FILED Jan 21 2020, 8:33 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE William E. Kelley, Jr. Michael J. Jasaitis Marc A.W. Stearns Ryan A. Deutmeyer Carmel, Indiana Crown Point, Indiana
IN THE COURT OF APPEALS OF INDIANA
Aquatherm GmbH, January 21, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-PL-981 v. Appeal from the Lake Superior Court Renaissance Associates I The Honorable Limited Partnership, John M. Sedia, Judge Appellee-Plaintiff. Trial Court Cause No. 45D01-1709-PL-98
Altice, Judge.
Case Summary [1] This is an interlocutory appeal addressing the question of personal jurisdiction
over Aquatherm GmbH (GmbH), a German company that manufactures
polypropylene water pipes. Its pipes were installed in two ten-story apartment
buildings called Renaissance Towers (the Towers) located in Hammond,
Indiana and owned by Renaissance Associates I Limited Partnership
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 1 of 26 (Renaissance). After experiencing problems with the pipes, Renaissance filed a
lawsuit against multiple entities, including GmbH. GmbH filed a motion to
dismiss for lack of personal jurisdiction, which the trial court denied. GmbH
now appeals, asserting that neither general personal jurisdiction nor specific
personal jurisdiction exists.
[2] We affirm.
Facts & Procedural History [3] GmbH’s principal place of business is in Attendorn, Germany, and it
manufactures the Aquatherm pipe only in Germany. GmbH does not own or
lease any offices or any other real property in Indiana and is not registered to do
business in Indiana. GmbH does not have a warehouse anywhere in the United
States.
[4] In addition to GmbH, there are several other Aquatherm entities involved in
this lawsuit, including: Aquatherm, Inc., Aquatherm NA, L.C. (Aquatherm
NA), and Aquatherm, L.P. (Aquatherm, LP). Initially, GmbH sold all of its
Aquatherm pipe used for projects in the United States to Aquatherm, Inc. In
January 2011, Aquatherm Inc. became known as Aquatherm NA, and from
January 2011 to December 2015, GmbH sold its pipe used for projects in the
United States to Aquatherm NA. Pursuant to a December 1, 2015 asset
purchase agreement, Aquatherm NA’s assets were sold to Aquatherm, LP., and
GmbH sold all Aquatherm pipe used for projects in the United States to
Aquatherm, LP. When Aquatherm NA ceased operations, it had three
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 2 of 26 warehouses, which were in Lindon, Utah, Virginia, and Toronto, Canada.
Aquatherm, LP has one warehouse, and it is in Lindon, Utah.
[5] The Aquatherm pipe at issue was delivered by GmbH under either or both of
the following two delivery methods: (1) “FOB any European port” or (2) “Cost
Insurance Freight.” Appellant’s Brief at 10-11. Under FOB any European port,
title to the pipe transferred from GmbH to Aquatherm NA upon the pipe’s
arrival at a European port. Aquatherm NA sold the Aquatherm Pipe to
approved distributors, including Columbia Pipe & Supply. Co. (Columbia
Pipe), a defendant in this action. When the Aquatherm pipe was shipped from
an Aquatherm NA warehouse to a distributor, title to the product transferred
from Aquatherm NA to the distributor upon shipment. Appellant’s Appendix Vol.
II at 105. Under Cost of Insurance Freight delivery method, GmbH delivered
pipe to Aquatherm, LP’s Lindon, Utah warehouse where it was held “as
consignment stock” and title transferred from GmbH to Aquatherm, LP when
Aquatherm, LP took the product out of stock at the Utah warehouse.
Appellant’s Brief at 10-11. Aquatherm, LP sold Aquatherm pipe to distributors
“under [the] same conditions” as Aquatherm NA sold to distributors. Id. at 12.
[6] In 2012, Renaissance began a construction project to replace the galvanized
steel hot water supply lines in the Towers. After meetings and discussions with
personnel from Aquatherm entities and contractor Circle R Mechanical, Inc.
(Circle R), Renaissance chose GmbH’s polypropylene pipes for the Tower
project. Renaissance entered into written contracts with Circle R, in which
Circle R agreed to provide all necessary labor and materials, including boilers
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 3 of 26 and pipe, for the Towers project. Circle R purchased the pipe from Columbia
Pipe, which held a distributor agreement with Aquatherm NA. Columbia Pipe
also was the “authorized Aquatherm trainer” that trained Circle R employees
regarding installation of the pipe. Appellant’s Appendix Vol. II at 61. The project
began in 2012 and was completed in March 2013, with over 5000 linear feet of
GmbH’s pipe having been installed in the Towers.
[7] According to Renaissance, it began experiencing ruptures, failures, and
extensive leaking with the hot water piping system at the Towers in 2014. The
problems continued, and, on August 31, 2017, Renaissance filed its Complaint
against defendants Circle R, Columbia Pipe, and Aquatherm, LP 1, asserting
claims pertaining to alleged issues with the installation and performance of the
hot water piping system at the Towers, including breach of contract, various
breaches of warranty, negligence, and negligent misrepresentation. On or about
February 27, 2018, Renaissance filed its First Amended Complaint asserting
similar and additional claims against those defendants and adding defendants
Aquatherm NA, Aetna NA, L.C., Aquatherm, Inc., Clark Family Holdings,
L.C., and GmbH. 2 As to jurisdiction, the First Amended Complaint stated:
1 According to the Complaint, Renaissance is a limited partnership created under the laws of Missouri; Circle R is an Indiana corporation with its principal office in Portage, Indiana; Columbia Pipe is an Illinois corporation with its principal office in Chicago; and Aquatherm, LP is a Delaware limited partnership with its principal office in Lindon, Utah. Circle R and Columbia Pipe maintain offices in Indiana. 2 As is relevant to this appeal, Aquatherm NA is a Utah limited liability company with its principal place of business in Lindon, Utah, and GmbH is a foreign corporation organized in Germany with its principal office in Attendorn, Germany. Aquatherm, Inc. was a dissolved Utah corporation at the time the First Amended Complaint was filed.
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 4 of 26 13. This Court has personal jurisdiction over Defendants Aquatherm LP, Aquatherm NA, Aetna NA, Aquatherm, INC and CF Holdings (collectively: “Aquatherm”) under long arm jurisdiction for actions targeted to and occurring in Indiana because Aquatherm, including relevant predecessors and/or successors regularly conducts business in Indiana with respect to the marketing, sales and supplying of Aquatherm pipes that are the focus of the underlying dispute in this matter. Aquatherm representatives also traveled to Indiana to consult and/or advise with respect to the Aquatherm pipes at the Towers.
14. This Court has personal jurisdiction over Defendant Aquatherm GmbH under long arm jurisdiction for actions targeted to and occurring in Indiana because this entity regularly conducts business in Indiana with respect to the manufacture, marketing, sales and/or supplying of Aquatherm pipes that are the focus of the underlying dispute in this matter.
Id. at 60. The Amended Complaint stated that “Aquatherm claims to back its
products with a 10-year manufacturer’s warranty that covers replacement parts,
replacement labor, incidental damages, medical costs, and financial loss.” 3 Id.
at 61. The only count against GmbH alleged negligence arising out of alleged
defective design and manufacture of the pipes and failure to warn and/or
instruct Renaissance about the defects and the proper and/or safe use of the
pipes. Renaissance alleged that it was damaged in an amount of at least
$413,300 as a proximate result of GmbH’s negligence.
3 Both Complaints also alleged that, pursuant to the contracts, Circle R was to obtain professional liability insurance and keep it in effect for three years after completion of the work and that Circle R “never obtained such professional liability insurance[.]” Appellant’s Appendix Vol. II at 25, 61.
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 5 of 26 [8] On October 24, 2018, GmbH filed a Motion to Dismiss for Lack of Personal
Jurisdiction, arguing that GmbH lacked sufficient minimum contacts with
Indiana such that the exercise of jurisdiction would violate the Due Process
Clause of the Fourteenth Amendment. It maintained that GmbH’s
“involvement with the [] piping transaction was completed upon the pipe’s
delivery to Aquatherm NA’s or Columbia Pipe’s storage or warehouse
locations,” that the distributors handled the redelivery to project sites, and
“GmbH had no direct involvement with the [] Towers project.” Id. at 83.
GmbH argued that general personal jurisdiction did not exist as it did not have
continuous and systematic contacts with Indiana, nor did specific personal
jurisdiction exist because “GmbH did nothing more than place its product into
the stream of commerce, which is not enough for it to be haled into this Court.”
Id. at 94. In support of its motion to dismiss, GmbH attached the affidavits of
(1) Dirk Rosenberg, a Director of GmbH, and (2) Jordan Handy, CEO of
Aquatherm L.P. (and formerly CFO of Aquatherm, Inc. and Aquatherm NA).
[9] Rosenberg’s affidavit averred that GmbH does not own or lease property in
Indiana, “does not have any sales or marketing representatives or distribution
networks in Indiana[,]” “does not market Aquatherm pipe in [] Indiana[,]”
“had no involvement with the [Towers] project[,]” and had “no knowledge that
some of Aquatherm’s pipe . . . would eventually be redelivered to Indiana . . .
and used for the [Towers] project[.]” Id. at 98, 100. Hardy’s affidavit stated,
among other things, that GmbH did not have any involvement after the
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 6 of 26 distributor took title to the pipe and that GmbH did not track the destination of
the pipe.
[10] Renaissance filed its opposition to the motion for summary judgment, asserting
that Indiana has both general and specific personal jurisdiction over GmbH.
Renaissance argued that GmbH “has purposefully availed itself of conducting
business in Indiana” through its “substantial national distribution network in
the United States.” Id. at 109, 111. Renaissance argued that GmbH did not
merely place its product in the stream of commerce; it knew and in fact
encouraged that its product would be sold in the United States, including in
Indiana, and that GmbH’s activities made it reasonable that it would anticipate
being haled into court in Indiana.
[11] In support of its opposition, Renaissance submitted the affidavit of Daniel
Medve, Secretary for Renaissance. Medve attached to his affidavit Exhibits A
through S, which consist of printed pages from Aquatherm websites, including
pages from GmbH and Aquatherm, LP’s respective sites, answers to discovery
requests, and warranty documentation. GmbH’s website (www.aquatherm.de)
includes a link, represented by a United States flag, for United States customers
to click. Medve explained that when a user clicks the flag, a pop-up window
appears which states, “Aquatherm LP is the exclusive sales representative of
acquatherm GmbH for the USA and Canada” and, to proceed, the interested
user is to click “Enter site” link. Id. at 126, 134. Once a user clicks “Enter
site,” he/she enters the www.aquatherm.com website, which welcomes users to
Aquatherm and, among other things, provides tabs for one to “Read about
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 7 of 26 Aquatherm”, “See Aquatherm in action”, “Learn about Aquatherm”, “Install
Aquatherm systems,” and “Design with Aquatherm.” Id. at 136.
[12] The various attached web pages discuss Aquatherm companies including
GmbH, noting that GmbH “placed first” in a German research study that
collected data and assessed promising and innovative companies, was
established in 1973, and “Today Aquatherm employs more than 450 employees
at its four main locations.” Id. at 141. When describing “Our Organization”
for users, one webpage states, “Aquatherm began its major launch into the
United States” in 2007 and, as of 2013, it had seventeen companies serving as
manufacturer’s representatives in the United States and “distribution in every
state.” Id. at 173. Another page has a map of Indiana counties and states “This
area has multiple sales and support reps.” Id. at 165. The website pictures
many “current projects” around the globe, with a picture and location for each,
including one in Indianapolis, the Lifeline Data Center. Id. at 144, 152. The
Lifeline Data Center project is featured elsewhere on the site, with a testimonial
from Lifeline’s owner and describing the Lifeline project as being multi-phase
between the years 2009 and 2013. For further information on matters viewed
on the website, a user is directed to call a phone number “or simply visit our
download area at our website www.aquatherm.de.” Id. at 163.
[13] Upon clicking the “Learn about Aquatherm” tab, the website states:
We here at Aquatherm aren’t content with simply telling people how great our products are. We show it by providing an extensive ten-year warranty that covers any parts, labor, personal
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 8 of 26 injury, and incidental damages caused by material failure due to manufacturer defect. The warranty covers the pipes, fittings, and damages up to €20 million per event.
In order to take advantage of the warranty, the system must be installed by an Aquatherm-trained installer and subjected to pressure testing. The pressure test will stress the system and help identify any weak points due to improper fusions or other reasons.
Id. at 176.
[14] Medve’s affidavit averred that the ten-year warranty “is issued by Aquatherm
GmbH through Aquatherm.” Id. at 129. In support, he attached a “Warranty
Receipt”, which was produced in discovery by Aquatherm, LP to Renaissance,
dated February 8, 2013 on “aquatherm” letterhead. The Warranty Receipt
reflected that “Aquatherm GmbH provides a 10-year warranty on its products
with business liability insurance and extended product liability insurance
through ZURICH” and states that warranty claims “are valid only under the
following conditions”:
1. Only welding tools and devices approved by Aquatherm GmbH may be used in installation.
2. Installers must be certified as having received training from Aquatherm. Installers must adhere to Aquatherm GmbH technical rules and guidelines for correct installation.
3. Upon completion of a project, a record of a successful pressure test must be submitted to Aquatherm.
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 9 of 26 Id. at 216. The attached confirmation of coverage documentation from Zurich
stated that “risks insured” included “Exports; also to the USA and Canada.”
Id. at 217. Medve averred in his affidavit that the warranty “was a
determinative factor in choosing [] GmbH pipes for the [] Towers project.” Id.
at 128.
[15] An online “Explanatory Comments on the Aquatherm GmbH Warranty”
document, which Medve attached to his affidavit, stated “Thank you very
much for making the decision to use a product from aquatherm GmbH,
Germany (herein referred to as ‘aquatherm’)” and thereafter provided
information about, inter alia, the scope of the warranty, what is covered and not
covered, how compensation is determined, and required manner of making a
claim. Id. at 219. As to “how [] the amount of compensation under the
aquatherm warranty [is] determined,” it stated, “Working in collaboration with
aquatherm GmbH and the insured party, aquatherm will identify the cause of
the damage[.]” Id. The document directed that “[w]arranty claims have to be
made to aquatherm via the national aquatherm GmbH partners.” Id. at 220.
The Explanatory Comments document reflected it was prepared by GmbH in
April 2016.
[16] A portion of an Installers Manual, which was attached to Medve’s affidavit and
also provided during discovery, listed immediately next to each other the
respective names, addresses, and websites of GmbH and Aquatherm L.P.
companies. Renaissance asserted that this, and the other website evidence,
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 10 of 26 illustrated the two companies were related in terms of manufacture,
distribution, installation, and warranty of the GmbH pipes.
[17] The trial court held a hearing on GmbH’s motion to dismiss on February 7,
2019. GmbH argued that once the distributors took the pipe, they, not GmbH,
had “title, ownership, responsibility, risk of loss, everything on the pipe from
that point forward[.]” Transcript at 9. GmbH maintained that, under case law,
just having GmbH pipe end up in Indiana through the stream of commerce did
not give Indiana personal jurisdiction, general or specific, over it. As to website
and online presence, GmbH argued that its website and marketing was part of a
passive nationwide advertising plan, consisting of general information, and did
not involve interaction between consumer and the company, and under those
circumstances, did not support personal jurisdiction. As to its warranty, GmbH
asserted that having a warranty did not reflect that GmbH had actively placed
itself in Indiana to create sufficient minimum contacts to confer personal
jurisdiction.
[18] Renaissance responded with argument that while any of those factors
individually might not support personal jurisdiction, GmbH had engaged in an
“active coordinated effort” that was sufficient to support a finding of personal
jurisdiction. Id. at 20. Counsel urged, “[I]t’s that warranty in combination
with, not alone, but in combination with an active marketing scheme to
penetrate the whole [] country.” Id. at 23. Renaissance contended that GmbH
manufactured a product that it intended to be used in the United States,
including Indiana, and it marketed and warranted those products. Renaissance
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 11 of 26 highlighted that the GmbH website marketed the fact that one or more projects
were installed in Indiana and that it had sales representatives in Indiana.
[19] On February 8, 2019, the trial court issued an order denying GmbH’s motion to
dismiss. The court recognized Indiana Trial Rule 4.4(A) as the starting point
for determining personal jurisdiction and that this state may only exercise
jurisdiction if it is not inconsistent with the Indiana and United States
Constitutions, including the Fourteenth Amendment pursuant to which the
defendant must “have certain minimum contacts with the state such that the
maintenance of the suit does not offend traditional notions of fair play and
substantial justice, LinkAmerica [Corp. v. Cox, 857 N.E.2d 961, 967 (Ind 2006)];
Boyer [v. Smith, 42 N.E.3d 505, 509 (Ind. 2015)].” Appellant’s Appendix Vol. II at
20. The trial court determined that although GmbH’s “coordinated, systematic,
marketing plan” might alone not be enough of a minimum contact “to avoid
offending traditional notions of fair play and substantial justice,” that marketing
plan, combined with GmbH’s ten-year manufacturer’s warranty issued to
Renaissance put GmbH “on notice that a breach of warranty” “might make it
liable in our courts.” Id. At GmbH’s request, the trial court certified its order
for interlocutory appeal, 4 over Renaissance’s objection, and we accepted
4 The trial court stayed all trial proceedings as to GmbH only.
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 12 of 26 Discussion and Decision
I. Standard of Review [20] GmbH asserts that the trial court should have granted its motion to dismiss
based on lack of personal jurisdiction. Personal jurisdiction refers to a court’s
power to impose judgment on a particular defendant. Boyer, 42 N.E.3d at 509.
Because Indiana courts are courts of general jurisdiction, jurisdiction is
presumed. Everdry Mktg. and Mgmt., Inc. v. Carter, 885 N.E.2d 6, 10 (Ind. Ct.
App. 2008). A challenge to personal jurisdiction may be raised either as an
affirmative defense or in a motion to dismiss. See Boyer, 42 N.E.3d at 508 n.1.
“When a defendant challenges the existence of personal jurisdiction, the
plaintiff must present evidence of the court’s personal jurisdiction over the
defendant.” Wolf’s Marine, Inc. v. Brar, 3 N.E.3d 12, 15 (Ind. Ct. App. 2014).
“The defendant, however, bears the ultimate burden of proving lack of personal
jurisdiction by a preponderance of the evidence, unless such lack is apparent on
the face of the complaint.” 5 Id.
5 GmbH states that “there appears to be a split in authority among Indiana cases” with regard to which party has the burden of proof as to jurisdiction. Appellant’s Brief at 15. GmbH’s suggestion in that regard is based on the fact that our Supreme Court in LinkAmerica Corp. v. Cox, 857 N.E.2d 961, 967 (Ind. 2006), stated that personal jurisdiction must comport with the federal due process clause. GmbH suggests that this was effectively a directive that Indiana courts should follow the federal analysis – where “the plaintiff . . . bears the burden of establishing personal jurisdiction.” Appellant’s Brief at 15. We do not find that LinkAmerica’s statement was an instruction to follow the federal analysis, nor do we discern a split among Indiana courts concerning the burden of proof.
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 13 of 26 [21] We review a trial court’s decision regarding personal jurisdiction de novo.
Boyer, 42 N.E.3d at 508. We do not defer to the trial court’s legal conclusion as
to whether personal jurisdiction exists. Everdry, 885 N.E.2d at 10. However,
whether personal jurisdiction exists can depend upon factual determinations
concerning a defendant’s contacts with the forum state, and when the trial court
issues findings of jurisdictional facts, we review those findings for clear error.
Boyer, 42 N.E.3d at 509. In so doing, we consider whether the evidence
supports the findings and whether the findings support the judgment. Id. We
will reverse the trial court’s factual findings only when the record contains no
facts to support them either directly or indirectly. Id. (citing Fischer v. Heymann,
12 N.E.3d 867, 870 (Ind. 2014)).
II. Personal Jurisdiction [22] Indiana Trial Rule 4.4(A) is Indiana’s equivalent of a “long-arm statute.” It
enumerates eight specific acts that may serve as a basis for an Indiana trial
court’s assertion of personal jurisdiction over a nonresident and further provides
that “a court of this state may exercise jurisdiction on any basis not inconsistent
with the Constitutions of this state or the United States.” Our Supreme Court
in LinkAmerica determined that the catchall language “was intended to, and
does, reduce analysis of personal jurisdiction to the issue of whether the
exercise of personal jurisdiction is consistent with the Federal Due Process
Clause.” LinkAmerica, 857 N.E.2d at 967. The Due Process Clause of the
Fourteenth Amendment requires that a defendant have “certain minimum
contacts with [the forum state] such that the maintenance of the suit does not
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 14 of 26 offend traditional notions of fair play and substantial justice.” Id. (quoting Int’l
Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)); see also Boyer, 42 N.E.3d at 507.
Contacts are any acts physically performed in the forum state or acts performed
outside the forum state that have an effect within the forum. Wolf’s Marine, Inc.,
3 N.E.3d at 15 (quotations omitted).
[23] There are two types of personal jurisdiction, specific or case-linked jurisdiction
and general or all-purpose jurisdiction. See Simek v. Nolan, 64 N.E.3d 1237,
1242 (Ind. Ct. App. 2016). The plaintiff need not prove the existence of both
types of jurisdiction, as either one is sufficient. Everdry, 885 N.E.2d at 12. “[I]f
the defendant has contacts with the forum state sufficient for general or specific
jurisdiction, due process requires that the assertion of personal jurisdiction over
the defendant is reasonable.” LinkAmerica, 857 N.E.2d at 967; see also Wolf’s
Marine, Inc., 3 N.E.3d at 15 (if a defendant has contacts sufficient for general or
specific jurisdiction, “courts must then evaluate whether the exercise of
personal jurisdiction offends traditional notions of fair play and substantial
justice”).
[24] GmbH argues that the trial court has neither general nor specific personal
jurisdiction over GmbH, “a foreign manufacturer that has absolutely no
physical presence in Indiana and does not distribute or sell any pipe . . . directly
to Indiana,” and therefore the claims in the amended complaint against GmbH
should be dismissed. Appellant’s Brief at 14. Renaissance, on the other hand,
maintains that GmbH “purposefully availed itself of conducting business in
Indiana and the facts establish that the court has both general and specific
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 15 of 26 jurisdiction over it.” Appellee’s Brief at 20. We discuss each type of jurisdiction,
in turn, as needed.
a. General Personal Jurisdiction
[25] General personal jurisdiction arises when a defendant’s contacts are “so
‘continuous and systematic’ that the defendant should reasonably anticipate
being haled into the courts of the state for any matter, . . . even in causes of
action unrelated to the defendant’s contacts with the foreign state.” Sebring v.
Air Equip. & Eng’g, Inc., 988 N.E.2d 272, 275 (Ind. Ct. App. 2013). The contacts
required for general personal jurisdiction are greater than those needed to
establish specific personal jurisdiction. Wolf’s Marine, 3 N.E.3d at 15; North
Texas Steel Co. v. R.R. Donnelley & Sons Co., 679 N.E.2d 513, 519 (Ind. Ct. App.
1997) (“[c]ourts are more demanding when jurisdiction is sustained only on a
basis of general jurisdiction”), trans. denied, cert. denied (1998).
[26] In North Texas Steel Co., this court, in determining that the defendant did not
have a systematic and continuous presence in Indiana, and no general personal
jurisdiction existed, observed that there was no evidence of direct advertising or
solicitation of Indiana residents and defendant did not have offices, employees,
agents or property in Indiana. Similarly, in Brokemond v. Marshall Field & Co.,
612 N.E.2d 143, 145 (Ind. Ct. App. 1993), the court determined that
advertising, delivering merchandise, collecting Indiana sales tax, and
distributing credit cards in Indiana were insufficient to obtain general personal
jurisdiction over an out-of-state defendant. Id. at 146.
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 16 of 26 [27] In the present case, we agree with GmbH that its contacts are not so continuous
and systematic that it would reasonably anticipate being haled into court in
Indiana on any matter including one unrelated to the Renaissance lawsuit.
That is, we do not find that GmbH’s contacts are sufficient to confer general
personal jurisdiction. We thus turn to whether its contacts support specific
personal jurisdiction.
b. Specific Personal Jurisdiction
[28] A court may exercise specific personal jurisdiction over a defendant if the suit-
related conduct is related to or arises out of the defendant’s conduct within or
directed to Indiana. Boyer, 42 N.E.3d at 511. “In other words, specific
jurisdiction requires purposeful availment.” Simek, 64 N.E.3d at 1242. When
determining whether a court has specific personal jurisdiction over a defendant,
courts consider the following factors: (1) whether the plaintiff’s claim arises
from the defendant’s forum contacts; (2) the overall contacts of the defendant or
its agent with the forum state; (3) the foreseeability of being haled into court in
that state; (4) who initiated the contacts; and (5) whether the defendant
expected or encouraged contacts with the state. Id. at 1243. The inquiry into
whether a forum state may assert specific jurisdiction “‘focuses on the
relationship among the defendant, the forum, and the litigation.’” Prof’l Billing,
Inc. v. Zotec Partners, LLC, 99 N.E.3d 657, 661 (Ind. Ct. App. 2018) (quoting
Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014)). A single contact with the forum
state may be sufficient to establish specific jurisdiction over a defendant if it
creates a substantial connection with the forum state and the suit is related to
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 17 of 26 that connection. Simek, 64 N.E.3d at 1243. However, a defendant cannot be
haled into a jurisdiction “solely as a result of random, fortuitous, or attenuated
contacts or of the unilateral activity of another party or a third person.”
LinkAmerica, 857 N.E.2d at 967.
[29] GmbH maintains that Indiana does not have specific personal jurisdiction over
it, arguing, “GmbH’s strict manufacturing role in the process at issue began and
ended in Europe” and that it “does not have any sales representatives or
distributors in the United States and absolutely no involvement in the decision-
making process regarding the marketing, resale and use of the product in the
United States.” Appellant’s Brief at 37. In support, GmbH directs us to Sebring,
988 N.E.2d at 280, where the court determined that an out-of-state
manufacturer defendant was not subject to jurisdiction.
[30] In that case, Sebring filed a complaint in 2012 after several of his fingers were
amputated due to the alleged malfunction of a dust collector that he was using
during his employment at OmniSource, a company in Fort Wayne. Sebring
sued Donaldson Company, Inc., a Delaware corporation that manufactured the
dust collector at its plant in Kentucky, and NCI, a Texas corporation, that
manufactured a component (screw conveyor) for the dust collector in Texas.
NCI filed a motion to dismiss for lack of personal jurisdiction, and in support it
submitted the affidavit of its president stating, among other things, that NCI did
not have employees or facilities in Indiana, it had a national advertising
program that may have been directed to Indiana between March 1991 and
October 1993 (but not since then), since January 2003 NCI had not had a sales
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 18 of 26 representative or distribution network in Indiana, Donaldson directed and
arranged to ship the component to Fort Wayne, and NCI did not install or
inspect the component at OmniSource and never had any contact with
OmniSource or Sebring.
[31] On appeal, Sebring conceded that general jurisdiction did not apply but argued
that Indiana had specific personal jurisdiction. The Sebring court held that
NCI’s contacts with Indiana were too attenuated to support specific
jurisdiction. The manufacturing process of the component part took place
entirely within Texas, the decision to ship the screw conveyor to Indiana “was
made unilaterally by Donaldson,” and, “[i]n sum, it appears that NCI played
no role in the decision to ship the screw conveyor to Indiana and its
involvement in the transaction was complete when it tendered the screw
conveyor to the carrier in Texas.” Id. at 276. The Sebring court found that a
defendant must do “something more” than placing a product in the stream of
commerce. Id. at 280. The Sebring court’s “something more” analysis relied on
Justice Breyer’s concurring opinion in J. McIntyre Mach., Ltd. v. Nicastro, 131 S.
Ct. 2780 (2011).
[32] In J. McIntyre, the plaintiff Robert Nicastro, who worked in New Jersey, injured
his hand while using a machine manufactured by a British company, J.
McIntyre, and he filed a products liability case against J. McIntyre in New
Jersey. The New Jersey Supreme Court found that personal jurisdiction existed
relying primarily on the following three facts: (1) J. McIntyre’s American
distributor sold and shipped a machine to a New Jersey customer, at most, four
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 19 of 26 times; (2) J. McIntyre permitted and desired that its independent American
Distributor sell its machines to anyone in the United States willing to buy them;
and (3) representatives of J. McIntyre attended trade shows in such cities as
Chicago, Las Vegas, New Orleans, Orlando, San Diego, and San Francisco
(but not in New Jersey). The New Jersey Supreme Court held that its courts
“can exercise jurisdiction over a foreign manufacturer of a product so long as
the manufacturer knows or reasonably should know that its products are
distributed through a nationwide distribution system that might lead to those
products being sold in any of the fifty states.” Id. at 2785 (quotation omitted).
[33] A plurality of the United States Supreme Court disagreed and found that New
Jersey did not have personal jurisdiction as the facts did not show that McIntyre
engaged in any activities in New Jersey that revealed an intent to invoke or
benefit from the protection of the state’s laws, i.e., it did not purposefully avail
itself of the New Jersey market. Justice Breyer, joined by another justice,
concurred in the judgment, and, as quoted by the Sebring court, stated, in part:
[T]here is no “something more,” such as special state-related design, advertising, advice, marketing, or anything else. Mr. Nicastro, who here bears the burden of proving jurisdiction, has shown no specific effort by the British Manufacturer to sell in New Jersey. He has introduced no list of potential New Jersey customers who might, for example, have regularly attended trade shows. And he has not otherwise shown that the British Manufacturer “purposefully avail[ed] itself of the privilege of conducting activities” within New Jersey, or that it delivered its goods in the stream of commerce “with the expectation that they will be purchased” by New Jersey users.
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 20 of 26 Sebring, 988 N.E.2d at 278 (quoting McIntyre, 131 S. Ct. at 2792). GmbH
argues that the “something more” standard was not met in this case and that it
did “nothing more than place its product in the stream of commerce.”
Appellant’s Brief at 28. We disagree.
[34] Initially, we observe that, unlike in Sebring, GmbH did not manufacture a
component that was used in some other final product whose manufacturer
shipped it elsewhere. Rather, GmbH delivered its completed product in the
stream of commerce with the expectation that it would be purchased in various
states, including Indiana. Its website linked interested United States users to
www.aquatherm.com, which advertised a presence in the United States and
specifically identified an Indianapolis company currently using its pipes, the
Lifeline Data Center. The site also discussed GmbH, its history, growth,
products, current projects using the pipe and different applications, and the ten-
year warranty that GmbH provided.
[35] GmbH acknowledges that, in some cases, a website and national marketing
may support contacts with a forum state, but argues that under Elayyan v. Sol
Melia, SA, 571 F. Supp. 2d 886 (N.D. Ind. 2008), GmbH’s website does not
create sufficient presence in Indiana to subject GmbH to specific personal
jurisdiction. In that case, Elayyan, an Indiana resident, was injured while in
Mexico in a hotel’s outdoor pool. Defendant Sol Melia was a Spanish
corporation that was the owner of the Puerta Vallarta hotel where Elayyan was
injured, and the other defendant was Sol Group, a Delaware corporation with
its principal place of business in Florida, that provided marketing, sales, and
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 21 of 26 other services to companies associated with Sol hotels located outside of the
United States. The defendants filed separate motions to dismiss, and Elayyan
did not timely file a response. The trial court granted the uncontested motions
to dismiss.
[36] On appeal, the Elayyan court, in deciding whether personal jurisdiction could be
properly exercised over the defendants based on their websites, utilized a three-
step sliding scale test established in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.
Supp. 1119, 1124 (W.D. Pa. 1997). The Zippo test categorizes websites as (i)
passive sites, through which defendants provide basic information but “do[]
little more than make information available”, (ii) interactive sites, which “allow
users to exchange information with the host” operator, or (iii) transactional
sites, where a defendant “clearly does business over the Internet” such as
entering into contracts with residents of a foreign jurisdiction. Id. Passive sites
are not grounds for the exercise of personal jurisdiction, transactional sites
confer automatic jurisdiction, and interactive sites require examination of “the
level of interactivity and commercial nature of the exchange of information that
occurs on the Web site.” Id. In affirming the trial court’s grant of the motion to
dismiss, the Elayyan court observed that Sol Melia’s website was targeted at a
worldwide audience, allowed users to make reservations directly with Sol-brand
hotels, and did not target Indiana residents or use the word “Indiana” anywhere
on the site. As to Sol Group’s website, it was targeted at its employees and
professionals affiliated with the Sol-brand hotels and the public could not
exchange information with Sol Group on the site. Elayyan had booked his
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 22 of 26 travel through a travel agent, and had not accessed information through either
of the defendants’ websites.
[37] In the present case, GmbH urges that on the Zippo sliding scale analysis, its
website or online presence was, at best, “passive” and insufficient to subject it
to personal jurisdiction in Indiana. We disagree with this characterization and,
instead, find that the site was “interactive.” GmbH’s site, www.aquatherm.de,
directed users interested in United States applications of the pipe to click a flag
which took the user to www.aquatherm.com. There, the user was advised of
the existence of sales representatives in Indiana and invited to click for further
information. It offered the opportunity to subscribe to e-newsletters, had real-
time chat boxes available on different pages, showcased an ongoing project in
Indiana, and advised of the availability of Indiana distributors. We find this
distinguishable from the situation and the websites in Elayyan.
[38] Additionally, GmbH’s manufacturer’s warranty, which was promoted online,
did not attach automatically to each and every product, but, rather, would
become effective only after GmbH received verification that the product had
been installed by certified installers pursuant to outlined criteria and a
successful pressure test had been conducted by an approved tester and
submitted. The warranty required that, in the event of a material failure,
Aquatherm NA would collect samples of damaged product and would work “in
collaboration with aquatherm GmbH” to identify the cause of the damage and
that a claim had to “be made to aquatherm via the national aquatherm GmbH
partners.” Appellant’s Appendix Vol. II at 219-20. GmbH would review the
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 23 of 26 information for compliance and, if complete, issue a warranty to the buyer.
The warranty thus necessitated GmbH’s continued involvement with the end-
user of its product. Medve averred that GmbH’s warranty was part of
Renaissance’s decision to use GmbH product.
[39] Renaissance’s claims against GmbH arise from these contacts, and,
accordingly, we find that asserting jurisdiction would not be based on random,
fortuitous, or attenuated contact with Indiana. Considering the relationship
“among the defendant, the forum, and the litigation,” Zotec Partners, 99 N.E.3d
at 661, we find that GmbH’s activities, including its online presence and
warranty, reflect that it expected or encouraged contacts with Indiana and that
it has sufficient contacts with Indiana to support specific personal jurisdiction.
See North Texas Steel, 679 N.E.2d at 519 (finding that Texas manufacturer of
storage rack systems had purposefully availed itself of the privilege of
conducting business in Indiana, and Indiana had specific personal jurisdiction
over it, where manufacturer had shipped the racks to Indiana, through a
relationship with its distributor, and did so with knowledge that the product
was for use by a Warsaw, Indiana company).
[40] Having so found, we next move to the “reasonableness” inquiry. See Wolf’s
Marine, Inc., 3 N.E.3d at 16 (fairness inquiry is separate from the contacts
question and may be used to defeat jurisdiction even if defendant has sufficient
contacts with forum state). In determining the reasonableness of exercising
jurisdiction over a defendant, courts consider the following five factors: (1) the
burden on the defendant; (2) the forum State’s interest in adjudicating the
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 24 of 26 dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief;
(4) the interstate judicial system’s interest in obtaining the most efficient
resolution of controversies; and (5) the shared interest of the several States in
furthering fundamental substantive social policies. LinkAmerica, 857 N.E.2d at
967-68 (quoting Burger King. Corp. v. Rudzewicz, 471 U.S. 462, 476-77 (1985)).
These interests must be balanced and weighed to make certain that asserting
jurisdiction is fair in a particular case.
[41] GmbH sold its product (completed pipe) that was intended for use in the United
States to Aquatherm NA or Aquatherm, LP, which marketed and sold the pipe
to, among others, Columbia Pipe. An extensive amount of GmbH pipe was
installed in the Towers, two ten-story buildings that house residents. As the
Towers encountered failures with the pipe, the water supply to residents, which
Renaissance states in its complaint were elderly individuals, was affected. We
find that under these circumstances Indiana has an interest in adjudicating the
dispute. According to Renaissance, all the defendants named in the lawsuit,
but for GmbH, have consented to jurisdiction in Indiana, and thus Indiana
would provide the most convenient and effective location for plaintiff to seek
and obtain relief. GmbH has not established or expressly argued the existence
of a burden in litigating the matter in Indiana. Judicial economy favors
deciding the action in a single action. See North Texas Steel, 679 N.E.2d at 519
(recognizing the interstate judicial system’s interest “in the resolution, in a
single action, of a controversy involving parties from four states”). We
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 25 of 26 conclude that Indiana’s exercise of specific personal jurisdiction over GmbH
would be fair and comport with federal due process requirements.
[42] Judgment affirmed.
Robb, J. and Bradford, C.J., concur.
Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020 Page 26 of 26