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Marty v. Dave's Wholesale Fireworks, Inc.

United States District Court, E.D. Missouri, Northern Division

February 19, 2019

ANDREA MARTY, Plaintiff,
v.
DAVE'S WHOLESALE FIREWORKS and BLACK CAT MARKETING USA, Defendants.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE

         This 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 motion.[1]

         I. Factual and Procedural Background

         This 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.

         Plaintiff, 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.

         Defendant 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.[2] 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.

         Defendant 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., [3] (“Shiu Fung”) manufactured the Firework.[4] 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.

         (A) Parties' arguments

         Black 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.[5] Under the circumstances, the Court need not further discuss Black Cat's general personal jurisdiction argument.

         With 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.

         Plaintiff 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].[6] 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 submitted.[7]

         (B) Information from Plaintiff's submitted materials

         In his 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.[8] 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, 13.[9]

         The 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.

         Black 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.

         A Black 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.

         A Black 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.

         Shiu 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 ...


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