United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant Black Cat Marketing
USA's (“Black Cat”) motion to dismiss for
lack of personal jurisdiction [ECF No. 21]. Plaintiff Andrea
Marty opposes the motion [ECF No. 26], Black Cat filed a
reply brief [ECF No. 29], and the Court heard oral argument.
For the reasons stated below, the Court grants the
Factual and Procedural Background
product liability tort action arises from an injury to
Plaintiff's left hand sustained while she ignited a
half-stick smoking cracker (“the Firework”). More
specifically, on September 8, 2014, the Firework allegedly
exploded prematurely causing “massive injuries to
[P]laintiff's left hand, including amputation of her left
middle and left index fingers, and loss of the majority of
[her] left thumb.” Pl.'s compl. ¶ 12 [ECF No.
1]. Defendants allegedly distributed and sold the Firework,
which Plaintiff asserts, was defective and unreasonably
dangerous at the time it was manufactured, distributed, sold,
and used by Plaintiff. Id. ¶ 10.
currently a resident of Colorado, lived in Illinois at the
time of the accident. Id. ¶ 1. While Plaintiff
alleges: (1) she was “a citizen and resident of . . .
Illinois” at the time of the accident and (2) an
earlier lawsuit in the “Ninth Judicial Circuit of
Illinois, Henderson County, ” Illinois, “was
voluntarily dismissed without prejudice, ” Plaintiff
does not describe the place where the accident occurred.
See id. ¶¶ 1, 14.
Dave's Wholesale Fireworks (“Dave's
Fireworks”) is “a Missouri corporation having its
principal place of business” in Canton, Missouri.
Id. ¶ 2. Dave's Fireworks sells fireworks
to other retail vendors of fireworks “for subsequent
resale to the public” and to the general public.
Id. ¶ 6. Before September 8, 2014, Dave's
Fireworks distributed and sold the Firework to Marty's
Fireworks, Inc. in Hazel Green, Wisconsin, for
“subsequent resale to the public.” Id.
¶¶ 6, 8. Plaintiff purchased the Firework from
Marty's Fireworks prior to September 8, 2014.
Id. ¶ 9.
Black Cat is “a Kansas corporation having its principal
place of business . . . [in] Prairie Village, Kansas.”
Id. ¶ 3. Black Cat is “engaged in the
business . . . of marketing, distributing, and/or
facilitating the sale of fireworks to retailers.”
Id. ¶ 7. Shiu Fung Fireworks Company, Ltd.,
(“Shiu Fung”) manufactured the
Firework. Id. Before September 8, 2014,
Black Cat “had distributed and/or otherwise had placed
. . . [the Firework] into the stream of commerce, thereby
causing and/or contributing to cause” the
Firework's “distribut[ion] and/or” sale to
Dave's Fireworks “for resale to other firework
vendors and to the public.” Id.
Cat seeks dismissal arguing that it is not subject to
personal jurisdiction in a court in Missouri. More
particularly, Black Cat contends the Court lacks both general
and specific personal jurisdiction over it and must,
therefore, dismiss Plaintiff's claim against it.
Plaintiff does not “invoke or assert” general
personal jurisdiction. See Pl.'s opp'n mot.
dismiss at 9 [ECF No. 26]. Instead, Plaintiff contends only
that the Court may exercise specific personal jurisdiction
over Black Cat. In reply, Black Cat suggests the
“Court's analysis should be limited to determining
whether specific jurisdiction exists.” Black Cat's
reply at 1 [ECF No. 29]. Under principles enunciated in
Daimler AG v. Bauman, 571 U.S. 117 (2014), Black
Cat's undisputed position that the Court cannot exercise
general personal jurisdiction over Black Cat is well-taken,
because the record does not show that Black Cat is
incorporated in or has its principal place of business in
Missouri. Under the circumstances, the Court need
not further discuss Black Cat's general personal
respect to its specific personal jurisdiction argument, Black
Cat contends there is no basis for the exercise of such
jurisdiction under Missouri's long arm statute, Mo. Rev.
Stat. § 506.500, or the Fourteenth Amendment's Due
Process Clause. For purposes of Missouri's long-arm
statute, Black Cat argues Plaintiff has not shown her claim
arose from any tortious act Black Cat committed or business
that Black Cat transacted in Missouri. Black Cat reply at 2-5
[ECF No. 29]. In particular, Black Cat urges Plaintiff has
not established “how [Black Cat's] alleged
marketing activities in Missouri” are connected to an
Illinois resident's purchase of the allegedly defective
Firework in Wisconsin. Id. at 2. With respect to the
Due Process Clause, Black Cat maintains that neither a
“stream of commerce” theory nor the internet
website support the Court's exercise of specific personal
jurisdiction over Black Cat, and exercising such jurisdiction
would violate traditional notions of fair play and
substantial justice. Id. at 5-11.
responds that Missouri's long-arm statute and the
Fourteenth Amendment's Due Process Clause subject Black
Cat to this Court's specific personal jurisdiction
because Plaintiff's claim “arose” out of or
is “related to” Black Cat's marketing
activities in Missouri. Pl's opp'n mot. dismiss at 2
[ECF No. 26]. In support of its position that Black Cat's
marketing efforts were directed toward Missouri and are
related to Plaintiff's claim, Plaintiff submitted: (1)
copies of a transcript of a May 8, 2017 deposition and an
undated affidavit of Harry Chang, President of Golden Gate
Fireworks, Inc., d/b/a Black Cat Marketing U.S.A. [ECF Nos.
26-4 and 26-7]]; (2) printouts of portions of a website for
Black Cat Fireworks, www.blackcatfireworks. com [ECF
Nos. 26-5, 26-6, 26-9, 26-10]; (3) copies of written
materials prepared by Black Cat regarding the “Partner
Program” [ECF Nos. 26-8, 26-11, 26-13, and 26-14]; and
(4) an affidavit of Plaintiff, dated Nov. 30, 2014,
describing the Black Cat Fireworks information she saw, with
pictures of displays and truck-unloading activity at
Marty's Fireworks [ECF Nos. 26-3 and
26-12]. While it is not clear with respect to all
of Plaintiff's submitted materials, it appears, based on
the dates of the materials, the deposition caption, as well
as various deposition questions, deposition responses, and
certain affidavit averments that refer explicitly to
Illinois, that the deposition and affidavits were part of the
earlier Illinois lawsuit Plaintiff filed and dismissed. Black
Cat does not contest the Court's consideration of these
materials and did not file evidentiary materials responding
to, opposing, or disputing the materials Plaintiff
Information from Plaintiff's submitted materials
undated affidavit [ECF No. 26-7], Mr. Chang states he is the
President of Golden Gate Fireworks, Inc. (“Golden
Gate”) d/b/a Black Cat Marketing USA, which was
incorporated in the State of California. Chang aff.
¶¶ 2, 3. Mr. Chang avers the principal office for
Golden Gate is in California and Black Cat's principal
office is in Prairie Village, Kansas. Id.
¶¶ 4, 5. Black Cat, Mr. Chang avers, “does
not manufacture, sell, or distribute fireworks” but
“engages only in marketing activities to promote the
Black Cat Firework brand.” Id. Furthermore,
Mr. Chang states, “[s]ales of Black Cat Fireworks to
U.S. importers are conducted overseas by Shiu Fung . . ., a
Hong Kong corporation.” Id. ¶ 8. Mr.
Chang avers that Black Cat maintains a website “for
purposes of marketing the Black Cat Fireworks brand [but]
does not sell fireworks through the website.”
Id. ¶¶ 10, 11. Additionally, as stated in
Mr. Chang's affidavit, Black Cat “offers enrollment
in promotional programs through its website [and that]
enrollment . . . does not result in the sale of
fireworks.” Id. ¶¶ 12,
2017 deposition [ECF No. 26-4] of Mr. Chang reveals the
following: Mr. Chang has worked at Golden Gate Golden Gate
Fireworks, Inc. d/b/a Black Cat Marketing USA since 2005.
Chang dep. at 5-6, 9. Mr. Chang works in California and
supervises three employees (a graphic designer, a vice
president of “brand marketing, ” and an
assistant) located in the Kansas Black Cat office.
Id. at 8-10. The marketing services provided at
Black Cat's Kansas office include “design[ing] . .
. the promotional materials, [such as] brochures, . . .
sweepstakes materials, . . . posters, . . . flags and
pendants [sic?]; . . . the fireworks labels for Shiu Fung[;]
. . . [a]nd any other marketing-related programs.”
Id. at 8-9. Black Cat also “manage[s a]
website, but . . . ha[s] an outside firm that does the coding
and . . . other general maintenance for” the website.
Id. at 17-18. Black Cat, Mr. Chang testified,
“does not sell any fireworks” and “is not a
distributor of fireworks.” Id. at 15 and 46.
Instead, Mr. Chang stated, Black Cat tries “to build
brand awareness” for the Black Cat brand of fireworks.
Id. at 21. Specifically, Black Cat is “trying
. . . to increase the sales of Black Cat Fireworks in the
United States in areas where they are legal.”
Id. at 23.
Cat has “master dealers, ” “partners,
” and “preferred partners.” See,
e.g., id. at 11, 12, and 28-29. A Black Cat
“master dealer, ” Mr. Chang explained in his
deposition, is “a fireworks company . . . [that]
carr[ies] a broad selection of Black Cat [Fireworks]
products. [There are] only . . . a few of them in the
U.S.” Id. at 12. A master dealer may be a
distributor receiving product from an importer or may itself
be an importer that sells “to a distributor or . . . .
to a retailer directly.” Id. Mr. Chang
described a “master dealer” as “merely a
customer” that “buy[s] a certain amount”
and “carr[ies] a broad selection of Black Cat
[Fireworks] products.” Id. at 15. Black Cat
works with the master dealers on “signage [and] the
design of flags and posters[, ] . . . solicit[s] their input
because they are close to the consumer[, ] . . . and talk[s]
with them, not in a sales mode [but] in a marketing support
mode.” Id. at 26.
Cat partner “is simply [a position for a company
allowing it] access to the marketing materials that [Black
Cat] ha[s] on the website, ” specifically website
information that consumers do not have access to, such as,
“our marketing materials, our brochures, our premiums,
catalogs, et cetera.” Id. at 12-13; see
also “Black Cat Partner Program” sheet [ECF
No. 26-11]. Mr. Chang stated in his deposition that,
“to get access [to those website materials a company]
sign[s] up as a partner . . . by submitting a request to
[Black Cat] via the website, ” then Black Cat calls the
company to find out “who their Black Cat [Fireworks]
distributor is, ” Black Cat contacts the identified
distributor to ascertain whether the company is “a
legitimate customer” of the distributor, and, if so,
“then [the company] will be a partner” of Black
Cat. Chang dep. at 13, 66-67 [ECF No. 26-4]. From “time
to time” Black Cat sends its partners promotional
information, such as newsletters, which they “don't
do . . . anymore.” Id. at 27; see
also copies of “Scratch Pad A Newsletter For
Partners And Customers” [ECF Nos. 26-13, 26-14]. While
Black Cat would send a partner “advertising materials
such as posters or flags” if a partner requests them,
“normally, the [partners] are not dealing with [Black
Cat directly but] with their Black Cat [Fireworks]
distributor.” Chang dep. at 13 [ECF No. 26-4]. An
undated, untitled list of Black Cat partners in Indiana,
Missouri and Wisconsin provided by Plaintiff [ECF No. 26-8]
lists Marty's Fireworks in Wisconsin and approximately
forty vendors in Missouri, but not Dave's Fireworks.
See Chang dep. at 35-36 [ECF No. 26-4] identifying
what the list is.
Cat “preferred partner” is a retail location that
a fireworks dealer “tell[s] us [is] a good . . . Black
Cat [Fireworks] customer” of the dealer. Id.
at 28. “[T]he preference . . . they . . . get is that
[Black Cat] would list [a preferred partner] higher in the
dealer locator part of the” website. Id. at
28-29. The “dealer locator” part of the Black Cat
website is “a service [Black Cat] provide[s so] that a
consumer . . . looking to purchase Black Cat [Fireworks]
product[s], . . . know[s] where to go.” Id. at
29. The printout of the dealer locator part of the website
submitted by Plaintiff [ECF No. 26-9] lists Marty's
Fireworks, but does not list Dave's Fireworks.
Fung and Black Cat are separate companies. Id. at
76. Mr. Chang characterized Shiu Fung as Black Cat
Fireworks' manufacturer “because [Shiu Fung]
procure[s] the product.” Id. at 76. More
specifically, Mr. Chang described Shiu Fung's role as
follows: “Shiu Fung has relationships with a number of
importers in the U.S. And those importers give their [Black
Cat Fireworks] orders to Shiu Fung. Shiu Fung gets them
manufactured and ships them to these ...