IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 

IN AND FOR NEW CASTLE COUNTY

CHARLES HERMAN.

 

 Plaintiff,

 v.

BRP, INC., BRP US, INC., 

TELEFLEX CANADA LIMITED 

PARTNERSHIP, TELEFLEX 

CANADA, INC., KONGSBERG, 

INC. (F/K/A TELEFLEX 

MEGATECH, INC.), and 

KONGSBERG AUTOMOTIVE 

HOLDING ASA.

 

 Defendants.

 

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Date Decided: April 13, 2015

On Defendant Kongsberg Automotive Holding ASA’s Motion to Dismiss for Lack 

of Jurisdiction. GRANTED.

OPINION

Kevin J. Connors, Esquire, 1220 North Market Street, Wilmington, Delaware,

19899. Attorney for Defendant Kongsberg Automotive Holding ASA. 

Timothy E. Lengkeek, Esquire, 1000 North King Street, Wilmington, Delaware,

19801. Attorney for Plaintiff.

Scott, J.
2

Defendant Kongsberg Automotive Holding ASA (“Kongsberg Holding”) 

has moved to dismiss Plaintiff Charles Herman’s (“Plaintiff”) First Amended 

Complaint for lack of personal jurisdiction pursuant to Del. Super. Ct. R. 12(b)(2)

and based on Delaware’s long-arm statute, 10 Del. C. § 3104(c). For the following 

reasons, Defendant Kongsberg Holding’s Motion to Dismiss is GRANTED. 

Background

I. The Present Action

Plaintiff has alleged claims of strict products liability1 and negligence 

against Defendants BRP, Inc. (“BRP”), BRP US, Inc. (“BRP US”), Teleflex 

Canada Limited Partnership (“Teleflex Canada”), Teleflex Canada, Inc. 

(“Teleflex”), Kongsberg, Inc. (f/k/a Teleflex Megatech, Inc.) (“Kongsberg”), and 

Kongsberg Holding. Plaintiff’s Complaint is based upon personal injuries Plaintiff 

allegedly sustained as a result of a motor vehicle accident that occurred on August 

8, 2012 in Sturgis, South Dakota. Plaintiff alleges that while participating in a test 

drive of a 2012 Can-Am Spyder Roadster, which was then owned by Defendant 

BRP US, the vehicle and/or its steering mechanism malfunctioned or failed to turn, 

causing it to run off the road and crash. Defendants Kongsberg Holding and 

Kongsberg each filed a motion to dismiss Plaintiff’s Complaint for lack of personal 

jurisdiction on April 10, 2014. 

 1 The Court does not address the issue in this opinion, but notes that Delaware law does not 

provide for claims sounding in strict products liability. 
3

On July 10, 2014, Plaintiff filed his First Amended Complaint, which brings 

the same causes of action as the original Complaint. To address the jurisdiction 

issue, Plaintiff’s First Amended Complaint alleges that Kongsberg Holding and 

Kongsberg have consented to jurisdiction or waived any jurisdictional challenge, 

or alternatively, have sufficient minimum contacts with Delaware to comport with 

10 Del. C. § 3104 and Constitutional Due Process. On September 12, 2014, 

Defendants Kongsberg Holding and Kongsberg each filed a Motion to Dismiss 

Plaintiff’s First Amended Complaint pursuant to Superior Court Rule 12(b)(2) for 

lack of personal jurisdiction.2

Plaintiff is a resident of North Carolina. Defendant Kongsberg Holding is a 

non-operational Norwegian holding company, and the parent corporation of 

Defendant Kongsberg. Plaintiff and Defendant Kongsberg Holding are the 

relevant parties to this motion to dismiss. Defendant Kongsberg, a Canadian 

corporation and subsidiary of Defendant Kongsberg Holding, is a relevant 

nonparty to this motion to dismiss. Defendant Teleflex, a Delaware corporation

with its principal place of business in Limerick, Pennsylvania, is also a relevant 

nonparty to this motion to dismiss.

 2 Pursuant to an Order dated March 24, 2015, Plaintiff’s First Amended Complaint was 

dismissed against Defendant Kongsberg on the basis that this Court lacks personal jurisdiction 

over Defendant Kongsberg. For that reason, the remainder of this opinion addresses only 

Defendant Kongsberg Holding’s motion to dismiss. 
4

II. The Earlier Delaware Action3

On June 5, 2009, Kongsberg Holding filed its Complaint against Teleflex in 

the United States District Court for the District of Delaware (“the Earlier Delaware 

Action”).4

 The Complaint alleged three counts of breach of contract by Teleflex. 

The bases for these breaches were the Purchase Agreement, entered into by 

Kongsberg Holding and Teleflex on October 14, 2007, and a Supply Agreement 

for Marine and Power Products (“Supply Agreement”), which was entered into by 

Kongsberg Holding and Teleflex on December 7, 2007.5

 The Supply Agreement 

was one of a series of subsequent agreements entered into pursuant to, and as 

exhibits to, the Purchase Agreement.6 In its Complaint, Kongsberg Holding

generally alleged that, in the Purchase Agreement, Teleflex agreed to indemnify 

Kongsberg Holding for losses arising or resulting from any breach of any covenant 

 3 See Kongsberg Automotive Holding ASA v. Teleflex, Inc., C.A. No. 09-414-GMS (D. Del.). On 

the record before the Court, the original Complaint filed by Kongsberg Holding against Teleflex 

in the Earlier Delaware Action is the only document from which the Court can identify the legal 

claims, and their bases, involved in that action. (D.I. 74, Exhibit A). Plaintiff also submitted a 

Kongsberg Holding motion and appendix to which contained a supplemental final pre-trial order 

(together “the Exhibits”) from the Earlier Delaware Action to suggest that Kongsberg Holding’s 

suit there concerned the defective Can-Am Spyder involved in the Present Action. (D.I. 74, 

Exhibits C & D). However, the Exhibits merely reference additional claims and counterclaim in 

the Earlier Delaware Action, which were apparently brought in one or more amended 

complaints. Moreover, both documents as submitted here are incomplete, as multiple pages are, 

inexplicably, missing from throughout each. For these reasons, the Court will not rely on any 

partial information contained in the Exhibits, and discusses only the original Complaint filed by 

Kongsberg Holding against Teleflex in the Earlier Delaware Action. 

4 Kongsberg Automotive Holding ASA’s Complaint, C.A. No. 09-414-GMS (D. Del. Jun. 5, 

2009); D.I. 74, Exhibit A. 

5 Id. at ¶¶ 8-11.

6 Id. at ¶¶ 10-11. 
5

or obligation set forth in the agreement, which consisted of the Purchase 

Agreement and its appendices, exhibits, and disclosure letters.7

 

More specifically, Count I of the Complaint alleged that, pursuant to the 

Supply Agreement, Teleflex agreed to be Kongsberg Holding’s exclusive 

distributor of specified products for sale in Australia and New Zealand.8 The 

Supply Agreement also contained a provision setting forth when and how Teleflex 

was permitted to cancel any orders.9

 Kongsberg Holding alleged that Teleflex 

violated the Supply Agreement in 2008 by the way in which it cancelled a 

particular order.10 

Count II of the Complaint alleged that, when entering into the Supply 

Agreement, Teleflex knowingly provided Kongsberg Holding with inaccurate 

financial information, including product prices, which Kongsberg Holding later 

discovered and demanded Teleflex remedy.11 Kongsberg Holding alleged that 

Teleflex’s refusal to remedy those alleged misrepresentations constituted a breach 

of the Supply Agreement.12 

Finally, Count III of the Complaint alleged that Teleflex breached its 

contractual obligation under the Purchase Agreement to file certain tax returns in 

 7 Id. ¶¶ 8-9.

8 Id. ¶¶ 18-20.

9 Id. ¶¶ 21-25.

10 Id. at ¶¶ 26-32.

11 Id. at ¶¶ 34-39.

12 Id. at ¶¶ 40-41. 
6

the State of Texas and to pay all applicable taxes for the filing periods April 2001 

through December 2004, and that this breach caused damages to Kongsberg 

Holding.

13 

The relief Kongsberg Holding sought in the Complaint was, (1) an order for 

Teleflex to indemnify Kongsberg Holding from all losses, damages, cost, and 

expenses arising out of Teleflex’s breach of its covenants and obligations regarding 

the cancelled product order, improper product pricing, and the Texas sales and use 

tax audit; (2) an award of all damages arising from Teleflex’s breaches of the 

Purchase Agreement and Supply Agreement; and (3) an award of costs and 

attorneys fees for that action.

14

From the record before the Court, it appears that resolution of the Earlier 

Delaware Action is still pending in Delaware District Court. 

Parties’ Contentions

Defendant Kongsberg Holding asserts that Plaintiff’s First Amended 

Complaint must be dismissed because this Court cannot properly exercise specific 

or general personal jurisdiction over it. Kongsberg Holding argues that it lacks 

both sufficient contacts with Delaware and connection to the present action to 

 13 Id. at ¶¶ 42-51.

14 Id. at 7. 
7

satisfy Delaware’s long arm statute, 10 Del. C. § 3104(c).15 Additionally, 

Kongsberg Holding argues that its responses to Plaintiff’s discovery requests on 

this jurisdictional issue further support that Kongsberg Holding lacks sufficient 

contacts with Delaware to be subject to general personal jurisdiction in this Court. 

Furthermore, Kongsberg Holding argues that it has not consented or waived its 

challenge to jurisdiction in this State as a result of the Earlier Delaware Action

between Kongsberg Holding and Teleflex because both the parties and legal claims 

involved in the Earlier Delaware Action and Present Action are substantially 

unrelated. Therefore, Kongsberg Holding asserts that this Court cannot properly 

exercise personal jurisdiction over it in this case.

Plaintiff asserts that this Court may properly exercise personal jurisdiction 

over Defendant Kongsberg Holding because Kongsberg Holding’s voluntary 

efforts to litigate in the forum state constitutes consent to jurisdiction in this State. 

Plaintiff argues that Kongsberg Holding contracted to litigate in the Delaware 

forum for disputes arising from contracts relating to the Can-Am Spyder and then 

initiated that litigation in Delaware District Court regarding those contracts. 

Moreover, Plaintiff argues that Kongsberg Holding has insisted that the lawsuit 

take place in Delaware by rejecting opportunities to stay the Earlier Delaware 

Action and resolve that dispute in other forums where related litigation was 

 15 Defendant cites the Declaration of its Chief Financial Officer, Trond Stabekk, as support for 

this argument. 
8

pending. Plaintiff asserts that, for those reasons, Kongsberg Holding has availed 

itself of the privileges of the judicial forum in Delaware. 

Standard of Review

On a motion to dismiss for lack of in personam jurisdiction the plaintiff 

bears the burden of showing a basis for the trial court's exercise of jurisdiction over 

a nonresident defendant.16 In determining whether a plaintiff satisfies this burden, 

Delaware courts will apply a two-prong analysis to the issue of personal 

jurisdiction over a nonresident.17 The court must first consider whether Delaware's 

long arm statute, 10 Del. C. § 3104(c), is applicable.18 Second, the court must 

evaluate whether subjecting the nonresident to jurisdiction in Delaware violates the 

Due Process Clause of the Fourteenth Amendment.19 Due process requires the 

court to determine whether the defendant has minimum contacts with the forum 

state, and whether asserting personal jurisdiction comports with “traditional 

notions of fair play and substantial justice.”20 In other words, it must be “fair and 

reasonable” for the court to exercise jurisdiction over the nonresident party.21

 16 AeroGlobal Capital Mgmt., LLC v. Cirrus Indus., Inc., 871 A.2d 428, 437 (Del. 2005).

17 Id., at 438; LaNuova D & B, S.P.A. v. Bowe Co., Inc., 513 A.2d 764, 769 (Del. 1986). See 10 

Del. C. § 3104(c).

18 Id.

19 Id. (citations omitted).

20 International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

21 Aeroglobal Capital Mgmt., LLC v. Cirrus Indus., Inc., 2003 WL 77007, at *4 (Del. Super. Jan. 

6, 2003).
9

When reviewing a motion to dismiss,22 the Court must view the record in a 

light most favorable to the nonmoving party.23 The allegations of the complaint 

are assumed to be true, and all reasonable inferences must be construed most 

strongly in favor of the plaintiff.24 Additionally, the Court is not limited to the 

pleadings and may consider affidavits, briefs, and the results of discovery.25 

When, as here, such discovery is complete, “the plaintiff must allege specific facts 

supporting its position” that the nonresident defendant is subject to the court's 

personal jurisdiction.26 If the plaintiff cannot demonstrate that the court has 

jurisdiction over the defendant based on the two-prong analysis, the court will 

dismiss the action against the moving nonresident party for lack of personal 

jurisdiction.27

Discussion

I. Personal Jurisdiction

Personal jurisdiction under the Delaware’s long arm statute, 10 Del. C. § 

3104(c), is either specific or general.28 Specific jurisdiction turns on the nexus 

 22 See Del. Super. Ct. R. 12(b)(2).

23 Aeroglobal Capital Mgmt., 2003 WL 77007, at *3.

24 Id.

25 Hartsel v. Vanguard Group, Inc., 2011 WL 2421003, *7 (Del. Ch. Jun. 15. 2011) aff'd, 38 

A.3d 1254 (Del. 2012) cert. denied, 133 S. Ct. 32 (2012).

26 See e.g., Sprint Nextel Corp. v. iPCS, Inc., 2008 WL 2737409 (Del. Ch. Jul. 14, 2008). 27 Fischer v. Hilton, 549 F.Supp. 389, 392 (D. Del. 1982).

28 Aeroglobal Capital Mgmt., 2003 WL 77007, at *4.
10

between the nonresident defendant's Delaware contact and the cause of action,29

and may be found where the plaintiff's claims arise out of the defendant's acts or 

omissions within the State.30 General jurisdiction, on the other hand, provides the 

court with jurisdiction over a nonresident defendant regardless of whether there is 

a nexus between the claim and the defendant's Delaware contacts with the forum 

state.

31 Instead, general jurisdiction is based on a persistent course of conduct 

through which the nonresident defendant creates a general presence in Delaware.32 

In this case, the Court cannot properly exercise specific personal jurisdiction 

over Kongsberg Holding.33 Kongsberg Holding entered into a Purchase 

Agreement and two Supply Agreements with Teleflex in August of 2007.34 It is 

well settled law that “a contract between a Delaware corporation and a nonresident 

to ... transact business outside Delaware, which has been negotiated without any 

contacts with this State, cannot alone serve as a basis for personal jurisdiction over 

the nonresident for actions arising out of that contract.”35 It is also well established 

 29 See LaNuova, 513 A.2d 764.

30 Aeroglobal Capital Mgmt., 2003 WL 77007, at *4. See 10 Del. C. §§ 3104(c)(1)-(3).

31 LaNuova, 513 A.2d 764. See 10 Del. C. § 3104(c)(4).

32 Id.

33 See 10 Del. C. §§ 3104(c)(1)-(3).

34 See Kongsberg Automotive Holding, ASA’s Answers to Plaintiff’s Second Set of 

Interrogatories, at 3. Importantly, neither party to this motion asserts otherwise. Also in August 

of 2007, Kongsberg Holding entered an agreement with E.I. Nemours & Co., which contained a 

Delaware choice of law provision. Again, neither party here asserts that the business 

transactions subject to this agreement took place within the State.

35 Newspan, Inc. v. Hearthstone Funding Corp., 1994 WL 198721, *6 (Del. Ch. May 10, 

1994); see Abajian v. Kennedy, 1992 WL 8794, *10 (Del. Ch. Jan. 17, 1992) (“It is well 

established law that merely contracting with an entity that is incorporated within a forum state 
11

that a choice of Delaware law provision in a contract is not, of itself, a sufficient 

transaction of business in the State to confer jurisdiction under § 3104(c)(1).36 

Though Teleflex is a Delaware corporation and all three agreements contained 

Delaware choice of law and venue provisions, the business transactions contained 

in the agreements took place outside of Delaware. Moreover, Plaintiff and 

Kongsberg Holding are nonresidents, and Plaintiff’s alleged injury occurred 

outside of this State. Thus, Kongsberg Holding merely entering three contracts 

with a Delaware corporation, which contain Delaware choice of law provisions, 

without more, is not sufficient to establish specific jurisdiction over Kongsberg

Holding. 

Nor can the Court properly exercise general personal jurisdiction over 

Kongsberg Holding.37 “When a state exercises personal jurisdiction over a 

defendant in a suit not arising out of or related to the defendant's contact with the 

forum, the state has been said to be exercising ‘general jurisdiction’ over the 

defendant.”38 In asserting such jurisdiction, the Sears court opined that “[i]n order 

 

does not provide necessary connections between the contract and the forum to support a finding 

of jurisdiction.”).

36 Intellimark, Inc. v. Rowe, 2005 WL 2739500, *2-3 (Del. Super. Oct. 24, 2005) (holding that 

the nonresident defendants' signatures on a promissory note, which contained a Delaware choice 

of law provision, were not a sufficient transaction of business in this State to confer 

jurisdiction); see also Summit Investors II, L.P. v. Sechrist Indus., Inc., 2002 WL 31260989, *4 

(Del. Ch. Sept. 20, 2002) (holding that a Delaware choice of law provision is insufficient to 

satisfy the Constitutional minimum contacts test).

37 See 10 Del. C. § 3104(c)(4).

38 Sears Roebuck & Co. v. Sears plc, et al., 744 F.Supp. 1289, 1304 (D. Del. 1990).
12

to assert general jurisdiction, the defendant's activities in the forum must be 

continuous and substantial.”39 Based on the additional discovery on this 

jurisdictional issue and parties’ submissions, the Court finds an absence of any 

contacts between Kongsberg Holding and Delaware that are regular, persistent, or 

the source of substantial revenue.40 

Moreover, the Court does not find exercising general jurisdiction over 

Kongsberg Holding appropriate based on its status as the parent corporation to 

Defendant Kongsberg. Personal jurisdiction over a foreign holding company may 

not be exercised merely because of that corporation’s relationship with an

allegedly at-fault subsidiary, even if the subsidiary is itself a Delaware 

corporation.41 In this case, Defendant Kongsberg Holding is a non-operational 

Norwegian holding company. Defendant Kongsberg is Kongsberg Holding’s 

subsidiary that Plaintiff has alleged is at fault in this case.42 However, Defendant 

 39 Id. See Plumb v. Cottle, 492 F.Supp. 1330, 1334 (D. Del. 1980) (The court, in applying 

subsection (c)(4) to the nonresident manufacturer of an allegedly defective lighting protection 

system, stated because the corporation sold no lighting systems in Delaware, maintained no 

branch offices in Delaware and did not have a license to do business in Delaware, it could not be 

subject to suit in Delaware). 

40 See McElhaney v. Kelly-Moore Paint Co., 2013 WL 4829283, *4 (Del. Super. Aug. 14, 2013). 

See Declaration of Kongsberg Holding’s Chief Financial Officer, Trond Stabekk.

41 See Freres v. SPI Pharma, Inc., 629 F.Supp.2d 374, 385 (D. Del. 2009) (finding court lacked 

personal jurisdiction over foreign parent of allegedly infringing subsidiary in patent case); 

Monsanto Co. v. Syngenta Seeds, Inc., 443 F.Supp.2d 644-45 (D. Del. 2006) (finding court 

lacked personal jurisdiction over foreign parent in antitrust case). 

42 As a non-operational holding corporation, Kongsberg Holding is merely the parent corporation 

of Defendant Kongsberg, which Plaintiff alleges designed, manufactured and sold component 

parts of the model motorcycle that allegedly injured Plaintiff. See Declaration of Kongsberg 

Holding’s Chief Financial Officer, Trond Stabekk, at ¶¶ 18-20.
13

Kongsberg is not a Delaware corporation, but rather a Canadian corporation 

without personal jurisdiction contacts of its own that would support the exercise of 

general personal jurisdiction over Kongsberg Holding. More importantly, this 

Court has already granted Defendant Kongsberg’s motion to dismiss for lack of 

personal jurisdiction.43 

Therefore, Plaintiff has failed to meet the standards of Delaware’s long-arm 

statute to establish that this Court may exercise general personal jurisdiction over 

Defendant Kongsberg Holding. Furthermore, the Court finds no evidence that 

would satisfy the Constitutional minimum contacts requirement because 

Kongsberg Holding does not have “continuous and systematic” contacts with 

Delaware so as to render Kongsberg Holding “at home” in this State.44

II. Consent to Personal Jurisdiction

The Court has found that it cannot properly exercise personal jurisdiction 

over Kongsberg Holding. As such, the only remaining issue for the Court to 

decide is whether Kongsberg Holding has consented or waived its challenge to 

Delaware jurisdiction as a result of the Earlier Delaware Action with Defendant 

Teleflex in the District Court of Delaware. To resolve this issue, the Court must 

 43See Order dated March 24, 2015. 

44 Daimler AG v. Bauman, 134 S.Ct. 746, 761 (2014). See Declaration of Kongsberg Holding’s 

Chief Financial Officer, Trond Stabekk.
14

determine whether the Present Action and Earlier Delaware Action are sufficiently

related to constitute Kongsberg Holding’s consent to jurisdiction in this State. 

Personal jurisdiction over a party in one action does not automatically confer 

personal jurisdiction over that party in all future actions. However, “[b]ecause the 

defense of lack of personal jurisdiction is a personal right, ‘it may be obviated by 

consent or otherwise waived.’”45 Whether a party has consented or waived its 

challenge to personal jurisdiction is decided on a case-by-case basis.46 “[C]onsent 

has been recognized as a basis for the exercise of general personal jurisdiction. In 

fact, a variety of legal arrangements have been taken to represent express or 

implied consent to the personal jurisdiction of the Court.”47 For example, parties 

 45 Sprint Nextel Corp., 2008 WL 2737409, at *6 

As the court noted in General Contracting, it is possible to attempt fine 

distinctions between “waiver” and “consent” in terms of personal jurisdiction. It 

has been argued, for example, that waiver arises from actions taken within a suit 

and consent stems from conduct extrinsic to the suit proper. 940 F.2d at 22-23 

(extensive internal citations omitted). The court also noted that another view on 

the distinction between consent and waiver, “turns on whether the manifesting 

conduct took place prior or subsequent to the suit's institution. Such a view 

recognizes that consent ordinarily consists of ex ante conduct while waiver 

ordinarily occurs in the form of actions taken ex post.” Id. at 23 n. 3. Here, the 

issue is whether Horizon and Bright effectively consented to this Court's personal 

jurisdiction over them in this case based on their conduct in connection with the 

Earlier Delaware Action.

As in Sprint Nextel, the issue here is whether Kongsberg Holding effectively consented to this 

Court’s personal jurisdiction over it in this case, based on its filing the Earlier Delaware Action. 

46 See Wyrough & Loser, Inc. v. Pelmor Labs., Inc., 376 F.2d 543, 547 (3d Cir. 1967).

47 Sternberg v. O'Neil, 550 A.2d 1105, 1109 (Del. 1988) (quoting Ins. Corp. of Ir. v. Compagnie 

des Bauxites de Guinee, 456 U.S. 694, 703 (1982)); see also Gen. Contracting & Trading Co. v. 

Interpole, Inc., 940 F.2d 20, 22 (1st Cir. 1991).
15

may explicitly “submit to a given court’s jurisdiction by contractual consent,”48 or 

“stipulate to personal jurisdiction.”49

Alternatively, “a court may assert personal jurisdiction over a party on the 

ground that the party consented to jurisdiction by submitting itself to a court's 

jurisdiction by instituting another, related suit.”50 To find this implicit consent to 

jurisdiction, the court must look for a “logical relationship” between the previous 

and current suits.51 To do this, the court should consider whether the previous and 

current actions involve common issues of fact and law, which are supported or 

refuted by some overlapping evidence.52 For example, similarity of the parties to 

the previous and current actions is one factor in determining whether the two 

actions are sufficiently related. However, a similarity of parties between separate 

actions brought in Delaware is not, by itself, sufficient to establish that a party to 

the first action has consented to personal jurisdiction in the present action.53 

In this case, the Court must determine whether the Present Action and the 

Earlier Delaware Action are sufficiently related to show that Defendant Kongsberg 

 48 Sternberg, 550 A.2d at 1109 n. 4 (citing Nat'l Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311 

(1964)).

49 Id. (citing Petrowski v. Hawkeye-Sec. Ins. Co., 350 U.S. 495 (1956)).

50 Foster Wheeler Energy Co. v. Metallgesellschaft AG, 1993 WL 669447 (D. Del. Jan. 4, 

1993) (citing Gen. Contracting, 940 F.2d at 22).

51 Foster Wheeler Energy Corp., 1993 WL 669447, at *4.

52 Id.

53 Sprint Nextel Corp., 2008 WL 2737409, a*7 (where the fact that both actions in question 

involved several of the same parties was not sufficient for the Chancery Court to find that the 

previous present actions were sufficiently related). 
16

Holding has consented to the Court’s jurisdiction over it in this case. The legal 

claim involved in the Present Action is a products liability personal injury lawsuit, 

based on strict liability and negligence. The legal claim involved in the Earlier 

Delaware Action is multiple counts of breach of contract.54 Defendant Kongsberg 

Holding filed the Earlier Delaware Action in 2009 against Defendant Teleflex.55 

Neither Plaintiff nor any of the other defendants in this case was a party to the 

Earlier Delaware Action.

As emphasized by the relevant case law, whether the previous and current 

actions arise from the same underlying transaction or transactions is the primary 

consideration for determining if the separate legal actions are sufficiently related

for the court to confer jurisdiction over the nonresident defendant. In Foster 

Wheeler Energy Co. v. Metallgesellschaft AG, the court found that it had personal 

 54 The original Complaint filed by Kongsberg Holding against Teleflex in the Earlier Delaware 

Action is the only document in the record before the Court upon which the Court can use to 

assess the relationship between the two actions. See supra, n.3. Plaintiff also submitted other 

Exhibits, the Kongsberg Holding filings from the Earlier Delaware Action, to support his 

argument that Kongsberg Holding filing “its related lawsuit concerning the defective Can-Am 

Spyder in Delaware” “operate[s] as consent to...Delaware’s jurisdiction over matters concerning 

the Spyder’s DPS.” (D.I. 74 at 4, Exhibits C & D). However, neither document adequately

articulates a specific claim brought by Kongsberg Holding against Teleflex, concerning the CanAm Spyder involved here. Moreover, Plaintiff had the opportunity to provide the Court with a 

Kongsberg Holding amended complaint from the Earlier Delaware Action that identified a legal 

claim arising from a defective Can-Am Spyder, as Plaintiff asserts here, because the parties were 

given additional time to conduct the necessary discovery on this jurisdictional issue. For these 

reasons, and those discussed supra, the Court will only consider Kongsberg Holding’s original 

Complaint from the Earlier Delaware Action in its analysis of the relationship between the two 

actions, as the original Complaint is the only document from the Earlier Delaware Action before 

the Court that identifies the legal claims brought by Kongsberg Holding against Teleflex, and the 

underlying transaction(s) from which those claims arose. 

55 See Kongsberg Automotive Holding ASA’s Complaint, C.A. No. 09-414-GMS (D. Del. Jun. 

5, 2009).
17

jurisdiction over the defendant as to the plaintiff’s claim against it for patent 

infringement, when the defendant had procured the dismissal of that exact claim as 

a counterclaim in a parallel suit by the defendant against the plaintiff.

56 In General 

Contracting & Trading Co. v. Interpole, Inc., the court found that a party had 

consented to personal jurisdiction in an action involving the same underlying 

transaction as an earlier action in which it had sued the plaintiff.

57 In Attorneys 

Liab. Prot. Soc'y, Inc. v. Eisenhofer,

58 the court found that the defendant implicitly 

consented to the court's personal jurisdiction when he filed a federal class action in 

Delaware because the second suit was “spawned by” and “closely related to” the 

federal class action.59 Although the plaintiff in Attorneys Liab. Prot. Soc'y, Inc.

was not named in the defendant’s previous federal class action, both suits were, in 

part, based on the same underlying transaction.60 While the Court finds the case 

law instructive on the focus of the Court’s analysis, it finds these cases factually

distinguishable because, here, there is no logical relationship between the 

underlying transactions giving rise to the Earlier Delaware Action and the Present 

Action.

 56 See Foster Wheeler, 1993 WL 669447, at *2-3, 11-12. 

57 See Gen. Contracting, 940 F.2d at 10, 22-24.

58 2011 WL 2089718 (Del. Super. Apr. 29, 2011).

59 Id. 60 Id. (“When [the defendant] sued the law firm for legal malpractice, he could have anticipated 

litigation in Delaware between the law firm and its carrier over coverage of his claim. Having 

come to Delaware to sue the law firm, [the defendant] impliedly agreed to participate in litigation 

here over insurance potentially covering his damages.”).
18

For this same reason, the Court also finds Furnari v. Wallpang, Inc.,

61 the 

case used by Plaintiff to support his consent argument, distinguishable. Plaintiff 

uses Furnari in support of his argument that Kongsberg Holding has consented to 

jurisdiction in this State because the Furnari court held that the litigant there had 

waived his jurisdictional challenge against the plaintiff after he filed suit on a 

related matter in Delaware Court of Chancery.62 While the court in Furnari does 

not discuss the factors it considered in reaching its conclusion that the suits were 

related, the facts of that case establish that the various actions discussed by the 

Furnari court arose out of the same underlying transaction between the parties.63 

In other words, though the legal claims brought by each party to the transaction 

may have varied, each suit was filed by a party to and resulted from the same 

underlying transaction.64

Instead, the Court finds Sprint Nextel Corp. v. iPCS, Inc. more factually 

similar to this case. In Sprint Nextel, the court found that 

[D]espite some significant overlap, the facts underlying the Earlier 

Delaware Action differ from the facts underlying this litigation. The 

Earlier Delaware Action involved the effects of the Sprint-Nextel 

merger on the Sprint PCS affiliates as to Sprint's operation of Nextel's 

iDEN network in purported violation of the exclusivity provisions in 

the Management Agreements. Although this action involves many of 

the same parties and similar, if not identical, contractual provisions, 

 61 2014 WL 1678419 (Del. Super. Apr. 16, 2014). 

62 Id. at *10. 

63 Id. at *1-3.

64 See Furnari, 2014 WL 1678419.
19

the underlying Clearwire Transaction is sufficiently different from and 

independent of the Nextel transaction that I cannot find Horizon and 

Bright's prior decision to bring the Earlier Delaware Action here also 

reflects their consent to being sued in Delaware on the current dispute. 

This is not, for example, a situation where Horizon and Bright had 

some role in bringing about the Clearwire Transaction or taking some 

action that precipitated the Current Delaware Action. Thus, I find that 

neither Bright nor Horizon has implicitly or explicitly consented to 

personal jurisdiction in this action regarding Sprint's Clearwire 

Transaction.65

The underlying transaction for the Present Action is the alleged personal injury that 

Plaintiff sustained while test driving a 2012 Can-Am Spyder in South Dakota. 

Whereas the underlying transactions for the Earlier Delaware Action are the 2007 

Purchase and Supply Agreements that Kongsberg Holding and Teleflex entered 

into together, and the breaches of which are specifically described in Kongsberg 

Holding’s Complaint against Teleflex. Generally, Kongsberg Holding alleged that, 

under the Purchase Agreement, Teleflex agreed to indemnify Kongsberg Holding 

for losses arising or resulting from any breach of any covenant or obligation set 

forth in the agreement, which consists of the Purchase Agreement and its 

appendices, exhibits, and disclose letters.66 

More specifically, Count I of the Complaint alleged that Teleflex breached 

its obligations under the cancellation provision of the Supply Agreement by the 

 65 Sprint Nextel, 2008 WL 2737409, at *7.

66 Kongsberg Automotive Holding ASA’s Complaint, C.A. No. 09-414-GMS, at ¶¶ 8-9.
20

way Teleflex cancelled a particular order.67 Count II of the Complaint alleged that 

Teleflex breached the Supply Agreement by refusing to remedy alleged 

misrepresentations that Teleflex knowingly made to Kongsberg Holding regarding 

financial information when the parties were entering the Supply Agreement.68

Count III of the Complaint alleged that Teleflex breached its contractual obligation 

to file certain tax returns in the State of Texas and to pay all applicable taxes for 

the filing periods April 2001 through December 2004.

69 

This comparison of the two actions shows that they are not sufficiently 

related to demonstrate that Defendant Kongsberg Holding implicitly consented to 

this Court’s jurisdiction over it in the Present Action when it filed the Earlier 

Delaware Action in 2009. In Sprint Nextel, despite there being similar or identical 

legal claims and contractual provisions at issue in both lawsuits, the court found 

that the two lawsuits were not sufficiently related to enable the court to confer 

jurisdiction over the moving defendant.70 Here, the legal claims in each action –

breach of contract and personal injury – are entirely different. While the Earlier 

Delaware Action does involve two of the defendants that are parties to the Present 

Action, the remaining five parties – Plaintiff and the four other defendants – in the 

Present Action were not involved there. Nor would this minor similarity between 

 67 Id. at ¶¶ 17-32.

68 Id. at ¶¶ 33-41. 

69 Id. at ¶¶ 42-51.

70Sprint Nextel, 2008 WL 2737409, at *7. 
21

the parties of both actions be sufficient to find the Present Action and Earlier 

Delaware Action related.71

Critically though, the underlying transactions from which the claims in both 

actions arose are different.

72 Similarly, the dispositive factor in the Sprint Nextel

court’s analysis was that, despite the similarity of parties and contractual 

provisions, the underlying facts of each action were sufficiently different from and 

independent of the other because the previous lawsuit was based on the Clearwire 

Transaction and the current lawsuit in that case was based on the Nextel 

Transaction.

73 The Court finds the differences underlying the two actions here 

even greater than those between the two lawsuits in Sprint Nextel. The underlying 

transactions from which the Earlier Delaware Action arose were the 2007 Purchase 

and Supply Agreements between Kongsberg Holding and Teleflex, and Teleflex’s 

alleged breaches of those agreements through an improper cancellation, improper 

pricing, and failure to file and pay State of Texas taxes. There is no logical 

relationship between these underlying facts and transactions, and the underlying 

transaction from which the Present Action arose: Plaintiff’s alleged personal injury 

sustained while test driving a 2012 Can-Am Spyder in South Dakota. 

Furthermore, the Earlier Delaware Action does not involve the same model year 

 71 See Sprint Nextel, 2008 WL 2737409.

72 Id.

73 Id.
22

Can-Am Spyder involved in the Present Action.

74 Therefore, the Court finds that 

the two actions are not sufficiently related for Defendant Kongsberg Holding’s 

decision to bring suit against Teleflex in Delaware District Court to reflect its 

consent to be sued by Plaintiff in Delaware on the Present Action.75 Accordingly, 

this Court cannot properly exercise personal jurisdiction over Defendant 

Kongsberg Holding in this case. 

Conclusion

For the foregoing reasons, Defendant Kongsberg Holding’s Motion to 

Dismiss for lack of jurisdiction is GRANTED.

IT IS SO ORDERED.

/s/Calvin L. Scott 

Judge Calvin L. Scott, Jr.

 74 D.I. 75 at ¶ 2; Kongsberg Holding Reply Br. at ¶ 8. It does not appear, based on the parties’ 

submissions, that Plaintiff disputes that the model year Can-Am Spyder in the Earlier Delaware 

Action is not the same as that involved in the Present Action. 

75 See Sprint Nextel, 2008 WL 2737409, at *7.