vir v. Scripto, Inc., 616 F.2d 191 (5th Cir. 1980)

R. LANIER ANDERSON, Circuit Judge:

The question before us in this diversity case is whether due process will permit the application of the Texas “Long-Arm” Statute to impose personal jurisdiction over Tokai-Seiki, a Japanese corporation. We find personal jurisdiction, and reverse. However, before addressing the merits, we must explain why this appeal is properly before us.

I. Appealability.

None of the parties to this appeal have raised the issue of appealability. Their failure to do so does not preclude this Court from addressing the question; it is well-established that a court may at any time, and sua aponte, determine whether it has jurisdiction. See Skidmore v. Syntex Laboratories, Inc., 529 F.2d 1244, 1248 n.3 (5th Cir. 1976); 5 Wright, Miller & Cooper, Federal Practice & Procedure, Civil, § 1350. Because the facts relevant to appealability in this case are somewhat convoluted, they require careful recounting.

On March 12, 1974, Mrs. Gene Oswalt was seriously burned when a “Catch 98” lighter, distributed by Scripto, allegedly malfunctioned, catching Mrs. Oswalt’s pajamas on fire. Seeking to recover damages, Mrs. Oswalt and her husband sued Scripto and Tokai-Seiki, which the Oswalts alleged was the manufacturer of the lighter. Scripto subsequently filed a cross-claim against To

kai-Seiki, and filed a third-party complaint for contribution and indemnity against Holland-Hessol Co., Inc., the manufacturer of the pajamas. Holland-Hessol in turn filed its own third-party complaint against Ameretex, the manufacturer of the fabric from which Mrs. Oswalt’s pajamas were made.

On February 28, 1977, after a hearing on the issue of personal jurisdiction, the district court entered an order dismissing Tokai-Seiki. In response to this dismissal, the Oswalts and Scripto filed a Joint Motion for Permission to Appeal. One of the representations made to the district court in this Joint Motion was that the Oswalts, had:

This Joint Motion was signed by both the Oswalts’ and Scripto’s attorneys. The district court granted the Oswalts’ and Scrip-to’s motion, and made the representations under 28 U.S.C.A. § 1292(b)1 necessary to permit an appeal of an interlocutory order. On May 2, 1977, this court, exercising its discretion under 28 U.S.C.A. § 1292(b), denied the Oswalts and Scripto leave to appeal without giving reasons for the denial.

Undeterred by this court’s refusal to hear their appeal, the Oswalts and Scripto then filed with the district court a Joint Motion to Sever the actions by Scripto against Holland-Hessol Company and the action by Holland-Hessol Company against Ameretex. In this Joint Motion, they repeated the representations concerning their settlement and the Oswalts’ agreement not to prosecute their claim against Scripto. The district court granted .this Joint Motion, and in addition entered a new Order, repeating in substance the order of February. 25,1977, as well as a Judgment, dismissing Tokai-Seiki for lack of personal jurisdiction. Because the Oswalts and Scripto this time did not request any 28 U.S.C.A. § 1292(b) representations, none were given. Nor did the district court give a Rule 54(b) certificate as is permitted by the Federal Rules of Civil Procedure.2 The Oswalts and Scripto thereupon brought the appeal now before us.

After these procedural maneuvers by the Oswalts and Scripto, the current status of the case is as follows: (1) the Oswalts, Scripto and Tokai-Seiki are the only parties

to the suit, as the actions against HollandHessol and Ameretex have been severed; (2) the judgment dismissing Tokai-Seiki does not have a Rule 54(b) certificate nor are there current § 1292(b) representations by the district court; and (3) while the Oswalts and Scripto have made representations in their Joint Motion for Permission to Appeal and in their Joint Motion to Sever that they have settled the claim by the Oswalts against Scripto, there remains no final order or judgment by the district court dismissing the claim by the Oswalts against Scripto.

It is the fact that there is no final order or judgment dismissing the claim by the Oswalts against Scripto which raises the question of whether the judgment below is final. See 28 U.S.C.A. § 1291.3 Normally, in a multi-party law suit such as this one, an order is final under § 1291 only if it meets one or the other of two conditions: (1) it must adjudicate the claims or the rights and liabilities of all the parties, or (2) it must contain the certificate required by Rule 54(b), Fed.R.Civ.P. Huckeby v. Frozen Food Express, 555 F.2d 542, 545 (5th Cir. 1977); Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir. 1973). But there is some flexibility in this rule in order that justice, and the economic termination of litigation may not suffer from an overly strict adherence to formalism. It must be remembered that practical, not technical, considerations are to govern the application of principles of finality. Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964); Jetco, supra.

We begin our analysis by noting that the representation to the district court of a settlement between the Oswalts and Scripto, and their agreement that the Oswalts would not further prosecute their claim against Scripto, is tantamount to a stipulation of dismissal under Fed.R.Civ.P. 41(a)(1)(ii).4 The representation concerning the settlement was signed by the attorneys for both the Oswalts and Scripto. It sets forth the basic terms of the agreement between the Oswalts and Scripto. It states unequivocally that in exchange for $125,-000, the Oswalts have agreed that they would not further prosecute their action against Scripto. The representation further states unequivocally that as a result of this settlement the only real defendant in the Oswalts’ cause of action is Tokai-Seiki and that the effect of the order dismissing Tokai-Seiki is to dismiss the Oswalts’ entire law suit. The clear import of these statements was to indicate to the district court that the claim of the Oswalts against Scrip-to was no longer before it.

We are not deterred in reaching this decision by the fact that Rule 41(a)(1) refers to dismissals of an “action” by notice or stipulation. While the Second Circuit in Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105 (2nd Cir. 1953), cert. denied 345 U.S. 964, 73 S.Ct. 949, 97 L.Ed. 1383 (1953), has held that “action” in Rule 41 means the entire controversy, that view was rejected by this Court in Plains Growers, Inc., Fl. M. I. Co. v. Ickes-Braun Glass,

Inc., 474 F.2d 250 (5th Cir. 1973).5 Several courts have not objected to stipulations dismissing individual parties or claims to a law suit without dismissing the entire controversy. See Pipeliners Local Union No. 798, Tulsa, Oklahoma v. Ellerd, 503 F.2d 1193 (10th Cir. 1974); Rudloff v. Johnson, 267 F.2d 708 (8th Cir. 1959); Battle v. Municipal Housing Authority for City of Yonkers, 53 F.R.D. 423 (S.D.N.Y.1971).

Nor are we deterred from finding a stipulated dismissal by the fact that there is no formal stipulation of dismissal entered in the record by the Oswalts or Scripto. This court approved a district court’s finding that an oral dismissal of claims against defendants in the course of a trial was sufficient to constitute a dismissal under Rule 41(a)(1) even though there was no formal dismissal or stipulation filed with the clerk. Harkless v. Sweeny Independent School District of Sweeny, Texas, 554 F.2d 1353, 1360 (5th Cir. 1977), aff’g. in part, 388 F.Supp. 738, 749 (S.D.Tex.1975). The Tenth Circuit in Pipeliners Local has found that a verbal stipulation of dismissal in open court sufficed for the purposes of Rule 41(a)(1)(ii). Compare, Municipal Housing Authority for the City of Yonkers, supra. To require the filing of a formal document would be to countenance a mechanistic view of the Federal Rules of Civil Procedure and exalt form over substance.

Having found that the Oswalts’ claim against Scripto was dismissed by stipulation, we conclude the dismissal of Tokai-Seiki results in the termination of the litigation in the district court. Compare Jeteo, supra. Accordingly, the order dismissing Tokai-Seiki is appealable. We now turn to the merits of this appeal.

II. Personal jurisdiction over Tokai-Seiki.

Personal jurisdiction over Tokai-Seiki is urged pursuant to Texas’ “Long-Arm” Statute, Article 2031b, Vernon’s Tex. Rev.Civ.Stat.Ann.6 Normally, there is a

two-step procedure in determining whether a state jurisdictional statute confers jurisdiction over a non-resident defendant in a federal diversity suit. First, it must be determined that the defendant is in fact amenable to service under the state statute; state law of the forum controls this question. Jetco, supra; Barrett v. Browning Arms Co., 433 F.2d 141 (5th Cir. 1970). Second, if the state statute has been complied with, then it must be determined whether assertion of jurisdiction over the defendant comports with federal due process requirements. Jetco, supra; Barrett, supra. Tokai-Seiki below argued that the first step of this test was not met because the Oswalts and Scripto had failed to make all necessary allegations to permit process to be served under Art. 2031b. Tokai-Seiki also argued that the second step was not satisfied because of lack of necessary minimum contacts to comply with due process. In its Order dismissing Tokai-Seiki, the district court expressly did not reach the question of sufficiency of process and ruled only on the constitutional issue. As this is the only question raised on appeal, we turn immediately to the due process question.7

The facts contained in the record pertinent to this issue are few and can be quickly stated. Tokai-Seiki manufactured the “Catch 98” cigarette lighter which allegedly malfunctioned and injured Mrs. Oswalt. Tokai-Seiki is a foreign corporation, incorporated under the laws of the Country of Japan. It has its principal place of business in Yokahama, Japan. There is no evidence in the record that Tokai-Seiki has now, or ever has had, any office, place of business, servant, employee or director in either the United States or Texas. There is

no evidence in the record that Tokai-Seiki has ever done business in the United States or Texas, or has ever done business with American companies, other than with Scrip-to pursuant to the plan of distribution of cigarette lighters, one of which gives rise to the instant suit. The product on which this suit is based was manufactured, assembled, sold and delivered to Scripto in Japan.8

Kevin MacCarthy, Vice-President, Marketing of Scripto, stated in an affidavit that Scripto’s records reflected that Scripto had an agreement with Tokai-Seiki whereby Scripto was the exclusive distributor of the Catch 98 lighter in the United States of America. He further swore that prior to Mrs. Oswalt’s injury, Scripto had purchased several million of the lighters and had placed them in commerce for sale to the public in the United States of America. He stated that these lighters were marketed in “many of the states of the United States.”9

MacCarthy’s affidavit is supplemented in the record by an affidavit by H. W. Sams, who stated that while he was President and Chief Executive Officer of Scripto, Inc., in January, 1973, he conducted negotiations with Tokai-Seiki concerning Scripto’s purchase of the Catch 98 lighter.10 During a discussion of the potential market in the United States for the Catch 98 lighters, Tokai-Seiki was informed of the needs of one particular Scripto customer and was informed that the customer had “national retail outlets.” Scripto did sell the Catch 98 lighters to that customer.

The record indicates that in 1973, Tokai-Seiki manufactured 3,165,000 Catch 98 lighters, and in 1974 manufactured 4,667,-

000, all of which were sold and delivered to Scripto. The record does not reveal how many of the lighters have ever been in Texas. Mr. Oswalt, who owns a drug store, purchased 12 or 14 of the lighters on a display card from Southwestern Drug Corporation, a wholesale supplier in Midland, Texas. Mrs. Oswalt got the lighter which injured her from this display card.

The district court in its order found that Tokai-Seiki “should have known or could expect the product would reach the forum.” The district court nevertheless held that due process precluded jurisdiction on two grounds: (1) that no showing had been made that Tokai-Seiki had actual knowledge the lighter would be marketed in Texas as had been done in Coulter v. Sears, Roebuck & Co., 426 F.2d 1315 (5th Cir. 1970); and (2) that no showing was made of other contacts by Tokai-Seiki with the forum as were present in Jetco, supra, and Eyerly Aircraft Co. v. Killian, 414 F.2d 591 (5th Cir. 1969).

We agree with the district court that Tokai-Seiki did have reason to know or expect that the cigarette, lighter would reach Texas. Three to four million such lighters were sold each year by Tokai-Seiki to Scripto pursuant to a distribution system which made Scripto the exclusive distributor in the United States and which included a customer with “national retail outlets.”11 Unlike the district court, we believe that this finding, in light of the circumstances of this case, is sufficient to subject Tokai-Seiki to in personam jurisdiction. The basis for our disagreement with the district court is the recent Supreme Court case, World-Wide Volkswagen v. Woodson, - U.S. -, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) and a different reading of Coulter, Eyerly and Jetco.

A. Supreme Court Guidelines

The guiding principle of due process in the exercise of personal jurisdiction was announced by the Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), which allows states to exercise jurisdiction over non-residents who have such “minimum contacts” with the state “that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” 326 U.S. at 316, 66 S.Ct. at 158. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), amplified this standard. Hanson states that due process requires “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” 357 U.S. at 253, 78 S.Ct. at 1240.

The trend of recent years has unquestionably been to expand the powers of the states to impose jurisdiction over defendants. As noted by the Supreme Court:

McGee v. International Life Insurance Co., 355 U.S. 220, 222-223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957). Despite this trend,

though, the courts must be careful not to render decisions resulting in the “eventual demise of all restrictions on the personal jurisdiction of state courts.” Hanson, 357 U.S. at 251, 78 S.Ct. at 1238.

The warning that a state’s power to impose jurisdiction is not without limits was relied upon in World-Wide Volkswagen, supra, the most recent Supreme Court pronouncement on this issue. In World-Wide Volkswagen, New York residents who had a year earlier purchased an automobile from a Massena, New York, retailer were injured in Oklahoma while driving to a new home. The Court held that due process would not permit Oklahoma to impose jurisdiction over the local retailer of the automobile or the New York automobile wholesale distributor who sold to retailers in New York, Connecticut and New Jersey. The Court rejected the argument that jurisdiction was afforded because the mobility of automobiles made it “foreseeable” that a purchaser in Massena, New York, might drive the automobile through Oklahoma. In rejecting that notion of “forseeability,” the Court pointed to the “forseeability that is critical to due process analysis”:

We believe that the imposition of personal jurisdiction over Tokai-Seiki comports with both the .holding and dictum in WorldWide Volkswagen. The Supreme Court there noted that the only contact demonstrated in the record between both the local retailer and the New York wholesaler and Oklahoma was the single automobile involved in the suit. There was nothing in the record indicating that these defendants had in any way attempted to do business in Oklahoma; rather the Massena, New York, retailer sold only in Massena, and the wholesaler’s sales were limited to New York, New Jersey and Connecticut. The facts in this case speak more strongly for the reasonableness and fairness of imposing personal jurisdiction over Tokai-Seiki. Tokai-Seiki delivered millions of the lighters to Scripto with the. understanding that Scripto .would be the exclusive distributor for the United States and that Scripto would be selling the lighters to a customer with national retail outlets. There is nothing in this record to indicate that Tokai-Seiki attempted in any way to limit the

states in which the lighters could be sold. To the contrary, the record shows that Tokai-Seiki had every reason to believe its product would be sold to a nation-wide market, that is, in any or all states. Moreover, the record shows that Texas was one of the states in which the lighters were in fact marketed, the distribution chain including a Texas wholesaler and a Texas retail store. Given this distributorship arrangement, Tokai-Seiki’s conduct and connection with Texas are such that it should reasonably anticipate being haled into court in Texas. Unlike the New York retailer and wholesaler in World-Wide Volkswagen, whose commercial ties were limited to New York, New Jersey and Connecticut, Tokai-Seiki’s distribution system was not structured to gain some “minimum assurance”, - U.S. at -, 100 S.Ct. at 567, that the lighters would not be sold in Texas.

Also, these facts place this case squarely within the dictum of World-Wide Volkswagen implying that jurisdiction over a foreign manufacturer such as Audi is constitutional. By utilizing the distribution network in the United States established by Scripto, Tokai-Seiki has made efforts to serve indirectly the market for its product in Texas. Tokai-Seiki, precisely as the dictum describes, “delivered its product into the stream of commerce with the expectation that they will be purchased by consumers in the forum state”. The instant case fits like a glove the commercial context and the manufacturer’s distribution plan for the marketing of its product contemplated by the World-Wide Volkswagen dictum.

We conclude that the guiding principles provided by the Supreme Court support jurisdiction over Tokai-Seiki. We turn now to the Fifth Circuit cases.

B. Fifth Circuit Cases

Our analysis begins with Coulter v. Sears, Roebuck & Co., 426 F.2d 1315 (5th Cir. 1970). In Coulter, this Court was called upon to decide whether due process prevented Texas from exercising jurisdiction over Warwick, a non-resident manufacturer of an allegedly defective television set distributed by Sears. The only evidence of contacts by Warwick with Texas was an affidavit by an official of Sears. This affidavit stated that “a great many of the color and black and white television sets manufactured by Warwick are and have been sold and offered by Sears in Texas, all with Warwick’s knowledge.” 426 F.2d at 1316. While this Court in Coulter noted that Warwick unquestionably knew that its products were being regularly marketed in Texas, it did not establish such actual knowledge as the touchstone of jurisdiction. Instead, this Court stated that it is sufficient to impose jurisdiction over a foreign manufacturer if he introduces his product into the “stream of interstate commerce with reason to know or expect that his product would eventually be brought into Texas”, the forum state, 426 F.2d at 1318. We note that this test is almost identical to that in the World-Wide Volkswagen dictum.

In this case, the court below saw a significant distinction between the jurisdictional showing here and that in Coulter; here it has been shown that Tokai-Seiki introduced its products into the stream of commerce and should have known they would be marketed ultimately in Texas; in Coulter, it was shown that the manufacturer actually knew its products were marketed in Texas. We cannot assign such significance to this distinction. The traditional equivalence between “know” and “should have known” in our jurisprudence suggests that, for purposes relevant to this case, it is a distinction that makes no difference.12 The ultimate test of in personam jurisdiction is “reasonableness” and “fairness” and “traditional notions of fair play and substantial justice,” International Shoe Co., 326 U.S. at 316, 66 S.Ct. at 158. In applying such a test, it is a matter of common sense that there should be no distinction between “know” and “should have known.” We cannot say that a potential defendant who actually knows his products will ultimately reach the forum state any more “purposefully avails itself of the privilege of conducting activities

[there]”, Hanson v. Denckla, 357 U.S. at 253, 78 S.Ct. at 1240, than a potential defendant who merely should have known.13 Accordingly, we conclude that Coulter is controlling, and'that the court has in personam jurisdiction over Tokai-Seiki.

Tokai-Seiki, citing Coulter, Eyerly and Jeteo, supra, makes an additional argument that two conditions must be met before jurisdiction can be imposed when a manufacturer does not have actual knowledge his product is entering a particular forum state: (1) there must be a reasonable expectation that the product will enter the forum state, and (2) there must be sufficient other contacts by the manufacturer with the forum state. Tokai-Seiki argues that this two prong test is established in the following language of Jetco:

473 F.2d at 1234. The district court relied on the same reasoning in its decision.

We acknowledge that the quoted language suggests that both conditions are necessary, but we note that the language is dictum. In Jeteo, the defendant did have other contacts with the forum state on which the court could, and did, rely. Therefore, the court was not required to hold that other contacts are necessary when there is only a reasonable expectation. The fact that the Jeteo language quoted above cites Eyerly and Coulter for authority further undermines Tokai-Seiki’s argument.

In Eyerly, an Oregon manufacturer of carnival equipment sold a ride to a Chicago, Illinois, operator some 20 years before the injury giving rise to the suit. The Illinois operator sold the ride to a North Dakota operator who toured various states. While on tour in Texas, the plaintiff was injured in a fall from the ride. The manufacturer had substantial other contacts with Texas, having sold and serviced equipment there. In finding jurisdiction, Judge Goldberg relied on the dual grounds of reasonable expectation and other contacts, because both were present, but he was careful to reserve the question of whether the commission of a single tort would be sufficient without other contacts. 414 F.2d at 597-8. Thus, Eyerly does not lend authority to Tokai-Seiki’s literal interpretation of the Jetco language.

Nor does Coulter support the interpretation. Although there was actual knowledge that the product was entering the forum state in Coulter, the Court noted the same two prong test, i. e., reasonable expectation and other contacts, and clearly stated that the first prong alone is sufficient. 426 F.2d at 1318.14

Our conclusion is reinforced by the holding in Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961).15 Gray was cited favor

ably by the Supreme Court in World-Wide Volkswagen, and by this Circuit in Eyerly and in Coulter. In Gray, the plaintiff was injured in Illinois when a water heater exploded because of a defective valve. The defendant corporation manufactured the defective valve in Ohio and, subsequently, the valvé was incorporated into a hot water heater in Pennsylvania. The hot water heater was sold in the course of commerce and eventually reached Illinois. The Illinois Supreme Court in finding jurisdiction noted:

176 N.E.2d at 766. Tokai-Seiki’s contacts with Texas are more substantial and direct than those in Gray.

We hold that the facts established in this case are sufficient to impose in personam jurisdiction on Tokai-Seiki. Tokai-Seiki sold three to four million cigarette lighters per year to Scripto as part of a distribution system for its product which included Scrip-to as the exclusive distributor in the United States and a customer of Scripto with national retail outlets. Tokai-Seiki should have known that its products would reach Texas in the normal course of the distribution chain. The lighter was in fact acquired by Mrs. Oswalt from a Texas drug store which acquired it from a Texas wholesaler. This case involves the commercial context and the precise marketing distribution system contemplated by the dictum in WorldWide Volkswagen and the holding in Coulter.

REVERSED AND REMANDED.