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Litigation | MONDAY, DECEMBER 14, 2015 | S7

improper.17 The court noted that Tamborlee necessary requirements for general personal “continuous and systematic contacts” alone thereafter be re-iled because the statute of

had never operated a shore excursion in jurisdiction.
may establish general personal jurisdic- limitations has lapsed.
Florida, had never advertised to potential tion.32 The court concluded to so hold is
customers in Florida, and had never been Potential Limitation of Internet Jurisdiction
clearly in contravention of Daimler.
Conclusion
incorporated or licensed to do business in Fourth, companies incorporated or head-
Florida. Following Daimler, the court found The last category of Daimler beneicia- quartered within the United States should Though only a limited number of deci-
that these factors outweighed the fact that ries are potentially companies whose only consider the possibility that a district sions regarding the proper exercise of gen-
Tamborlee had insurance contracts with contacts with a foreign jurisdiction are tied court unable to exercise general personal eral personal jurisdiction have come from
Florida entities, a bank account in Florida, to their website. In First Metro. Church of jurisdiction will transfer the action to that the federal circuit courts, a clear trend has
a membership in a Floridian trade associa- Houston v. Genesis Group, the Fifth Circuit forum where the company is incorporated or emerged: Daimler serves as a powerful tool

tion, at least one post-ofice box in Florida, held that “maintaining an interactive website headquartered. While it can be argued that a to companies doing business throughout the
and a contract with Carnival Corporation is not enough to establish general personal district court lacking general personal juris- United States, especially those companies
consenting to the jurisdiction of the South- jurisdiction.”22 While the per curiam decision diction over an action similarly lacks author- incorporated and headquartered overseas
ern District of Florida for any and all dis- omitted reference to the Zippo “Sliding Scale” ity to transfer an action,33 in reality numerous as well as those companies traditionally sub-
putes arising from the same.18
test,23 which has been expressly adopted in courts nevertheless do so.34
ject to a multitude of jurisdictions because
the Circuit,24 its holding potentially conlicts Thus, consider the hypothetical retailer of their sizeable sales throughout the nation.
with the application of that test.
with billions of sales, hundreds of stores,
Protection From Inconvenient Forums
thousands of employees, and licensed to do •••••••••••••••••••••••••••••
DaimlerDaimler1. Daimler AG v. Bauman, 134 S. Ct. 746 (2014).
’s holding similarly protects U.S. Practical Implications
business in a given forum. Prior to , 2. Lanier Saperstein, Geoffrey Sant & T. Augustine Lo,
entities from being subjected to jurisdiction in this retailer would likely have been subject “New York State Legislature Seeks to Overturn ‘Daim-
an inconvenient forum with unfamiliar prac- To be sure, not all courts are following to suit in the forum for conduct occurring ler’,” N.Y.L.J., May 20, 2015, http://www.newyorklawjour-
tices and legal precedents and that presents the clear guidance articulated by Daimler. entirely outside the forum. Following Daimler, nal.com/id=1202726893242/New-York-State-Legislature-
the risk of navigating an unqualiied, incon- As others have written, two recent decisions the retailer should seek to dismiss the action Seeks-to-Overturn-Daimler.
3. Daimler, 134 S. Ct. at 749.
sistent, and/or inexperienced bench and/or of the Southern District seemingly depart so as to either avoid an inconvenient forum 4. See Id. at 756 note 8 (“Perkins ‘should be regarded
jury. Rather, after Daimler, U.S. corporations
from Daimler and Gucci.25 Mindful of the or to avoid suit altogether (where the retailer as a decision on its exceptional facts, not as a signiicant
importance decisions of the numerous dis- is incorporated and headquartered outside reafirmation of obsolescing notions on general jurisdic-
trict courts play in the persuasion of judges, the United States). In so doing, the retailer tion’” (quoting von Mehren & Trautman, “Jurisdiction to Adjudicate: A Suggested Analysis,” 79 Harv. L. Rev. 1121,
1144 (1966)).
To be sure, not all courts are follow- practitioners should evaluate how their own should acknowledge its substantial contacts 5. Id.
courts have applied this watershed decision with the forum and emphasize their insignii- 6. Id. at 751.
ing the clear guidance articulated in enabling companies to seek the dismissal cance as compared against the contacts of 7. Id. at 752.
of actions based solely on the exercise of MBUSA considered in Daimler. Finally, the 8. Id. at 767 (Sotomayor, J., concurring).
9. Id. at 760.
by‘Daimler’. Practitioners should general personal jurisdiction.
retailer should consider any and all beneits 10. Id. at 750.
evaluate how their own courts First, companies seeking to dismiss actions in challenging a motion for transfer of venue, 11. Gucci Am. v. Bank of China, 768 F. 3d 122, 135 (2d
based solely on the exercise of general per- such as dismissing an action that cannot
Cir. 2014). » Page S10
have applied this watershed deci- sonal jurisdiction should emphasize that 12. Id.
the burden of establishing jurisdiction rests
sion in enabling companies to
seek the dismissal of actions based with plaintiffs.26 Thus it is plaintiffs who must
allege, by a preponderance of the evidence,
solely on the exercise of general that an entity neither incorporated nor head-
quartered in a given forum nevertheless has
personal jurisdiction.
the “limited set of afiliations with a forum
[that] render [the entity] amenable to all- Don’t take a chance
should only be sued where they are incorpo- purpose jurisdiction there.”27
rated or headquartered, or where the conduct Second, companies seeking to dismiss on success

giving rise to the action was directed at the actions should disclose their contacts with
forum.
the given forum through the submission of Win more with Baker Tilly
For example, in Chavez v. Dole Food afidavits to provide a complete picture of
Co., the Third Circuit concluded the exer- such contacts and highlight their insignii-
cise of general personal jurisdiction over cance as compared to Daimler. So doing will
Chiquita Brands International (Chiquita) avoid a district court’s exercise of general
would be improper because Chiquita was personal jurisdiction based solely on a plain-
neither incorporated nor headquartered tiff’s pleadings and avoid the possibility of
in Delaware.19 In dismissing the suit against awarding a plaintiff jurisdictional discovery.

Chiquita, the District Court considered, but In Daimler, MBUSA was “the largest supplier
ultimately declined to exercise jurisdiction of luxury vehicles to the California market,”28
despite Chiquita’s being “generally present with approximately $4.6 billion in sales.29 Simi-
with continuous and systematic activity in larly, the court acknowledged the existence In today’s complex business environment, having a trusted tax, audit,
Delaware” and the fact that Chiquita’s main of “multiple California-based facilities, includ- and advisory partner is a game-changer. Our dedicated litigation and
operating subsidiary was a Delaware corpo- ing a regional ofice ., a vehicle Preparation
ration.20
Center ., and a Classic Center.”30 The court valuation practice provides exceptional client service on forensic
Similarly, in Kipp v. SKI Enter. Cor. of Wis., seemingly went out of its way to identify the accounting, fraud accounting, business valuation, and matrimonial
the Seventh Circuit held the exercise of gen- abundance of contacts between MBUSA and
matters. As one of the largest and most experienced forensic
eral personal jurisdiction improper because the forum in question.
accounting and valuation practices in the New York metropolitan
SKI Enterprise Corporation of Wisconsin (SKI), Third, companies should be prepared to
was incorporated in and headquartered in respond to assertions that by registering area, we invite you to get to know us.
Wisconsin, rather than Illinois where the suit to do business in a given forum, they con-
was iled. The court acknowledged, that SKI sented to the exercise of general personal Connect with us today at bakertilly.com
attended an annual trade show in Chicago, jurisdiction there. Long has there been a
collected email addresses of Illinois residents circuit split on whether registration alone
for marketing purposes at that show, spe- may be considered a waiver.31 Post-Daimler,

ciically targeted Illinois residents with its however, at least one judge, from the U.S.
advertising, successfully attracted a large District Court for the District of Delaware,
number of Illinois residents to its Wisconsin has recognized that to conclude a compa- © 2015 Baker Tilly Virchow Krause, LLP
resort, and published a website accessible ny’s mere registration to conduct business Baker Tilly refers to Baker Tilly Virchow Krause, LLP,
an independently owned and managed member of Baker Tilly International.
to Illinois residents.21 However, the court in a State constitutes a waiver of personal
did not ind these factors amounted to the
jurisdiction is tantamount to concluding