilot reached out to Robinson, which then gave a local Florida helicopter service provider, FSH, instructions for diagnosing and repairing the problem and also shipped it replacement parts.3 FSH installed a part Robinson sent to replace the fuel pump and then tried to fly the helicopter to a repair facility in Sarasota.4 Shortly
after takeoff, the engine failed again, forcing a crash landing on a Tampa roadway. A rotor blade struck a car, killing one person and injuring another.5 The family sued Robinson for strict products liability for a defective component and negligence for failing to properly diagnose and repair the problem.6
The trial court denied Robinson’s motion to dismiss for lack of personal jurisdiction, but the Second District reversed.7 This article focuses on the Court’s analysis of the constitutional prong of the due process analysis. The Second District held that Robinson lacked sufficient contacts with Florida to find purposeful availment of the forum in part because the owner of the helicopter was the one to reach out to it for help. More significantly, though, the Court dismissed as irrelevant Robinson’s relationships with 11 “authorized service centers” and three “authorized dealers” in Florida and held that “Robinson has not ‘systematically’ served a market in Florida for the type of helicopter involved in this case.”8
Robinson contains an error that threatens to limit Floridians’ ability to seek civil redress against nonresident corporations whose products flow into the state, or who solicit services in Florida, when their out-of-state acts or omissions cause injury to property or people here.9 The problem lies in the Court’s adoption of a mistaken and unduly rigid reading of the Supreme Court’s decision in Ford. In applying the Supreme Court’s due process test governing a defendant’s purposeful availment of a market, the Court misread Ford to tighten and ratchet up that standard rather than to maintain its long-standing flexibility in assessing a defendant’s relevant contacts to a forum.
Ford broke no new ground in personal jurisdiction jurisprudence, and merely rejected an unwarranted tightening of the causal nexus that Ford Motor Company and some courts advocated as part of the constitutional due process analysis. The Supreme Court made clear that it “resolve[d] these [consolidated] cases by proceeding as the Court has done for the last 75 years — applying the standards set out in International Shoe [Company v. Washington, 326 U.S. 310 (1945)] and its progeny.”10 “In thus reiterating [its] longstanding approach” to the jurisdictional inquiry, and specifically to the “arise out of or relate to” prong, the Court rejected Ford’s call to adopt a rule “that only a strict causal relationship between the defendant’s in-state activity and the litigation will do.”11 Ford’s proposed “causal test would [have] put jurisdiction in only the States of first sale, manufacture, and design” of the product.12
The proper, more flexible standard the Court adopted permits “[a] different State’s courts” to exercise jurisdiction “because of another ‘activity or occurrence’ involving the defendant that takes place in the State.”13 The paradigmatic situation is “when a company … serves a market for a product in the forum State and the product malfunctions there.”14 The Court illustrated this concept with the scenario first articulated in the plurality opinion in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980):
If the sale of a product of a manufacturer or distributor
such as Audi or Volkswagen is not simply an
isolated occurrence, but arises from the efforts of
the manufacturer or distributor to serve, directly or
indirectly, the market for its product in several or all
other States, it is not unreasonable to subject it to
suit in one of those States if its allegedly defective
merchandise has there been the source of injury to
its owner or to others.15
That is because “a corporation [which] has continuously and deliberately exploited a State’s market … must reasonably anticipate being haled into that State’s courts to defend actions based on products causing injury there.”16
The Robinson Court approached the purposeful availment requirement without paying sufficient heed to the Supreme Court’s guidance in both Ford and Woodson. The “rule” from those cases recognizes that a nonresident defendant’s effort to serve the forum state’s market “indirectly, through others” is one of several “affiliating circumstances” that can support purposeful availment.17 This, of course, is the way many companies do business.
Indirect Exploitation of a Market
In Ford, the Court identified the affiliating circumstances establishing Ford’s purposeful availment of the forum. They included Ford’s “distribut[ion] [of] replacement parts both to its own dealers and to independent auto shops in the two States.”18 The Court specifically noted that “Ford’s in-state activities designed to make driving a Ford convenient,” including “that other auto shops have ample supplies of Ford parts,” are contacts that could turn a forum resident into a Ford owner, even when buying the car out of state.19 The Supreme Court concluded that Ford’s provision of its own original parts to independent repair facilities is an activity — not unlike Ford’s sales and repairs of its cars at the company’s in-state network of dealers — that “make[s] Ford money,” as well as “foster[s] ongoing connections to its cars’ owners … making it easier to own a Ford.”20 Such an “affiliating circumstance” is
directly pertinent to whether a defendant has purposely availed itself of the privilege of conducting business in the forum state and can support
the exercise of specific jurisdiction.21
Thus, a defendant’s indirect use of third parties to serve the forum-state market for its product cannot be disregarded in assessing the defendant’s
ties to the forum for purposes of specific jurisdiction. Such “indirect” servicing of Florida’s market for its products does evidence
purposeful availment.22
The Robinson Court appears not to have heeded this guidance, limiting the contacts it considered solely to the activities of the company’s own in-state “employees, agents, or representatives.”23 It disregarded the relevance of Robinson’s use of “‘authorized’ dealers and service centers in … Florida” because “those businesses are separate entities.”24 In contrasting the fact that “Ford has dealers in every state” with the corporate separateness between Robinson and its authorized dealers, the Second District evidently presumed Ford owned or employed its dealers.25 That’s a mistaken assumption. Nothing in Ford
warrants it, and reported decisions make plain that Ford dealers are separate corporate entities.26
The Second District’s disregard of indirect contacts with Florida through Robinson dealers likely contributed to its conclusion that there was “no indication that Robinson engages in any targeted advertising in Florida.”27 Yet there was evidence — argued to the Court but unmentioned in its opinion — that Robinson “advertises” its three “authorized dealers” and 11 “authorized service centers” throughout Florida, allowing owners to “obtain maintenance and repair work all over the state of Florida … [and] Robinson to ensure that it can fulfill its warranty obligations for owners based in Florida.”28 Given the Second District’s dismissal of the relevance of third-party dealers and service centers altogether, it likely discounted this advertising in assessing
Robinson’s purposeful availment of the Florida market.
The circumstances concerning Robinson’s cultivation of a market for its helicopters in Florida, even if done indirectly through others, are not meaningfully different than those in Ford. Ford’s use of its network of dealers and independent auto shops to provide original Ford parts to Ford owners in the forum states (no matter where they purchased their car) facilitated in-state residents’ ability to buy and drive new or used Ford cars.29 Robinson’s affiliation and relationship with Florida-based independent dealers and service centers likewise facilitates the ease of use or ownership of its helicopters in Florida. Robinson sells its helicopters, including the popular R44 model involved in that case, in Florida through authorized dealers.30 And when repair needs arise, no fewer than 11 Robinson-authorized repair centers stand ready throughout Florida.31 Indeed, the helicopter owner in Robinson did exactly what the manufacturer’s activities in Florida were designed to promote: purchase a Robinson helicopter for use in Florida and, when the need arose, turn
to Robinson’s authorized dealers and service centers in Florida to repair the chopper as needed, in that case with Robinson’s direct advice.32
Raising the Constitutional Floor
Apart from disregarding Robinson’s use of third parties to serve the Florida market for its products indirectly, the Second District also artificially treated Ford as though it set a very high floor for purposeful availment. “Robinson Helicopter Company is no Ford Motor Company,” the Court remarked, observing that “Ford is a universally acknowledged household name” whereas “Robinson, on the other hand, is a comparatively small company.”33 True, but if approximating Ford’s presence were the standard, precious few companies would meet it.
It is not, despite the Second District’s language. The Supreme Court did not raise the bar for purposeful availment up to the level that only a giant company like Ford could surmount. The discussion of the facts in Ford was, necessarily, limited to the defendant before the Court. And it was designed to explain why it was “[s]mall wonder” that Ford “conceded ‘purposeful availment’ of the pertinent state markets.”34 Major auto manufacturers sued for injuries arising from an in-state accident involving a vehicle they manufactured represent “paradigm example[s] of how specific jurisdiction works.”35 Nothing in Ford suggests that fewer contacts with the forum state, by a smaller company, could not support specific jurisdiction, provided that the contacts are
“the defendant’s own choice and not random, isolated, or fortuitous.”36
In other words, the Supreme Court never suggested that the extent of Ford’s in-state contacts was anything close to the floor for minimum contacts. That would have made no sense since the case was not even a close one.37 The Supreme Court characterized Ford’s many contacts as an undeniably clear example of (more than) minimum contacts necessary to support jurisdiction, not that they somehow set a new baseline against which all other defendants’ contacts must be measured.38 The Court was careful to contrast cases involving “sporadic transactions” from those involving “continuous” business activities,39 “between [which] poles,” Justice Gorsuch observed in a concurrence, “lie a virtually infinite number of ‘affiliations’” that may or may not be enough to support specific jurisdiction.40 Thus, the task for plaintiffs trying to survive jurisdictional motions to dismiss, and for courts ruling on such
motions, is to identify, from the ground up, what kind of contacts are sufficient to show purposeful availment of a market for one’s products. It is not, as the Robinson Court did, to start from the ceiling of a paradigm example and identify ways that the case at bar falls short of that.41
The two takeaways from this discussion are that Robinson erroneously treated Ford as though it set a comparative floor for minimum contacts and misread Ford as license to disregard a nonresident manufacturer’s use of third parties in Florida to exploit the market for its products.
The Relationship Between the Defendant and the Third Party
The Robinson Court seemed to miss that the targeting of a forum “required for ‘purposeful availment’ may be done ‘directly or indirectly.’” 42 If a defendant’s sale of goods arises from its efforts to directly or indirectly serve the market for its products in Florida, it is not unreasonable to subject it to suit in Florida if its allegedly defective product causes an injury here.43
The Supreme Court’s formal adoption of this principle in Ford is rooted in the reasoning of the plurality opinion in Asahi Metal Industry Company v. Superior Court of California, 480 U.S. 102 (1987). The Asahi Court rejected the plaintiff’s argument that the placement of a product into the stream of commerce, without more, was an act by the defendant purposefully directed toward the forum state.44 Nonetheless, the Court recognized that certain “additional conduct of the defendant” can serve as a basis for specific jurisdiction when it “‘indicate[es] an intent or purpose to serve the market in the forum state’ … or indicates that the product is ‘purposely directed toward the forum State.’”45 Among other things, such additional conduct can include
serving the forum market through third parties by, for example, establishing channels for providing regular advice to customers in the forum state and marketing the product through a distributor who has agreed to serve as the sales agent in the forum state.46 In Asahi itself, the Court rejected specific jurisdiction because such “additional conduct” was lacking; the defendant “did not create, control, or employ the distribution system that brought its valves to California.”47
The Third District recently embraced and applied this principle in Mazda Motor Corporation v. Triche, where a divided court noted that “marketing [a] product through a distributor who has agreed to serve as the sales agent in the forum State” is among the acts that can demonstrate “a foreign defendant’s ‘intent or purpose to serve the market in the forum State’ justifying specific jurisdiction.”48
A question that remains to be explored is the nature of the relationship between the defendant and the third party that is necessary before the in-state contacts of that entity can appropriately be attributed to the defendant. Ford appears to condone sweeping in a broad range of relationships with third parties, with varying degrees of control by the defendant. It considered, for example, the manufacturer’s distribution of parts to both “its own dealers” and “independent auto shops.”49 Ford dealers are likely, as noted, to be separately owned companies.50 And unquestionably “independent auto shops” are separate entities over whom Ford exercised at most attenuated control.51
Despite the breadth of relationships with third parties and related activity that can seemingly qualify as “additional conduct” for assessing purposeful availment under Ford, other courts conducting the inquiry appear to have required a substantial degree of control over the third party.52 The Third District, for example, held that Mazda’s act of “creating, deputizing, and utilizing” a corporate subsidiary qualifies as the type of indirect marketing conduct that could demonstrate a defendant’s purposeful availment.53 While a parent-subsidiary relationship may entail greater degrees of control than that which existed between Ford and its independent auto shops, the Third District did not address at length how or whether Mazda specifically directed the activities of its domestic subsidiaries. This aspect of the inquiry remains somewhat uncharted. So long as a defendant deliberately utilized the third party to advance the sale of its products in the state, the third party’s foreseeable conduct in furtherance of that objective should count toward
purposeful availment.
Bear in mind that the inquiry should encompass contacts related to the defendant’s entire product line, not just the particular product model at issue. Obtaining the data to document those broader contacts begins with discovery,54 which should be cast sufficiently broadly to capture the defendant’s efforts to exploit the full market for its products. Ample precedent supports the relevance of discovery into a defendant’s full product line both to the constitutional55 and statutory56 aspects of the personal jurisdiction inquiry.
To make Florida law more robust in holding nonresident product manufacturers accountable in our courts for their tortious conduct that causes harm in Florida, plaintiffs’ counsel should take appropriately gauged jurisdictional discovery, explore defendants’ indirect exploitation of the market for their products through third parties, and where possible resist Robinson’s undue constriction of personal jurisdiction.
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1 Robinson, 346 So. 3d at 142.
2 Id. at 137.
3 Id.
4 Id.
5 Id.
6Id. at 138.
7 Robinson, 346 So. 3d at 142.
8 Id. at 144.
9 See § 48.193(1)(a)6., Fla. Stat.
10 Ford, 592 U.S. at 360 n.2 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945)).
11 Id. at 362 & n.3.
12Id. at 362.
13 Id. (cleaned up).
14 Id. at 363.
15 Ford, 592 U.S. at 363 (quoting Woodson, 444 U.S. at 297) (cleaned up; emphasis added).
16 Id. at 364 (cleaned up).
17 Woodson, 444 U.S. at 295 (emphasis added); accord Ford, 592 U.S. at 363 (“‘directly or indirectly’”) (quoting Woodson, 444 U.S. at 297).
18 Ford, 592 U.S. at 365; see also id. at 356 (identifying “Ford’s own network of dealers [which] offer[ ] an array of maintenance and repair services,” as well as “[Ford’s] provi[sion] [of ] original parts to auto supply stores and repair shops across the country”).
19 Id. at 367 (emphasis added).
20 Id. at 365.
21 See Woodson, 444 U.S. at 295.
22 Ford, 592 U.S. at 363; Woodson, 444 U.S. at 295, 297.
23Robinson, 346 So. 3d at 144.
24 Id.
25 Id. at 143.
26 See, e.g., Ocana v. Ford Motor Co., 992 So. 2d 319, 326-27 (Fla. 3rd DCA 2008) (rejecting argument that an authorized Ford dealer was an actual or apparent agent of Ford Motor Company); Bayshore Ford Truck Sales, Inc. v. Ford Motor Co., 380 F.3d 1331, 1332 (11th Cir. 2004) (explaining that Ford truck dealers are franchisees).
27 Robinson, 346 So. 3d at 144.
28 See Answer Br. of Appellees at 21, Robinson Helicopter Co., Inc. v. Gangap- ersaud, No. 2D20-2470 (Fla. 2nd DCA June 22, 2022) (hereinafter Robinson Answer Br.).
29 Ford, 592 U.S. at 365.
30 Robinson Answer Br. at 3, 7-8, 19.
31 Id. at 8.
32 Id. at 4, 8.
33 Robinson, 346 So. 3d at 143.
34 Ford, 592 U.S. at 365.
35 Id. at 366 (cleaned up).
36 Id. at 359 (quotation omitted).
37 Id. at 365.
38 Id. at 366.
39 Id. at 366 n.4.
40 Id. at 378 (Gorsuch, J., concurring in the judgment).
41 Even if Robinson’s approach were an appropriate analytic point of reference, the Court’s depiction of Robinson “as a … small company … which produced fewer than fifty helicopters in 2020,” is striking. 346 So. 3d at 143-44. Robinson touts itself as “the world’s leading manufacturer of civil helicopters” which has “since the early 80s produced more civil helicopters than all other U.S. manufacturers combined.” See https://robinsonheli.com/news/robin-son-produces-10000th-helicopter.
42 Mazda Motor Corp. v. Triche, 365 So. 3d 403, 409 (Fla. 3rd DCA 2023).
43 Id. at 410 (quoting Woodson, 444 U.S. at 297).
44 Asahi, 480 U.S. at 112.
45 Id.
46 Id.
47 Id.
48 Mazda Motor Corp., 365 So. 3d at 411-12 (quoting Asahi, 480 U.S. at 112) (emphasis added).
49 592 U.S. at 365.
50 See, e.g., Ocana, 992 So. 2d at 326-27 (examining whether Ford dealer could be actual or apparent agent of Ford Motor Company).
51 592 U.S. at 365. The Robinson Court unduly narrowed this inquiry. It excluded contacts through authorized service centers because “those businesses are separate entities.” 346 So. 2d at 144. This aspect of Robinson conflicts with the Supreme Court’s decision in Ford.
52 Mazda Motor Corp., 365 So. 3d at 412; Vermeulen v. Renault, U.S.A., Inc., 985 F.2d 1534, 1550 (11th Cir. 1993) (personal jurisdiction exists over a French auto manufacturer based in part on its series of commercial agreements with third parties, including one which agreed to act as the
manufacturer’s exclusive marketer and distributor in the United States and under which the manufacturer retained significant control).
53 Mazda Motor Corp., 365 So. 3d at 412.
54 A “[p]laintiff must be given an opportunity to develop facts sufficient to support a determination on the issue of jurisdiction.” Gleneagle Ship Mgt. Co. v. Leondakos, 602 So. 2d 1282, 1284 (Fla. 1992) (discussing Blanco v. Carigulf Lines, 632 F.2d 656 (5th Cir. 1980), and “adopt[ing] the federal courts’ policy allowing discovery on questions of jurisdiction”); see Eaton v. Dorchester Devel., Inc., 692 F.2d 727, 731 (11th Cir. 1982) (citing Blanco, 632 F.2d at 658).
55 In Ford, the Supreme Court clearly spoke in terms broader than the particular model vehicles at issue when discussing purposeful availment. See 592 U.S. at 361 (discussing “the market for automobiles and related products”); id. at 365 (considering that “Ford urges Montanans and Minnesotans to buy its vehicles, including … Explorers and Crown Victorias”) (emphasis added); id. (“Ford cars — again including those two models — are available for sale”) (emphasis added); id. (noting that in-state dealers “regularly maintain and repair Ford cars” generally) (emphasis added); id. at 374 (Alito, J., concurring) (“The whole point of [Ford’s marketing] activities was to put more Fords (including those in question here) on Minnesota and Montana roads.”) (emphasis
added). Accord Downing v. Losvar, 507 P.3d 894, 909 (Wash. Ct. App. Apr. 14, 2022) (rejecting Textron Aviation’s “product specific” argument that the Court “should assess its contacts with Washington State by limiting [its] review only to the model of airplane relevant to this suit”), review denied sub nom. Downing v. Textron Aviation, Inc., No. 100930-5, 2022 WL 4093925 (Wash. Sept. 7, 2022); Cohen v. Cont’l Motors, Inc., 864 S.E.2d 816, 826 (N.C. Ct. App. 2021) (considering aircraft engine manufacturer’s sales of component parts generally, not simply sales of the part at issue), rev. denied, 868 S.E.2d 859 (N.C. 2022); Godfried v. Ford Motor Co., No. 1:19-CV-00372-NT, 2021 WL 1819696, at *5 (D. Me. May 6, 2021) (rejecting manufacturer’s reading of the Supreme Court’s test as looking only to the specific product at issue); Sibley v. Air & Liquid Sys. Corp., No. 20-CV-07697-MMC, 2021 WL 2688819, at *3 (N.D. Cal. June 30, 2021) (citing Ford in rejecting pump manufacturer’s argument limiting the specific jurisdiction inquiry to the particular model at issue).
56 Davis v. Pyrofax Gas Corp., 429 So. 2d 1044 (Fla. 1986) (“A manufacturer or wholesaler that avails itself of the privilege of conducting solicitation activities and promoting or distributing its product line with the State of Florida should be amenable to a suit in Florida by one whose injury is occasioned by the use in Florida of the corporation’s product purchased out of the state.”) (emphasis added); Kravitz v. Gebrueder Pletscher Druckgusswaremfabrik, 442 So. 2d 985, 987 (Fla. 3rd DCA 1984) (holding that a nonresident manufacturer’s “activities in the state, i.e., the sales to an independent Florida distributor of bicycle racks, the likes of which caused injury to a person within the state, constitute sufficient minimum contacts …”) (emphasis added); Shoei Safety Helmet Corp. v. Conlee, 409 So. 2d 39, 41 (Fla. 4th DCA 1981) (“As we see it, the case boils down to whether there must be connexity to the specific manufactured object involved in the cause of action — here the specific helmet worn by the injured appellee — or whether the connexity can be to the general manufacturing activity in which the nonresident is engaged — here all models of motorcycle helmets. We find the latter more persuasive.”) (emphasis added).
