### PUBLISH

UNITED STATES COURT OF APPEALS Filed 12/11/96 TENTH CIRCUIT

BEVERLY KUENZLE and WAYNE KUENZLE, Plaintiffs-Appellees,

v. HTM SPORT-UND FREIZEITGERÄTE AG, Defendant-Appellant, No. 95-8031

Appeal from the United States District Court for the District of Wyoming (D.C. No. 92-CV-299-B)

Hampton K. O’Neill (W. Henry Combs, III, with him o n the briefs), of Murane & Bostwick, Casper, Wyoming, for Defendant-Appellant. William R. Fix, Jackson, Wyoming, for Plaintiffs-Ap pellees.

Before SEYMOUR , Chief Judge, HOLLOWAY and BRISCOE , Circuit Judges.

SEYMOUR , Chief Judge.1 The Kuenzles also sued Hoback Sports, Inc. (Hoback) , a Jackson,

Wyoming, business. Ms. Kuenzle had brought her ski s to Hoback to be serviced shortly before the accident. The Kuenzles alleged that Hoback had a duty to inform Ms. Kuenzle that her bindings had been recal led because Hoback knew about the recall at the time it serviced Ms. Kuenzl e’s skis. Prior to the district court’s consideration of Tyrolia’s motion to dismis s, the Kuenzles reached a (continued...) -2- Defendant HTM Sport-Und Freizeitgeräte AG (Tyrolia) sought leave to appeal the district court’s denial of its motion to dismiss for lack of personal jurisdiction. The district court granted leave fora permissive appeal pursuant to 28 U.S.C. § 1292(b). We accepted the appeal and we now reverse the decision of the district court.

I. Plaintiff Beverly Kuenzle, a tourist from Missouri, was seriously injured in a skiing accident near Jackson, Wyoming, in 1990. At the time of the accident, Ms. Kuenzle was using Model 285-S ski bindings thatwere manufactured in Austria by defendant Tyrolia and purchased by her i n Switzerland in 1986. Ms. Kuenzle asserts that the bindings were defectively designed, manufactured and/or assembled, and that they had been recalled prior to her accident. She brought this diversity action against Tyrolia in Wyoming, allegi ng breach of warranty, strict product liability, and negligence. Ms. Kuenzle’s h usband, Wayne, sued Tyrolia for loss of services, consortium, and companionship , society and support. 1(...continued)

settlement with Hoback, leaving Tyrolia as sole def endant. -3- Tyrolia has not addressed the merits of the Kuenzle ’s claims, arguing instead that it had insufficient contacts with Wyom ing to support assertion of the court’s jurisdiction. Specifically, Tyrolia points out that it is an Austrian company which sells its products in the United Stat es only through an independent distributor and that it conducts no bus iness in Wyoming. The Kuenzles argue that Tyrolia had sufficient contacts with Wyoming, through the actions of its employees and independent distributo r, to establish personal jurisdiction. To determine whether jurisdiction is present, we fi rst review the criteria for establishing personal jurisdiction and then evaluat e whether any of the contacts on which the Kuenzles rely satisfy those criteria.

II. “To obtain personal jurisdiction over a nonresidentdefendant in a diversity action, a plaintiff must show that jurisdiction is legitimate under the laws of the forum state and that the exercise of jurisdiction d oes not offend the due process clause of the Fourteenth Amendment.” Far West Capital, Inc. v. Towne , 46 F.3d 1071, 1074 (10th Cir. 1995) (emphasis omitted). Wy oming courts “may exercise-4-

jurisdiction on any basis not inconsistent with [ei ther] the Wyoming or [the] United States constitution.” W YO
. S TAT . § 5-1-107(a) (1992). Because this statute extends Wyoming jurisdiction to the limit o f the federal constitution, “our only concern is whether . . . maintenance of the su it . . . would . . . offend the due process clause of the Fourteenth Amendment.” Shanks v. Westland Equip. &
Parts Co. , 668 F.2d 1165, 1167 (10th Cir. 1982). Historically, due process was considered to be sati sfied only when a defendant’s person or property was present in the f orum state. Pennoyer v. Neff , 95 U.S. 714, 722 (1877). The personal presence req uirement generally prevented assertion of jurisdiction over a nonresident defend ant, id ., especially when the defendant was a corporation which was considered “p resent” only in its state of incorporation. See 4 C HARLES A. W RIGHT & A RTHUR R. M ILLER , F EDERAL P RACTICE AND P ROCEDURE § 1066 (2d ed. 1987) (discussing traditional notio ns of jurisdiction as applied to corporate defendants). InInternational Shoe Co. v. Washington , 326 U.S. 310 (1945), the Court relaxed Pennoyer’s rigid presence requirement when it held that, in addition to prese nce of person or property in the forum, due process would not be offended by the exe rcise of jurisdiction over a nonresident defendant if that defendant had “certai n minimum contacts with [the forum] such that the maintenance of the suit does n ot offend ‘traditional notions2 The “minimum contacts” principle was first articulated in International

Shoe v. Washington , 326 U.S. 310, 311-12 (1945), in the context of sp ecific jurisdiction. The cause of action there arose out of forum-related contacts. Since that time, some courts have applied “minimum contac ts” analysis exclusively to specific jurisdiction cases. Glater v. Eli Lilly & Co ., 744 F.2d 213, 216 (1st Cir. 1984). That restrictive characterization of minimu m contacts is understandable given the Supreme Court’s statement inKeeton v. Hustler Magazine, Inc. , 465 U.S. 770, 779 (1984), that minimum contacts are not required for an assertion of (continued...) -5- of fair play and substantial justice.’” Id. at 316 (quoting Milliken v. Meyer , 311 U.S. 457, 463 (1940)). The “‘minimum contacts’ standard may be met in eith er of two ways.” Trierweiler v. Croxton & Trench Holding Corp. , 90 F.3d 1523, 1532 (10th Cir. 1996). First, a court may exercise specific jurisdiction if a “defendant has ‘purposefully directed’ his activities at residents of the forum . . . and the litigation results from alleged injuries that ‘aris e out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz , 471 U.S. 462, 472 (1985) (citations omitted) (emphasis added). Second, a court may exe rcise generaljurisdiction where the defendant’s contacts, while not rising to the level of the traditional notion of presence in the forum state, are nonethel ess “continuous and systematic.” Trierweiler , 90 F.3d at 1533 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall , 466 U.S. 408, 416 (1984)); Burger King, 471 U.S. at 473 n.15; Dobbs v. Chevron U.S.A., Inc ., 39 F.3d 1064, 1068 (10th Cir. 1994); Kennedy v. Freeman , 919 F.2d 126, 128 n.2 (10th Cir. 1990). 2 Where “[g]eneral2 (...continued)

general jurisdiction; rather, the proper general ju risdiction inquiry is whether the defendant’s contacts are sufficiently “‘continuous and systematic.’” Id. (quoting Perkins v. Benguet Mining Co. , 342 U.S. 437, 438 (1952)). The strong implication from Keeton was that “minimum contacts” was a tool only of spe cific jurisdiction analysis. But since the issuance of Keeton , the Court has prefaced its discussion of both specific and general jurisdictio n over nonresident defendants with the phrases “minimum contacts” and “traditiona l notions of fair play and substantial justice.” Helicopteros Nacionales de Colombia, S.A. v. Hall , 466 U.S. 408, 414 (1984) (quoting International Shoe , 326 U.S. at 316). Since Helicopteros , the practice of using the phrase “minimum contact s” to signify the broader due process inquiry into the sufficiency of any nonresident defendant’s contacts with a forum state, rather than just an an alysis of the sufficiency of specific jurisdiction contacts, has been adopted bymany courts, and is followed by our circuit. Trierweiler v. Croxton & Trench Holding Corp. , 90 F.3d 1523, 1532-33 (10th Cir. 1996); Dobbs v. Chevron U.S.A., Inc. , 39 F.3d 1064, 1068 (10th Cir. 1994). -6- jurisdiction lies . . . the state may exercise pers onal jurisdiction over the defendant, even if the suit is unrelated to the def endant’s contacts with the state.” Trierweiler , 90 F.3d at 1533. “Whether a non-resident defendant has the requisite minimum contacts with the forum state to establish in personam jurisdiction must be decided on the particular facts of each case.” Shanks , 668 F.2d at 1166. “The plaintiff bears the burden of establishing personal jurisdiction over the defendant.” Behagen v. Amateur Basketball Ass’n of the United States , 744 F.2d 731, 733 (10th Cir. 1984), cert. denied, 471 U.S. 1010 (1985). As is the case here, “whena motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written materials, the plaintiff need only make a p rima facie showing.” Id. “We3 The district court and the parties applied the law of two specific

jurisdiction cases to the facts of this case, Asahi Metal Indus. Co. v. Superior Court , 480 U.S. 102 (1987), and World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286 (1980). -7- resolve all factual disputes in favor of the plaint iff,” and “review[] the district court’s ruling . . . de novo.” Far West Capital , 46 F.3d at 1075.

III. Although the district court held it had in personam jurisdiction over Tyrolia without specifying whether that jurisdiction was sp ecific or general, it applied a specific jurisdiction analysis, as do both parties in their appellate briefs. 3 We will therefore first consider whether Tyrolia is properl y subject to specific jurisdiction in Wyoming. A. Specific Jurisdiction “Specific jurisdiction may be exercised where the d efendant has ‘purposefully directed’ its activities toward the f orum jurisdiction and where the underlying action is based upon activities that ari se out of or relate to the defendant’s contacts with the forum.” In re Application to Enforce Administrative Subpoenas Duces Tecum , 87 F.3d 413, 418 (10th Cir. 1996) (quoting Burger King, 471 U.S. at 472). In finding that Tyrolia had suf ficient contacts with Wyoming to justify the assertion of p ersonal jurisdiction, the-8-

district court considered only one branch of the sp ecific jurisdiction test: the degree of purposeful availment reflected in the con tacts of the defendant with the forum state. Although the district court gave exte nsive review to that issue, it did not address the second prong, which must be met bef ore a court can properly exercise specific jurisdiction. The contacts must reflect purposeful availment and the cause of action must arise out of those contact s. In this case, Tyrolia manufactured the bindings in Austria and Ms. Kuenzle bought them in Switzerland and brought them to Wyom ing herself. Regardless of any contacts that exist between Tyrolia or its inde pendent distributor and the forum, this cause of action for defective bindings and breach of warranty did not arise out of those contacts. As the court noted in Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267 (9th Cir. 1995), the requirement “that the claim arises out of or results from the forum-related act ivities, is . . . not satisfied” when the plaintiff “would have suffered the same in jury even if none of the [defendant’s forum] contacts had taken place.” Id . at 271-72. Ms. Kuenzle’s accident would have occurred in Wyoming even if Tyr olia had made none of the contacts on which the Kuenzles rely to create juris diction. We therefore conclude4 Because the parties have not briefed or argued the issue, “we decline to

reach the question[] [of] whether the terms ‘arisin g out of’ and ‘related to’ describe different connections between a cause of a ction and a defendant’s contacts with a forum.” Helicopteros , 466 U.S. at 415 n.10. See also Ticketmaster-New York, Inc. v. Alioto , 26 F.3d 201, 206-07 (1st Cir. 1994) (discussing how courts since Helicopteros have interpreted the relatedness requirement). For a discussion of the “arises out of” component o f specific jurisdiction in a hypothetical case similar to the case at bar, compare Mary Twitchell, The Myth of General Jurisdiction , 101 Harv. L. Rev. 610, 660-65 (1988) (discussing a case where defendant corporation markets a product and p laintiff is injured in the forum state, but the cause of action does not “aris e out of” the forum state because plaintiff did not buy the product in the fo rum), and Mary Twitchell, A Rejoinder to Professor Brilmayer , 101 Harv. L. Rev. 1465, 1469-70 (1988) with Lea Brilmayer, Related Contacts and Personal Jurisdiction , 101 Harv. L. Rev. 1444, 1459-62 (1988).

-9- that the cause of action did not arise out of forum related activities and that the district court does not have specific jurisdiction over Tyrolia. 4
B. General Jurisdiction Although specific jurisdiction fails in this case, due process would not be offended by the district court’s assertion of juris diction if Tyrolia had contacts with Wyoming sufficient to “constitute the kind of continuous and systematic general business contacts” required for general jur isdiction. Helicopteros , 466
U.S. at 416. In assessing contacts with a forum, courts have con sidered such factors as: (1) whether the corporation solicits b usiness in the state through a local office or agents; (2) whether the c orporation sends agents into the state on a regular basis to solicitbusiness; (3) the extent to which the corporation holds itself out as doing business in5 Hoback’s general manager, Vincent Principe, attende d a Tyrolia seminar in

Kitzbuhel, Austria, in early January 1995. The Aus trian government and Atomic, another Austrian ski products manufacturer, paid Mr . Principe’s travel expenses to Kitzbuhel as part of a promotion for Austrian pr oducts. While he was there, (continued...) -10- the forum state, through advertisements, listings o r bank accounts; and (4) the volume of business conducted in the state by the corporation. Trierweiler , 90 F.3d at 1533 (citing 4 W RIGHT & M ILLER§ 1069 at 348-55 (collecting cases)). The Kuenzles argue (albeit in the specific jurisdic tion context) that Tyrolia has established sufficient contacts with Wyoming intwo ways, directly through its acts in the forum, and indirectly through the acts of its independent distributor. We will consider the sufficiency of those contacts in light of the factors set out above. 1. Tyrolia Contacts with Wyoming Tyrolia is not authorized to conduct business in Wy oming. It maintains no offices or employees in Wyoming, it owns no property in Wyoming, it maintains no telephone listing in Wyoming, and it does no adv ertising for the Model 285-S bindings in Wyoming. Although Tyrolia products app arently commanded a substantial share of the regional and national mark ets, there is no such evidence specific to Wyoming. The record contains no indication that any employee or officer of Tyrolia has ever been in Wyoming, or eve n, with one exception, 5 that(...continued)

Mr. Principe discussed Tyrolia’s wares with a Tyrol ia staff employee.

6 Franz Deutsch, Tyrolia’s general manager, stated in his 1995 deposition that he had visited the United States twice in 1994 to attend a trade show in Las Vegas as a representative of Tyrolia. He generally goes to this trade show every two or three years. At the show, he is usually acc ompanied by three to five employees of Tyrolia’s United States distributor. Mr. Deutsch has also been to Vail and Aspen in Colorado on business, but has nev er visited Wyoming. Tyrolia’s other direct contact with the United Stat es is provided through its insurance carrier. Tyrolia carried liability insur ance provided by a New York insurance carrier at the time Ms. Kuenzle’s acciden t occurred. For a discussion of personal jurisdiction over inte rnational defendants, see Gary B. Born, Reflections on Judicial Jurisdiction in Internatio nal Cases , 17 Ga. J. Int’l & Comp. L. 1, 37-42 (1987) (arguing theoryof aggregate national contacts when international defendants are involved in state law cases), and Graham C. Lilly, Jurisdiction over Domestic and Alien Defendants , 69 Va. L. Rev. 85, 116- 17 (1983). -11- Tyrolia has ever had direct dealings with any perso n or business in Wyoming. Although Tyrolia has some contacts with the United States, 6 it has no direct contacts with the state of Wyoming. In the absence of continuous and systematic activity in the forum, we cannot justify a finding of general jurisdiction based on Tyrolia’s contacts alone. We must therefore analyz e Tyrolia’s indirect contacts with Wyoming, created through its independent distr ibutor, to determine whether they are sufficient to justify the assertion of gen eral jurisdiction over Tyrolia.

2. Independent Distributor Contacts with Wyoming At the time of Ms. Kuenzle’s accident, Tyrolia’s in dependent United States distributor was Raichle Molitor USA, Inc. (Raichle) , which is based in Brewster,7 This “means that the seller was contractually requi red to make delivery in

[Schwechat], not elsewhere.” Afram Export Corp. v. Metallurgiki Halyps, S.A. , 772 F.2d 1358, 1365 (7th Cir. 1985) (citing J AMES J. W HITE & R OBERT S. S UMMERS , H ANDBOOK OF THE L AW UNDER THE UNIFORM C OMMERCIAL C ODE 107 (2d ed. 1980)).

8 Hoback Sports in Jackson, Wyoming, was a Tyrolia re call distributor for one year in 1991. As a recall distributor, Hoback sold no new Tyrolia equipment, but did replace bindings and other recalled equipme nt for Tyrolia. In his (continued...) -12- New York. Raichle bought Tyrolia bindings F.O.B. S chwechat, Austria 7and shipped them to the United States. Sometime after Ms. Kuenzle’s accident, Tyrolia changed to a new distributor, the firm of H ead Sports (Head) in Boulder, Colorado. Tyrolia now ships its products directly to Head in Colorado. As independent distributors, Raichle and Head promotedTyrolia’s products. Through these efforts, Tyrolia products apparently command a one-sixth share of the bindings market, although the record does not s pecify whether this figure refers to sales within the United States as a whole or just the Rocky Mountain area. One-fifth of Tyrolia’s entire sales of bindi ngs are to the United States and Canada. In the past, promotional activities by the distributors have included: training technicians to service Tyrolia equipment; staffing product booths at trade shows; assigning sales representatives to territori es which include Wyoming; authorizing retail outlets to act as “dealers” of T yrolia products, some of which apparently sell Tyrolia products in Wyoming; and au thorizing retail stores to serve as recall dealers in Wyoming. 88 (...continued)

deposition, Hoback’s manager stated that two other stores in the Jackson area sold Tyrolia equipment between 1976 and 1991. -13- From these facts it is clear that Tyrolia products are distributed in the United States and in Wyoming through an independentdistributor. It is not equally clear, however, that the acts of the indepe ndent distributor can be attributed to Tyrolia for the purpose of establishi ng general jurisdiction. As the Court in International Shoe explained, a nonresident corporate entity creates contacts for personal jurisdiction purposes throughits authorized representatives: its employees, directors, officers and agents. International Shoe , 326 U.S. at 316 (a corporation’s presence, for personal jurisdictio n purposes, is “manifested only by activities carried on in its behalf by those who are authorized to act for it”). The actions of an independent distributor may not i nsulate a foreign company from specific jurisdiction. See Asahi Metal Indus. Co. v. Superior Court , 480 U.S. 102, 112 (1987) (plurality opinion of Justice O’Connor) (“marketing the product through a distributor who has agreed to serve as the sales agent in the forum State” may constitute the “[a]dditional condu ct” needed to establish minimum contacts); Renner v. Lanard Toys Ltd. , 33 F.3d 277, 282 (3d Cir. 1994) ("a foreign manufacturer or seller [which] rids its elf of title by a sale F.O.B. a foreign port [does not] insulate [itself] from juri sdiction if there is the other type of activity” indicating purposeful availment). How ever, a different analysis-14-

applies in the general jurisdiction context because, “[f]or general jurisd iction, the defendant’s contacts with the state must be greaterthan those required for specific jurisdiction.” Doe v. National Medical Servs. , 974 F.2d 143, 146 (10th Cir. 1992).
In Wells Fargo & Co. v. Wells Fargo Express Co. , 556 F.2d 406, 422 (9th Cir. 1977), the court stated that, to achieve gener al jurisdiction over a corporation through a subsidiary, the existence of a “general” agency relationship must be demonstrated “so that it is not unfair or unreasonable to have [the foreign corporation] answer to the general jurisdiction of the . . . district court.” Id

. Other courts have concluded in the general jurisdic tion context that an independent distributor’s actions in a forum state will not be attributable to a foreign corporation in the absence of an agency rel ationship. See Conti v. Pneumatic Prods. Corp. , 977 F.2d 978, 981 (6th Cir. 1992) (holding that a ctions of distributors in forum state to sell and service products will not constitute continuous and systematic contact by manufacturer w ith forum required for general jurisdiction); R.L. Lipton Distrib. Co. v. Dribeck Importers, Inc. , 811 F.2d 967, 970 (6th Cir. 1987) (concluding that, since th e “[distributor’s] status was that of an independent contractor [rather than an a gent,] . . . we cannot attribute its conduct and contacts to [the importer]”); Cascade Corp. v. Hiab-Foco AB , 619 F.2d 36, 37 (9th Cir. 1980) (finding no general jur isdiction in Oregon over-15-

Swedish corporation that sells its products F.O.B. in Sweden to a United States subsidiary which markets through an Oregon independ ent distributor, when only additional contact between defendant and forum were letters and occasional visits). But cf. Michigan Nat’l Bank v. Quality Dinette, I nc ., 888 F.2d 462, 465 (6th Cir. 1989) (reversing dismissal for lack of ge neral personal jurisdiction where corporation had in-state contacts establishedby an independent sales representative, by solicitation of sales, and by ma king sales accounting for three percent of gross). We are persuaded that in the absence of an agency r elationship, the acts of a distributor are not ordinarily attributable to a foreign manufacturer for purposes of establishing general jurisdiction. In the circu mstances of this case, where there are no direct contacts between Tyrolia and Wyoming, we hold that the Kuenzles must show the existence of an agency relationship b etween Tyrolia and its distributor in order for the distributor’s contacts with Wyoming to support general jurisdiction over Tyrolia. An agency relationship is “the fiduciary relation w hich results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by t he other so to act.” True v. HiPlains Elevator Mach., Inc. , 577 P.2d 991, 999 (Wyo. 1978) (quoting
RESTATEMENT (S ECOND ) OF A GENCY§ 1 (1957)). “There can be no agency9 The pertinent agency relationship for general juris diction would be

between Tyrolia and Head, its independent distribut or in 1992 at the time the complaint was filed. Wells Fargo , 556 F.2d at 422. The record fails to demonstrate the existence of an agency relationship between Tyrolia and Head. First, the record fails to distinguish between the acts of Raichle and Head. Second, even if all the acts of independent distrib utors in the record were assumed to be attributable to Head, the record fail s to establish the elements of control and consent required of any express or impl ied agency relationship. -16- relationship unless the factual element of control is present.” Id. at 999. An agency relationship cannot be presumed, but rather must be clearly demonstrated. Sarchet v. Roach , 163 P.2d 185, 188 (Wyo. 1945). Although it is no t inconceivable that an agency relationship existed b etween Tyrolia and Head, 9 the Kuenzles have not introduced evidence sufficient to permit us to draw that conclusion. Consequently, we cannot impute to Tyrol ia any contacts Head had with Wyoming in its efforts to market products made by Tyrolia. Because the record does not establish that Tyrolia had continuous or systematic contacts with Wyoming, either directly o r through an agent, we hold that the Kuenzles did not meet their prima facie bu rden of establishing that the district court could exercise general jurisdiction over Tyrolia.-17- IV.-18-

Because the Kuenzles have failed to establish that the district court could exercise either specific or general jurisdiction ov er Tyrolia, we REVERSE and remand with directions to dismiss this action for l ack of jurisdiction.