## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 7 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BELL HELICOPTER TEXTRON, INC., Plaintiff-Appellant,

v. No. 03-4115 HELIQWEST INTERNATIONAL, LTD.; COPTER LEASE, LLC,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Utah (D.C. NO. 2:01-CV-954-ST)

Phillip S. Ferguson, Christensen & Jensen, PC., Sal t Lake City, Utah, for the Plaintiff-Appellant. Stephen R. Stegich, Condon & Forsyth, New York, NewYork (Carol Clawson, Clawson Burgess, Salt Lake City, Utah with him on t he briefs) for the Defendants-Appellees.

Before HENRY , BRISCOE , and McCONNELL , Circuit Judges.

McCONNELL , Circuit Judge.-2-

On January 9, 2000 the main rotor mast on a Bell Mo del 212 Helicopter fractured in-flight and separated from the blade as sembly and main rotor hub. The helicopter, which was conducting heli-logging o perations near Mt. Pleasant, Utah, plummeted immediately to the ground and was c ompletely destroyed. The thicket of manufacturers, owners, lessors, lessees, corporate parents, subsidiaries, and insurers with interests in the subject helicopt er led to litigation both in Utah, the site of the crash, and in Alberta, Canada where some of the relevant parties are citizens. Given the large number of actors wit h ties to the helicopter it is unsurprising that there are questions about whetherthe Utah long-arm statute permits personal jurisdiction over Copter Lease, LL C, (“Copter Lease”) a party to the Utah action. Whether there is personal jurisdi ction over Copter Lease in Utah determines, in large measure, the propriety of juri sdiction over appellant Bell Helicopter’s declaratory judgment action. Because we find that Copter Lease is not subject to personal jurisdiction in Utah we als o find that the district court did not abuse its discretion in declining jurisdiction over the declaratory judgment action. Accordingly, we AFFIRM the judgment of the district court.
BACKGROUND Appellant Bell Helicopter manufactured the Bell Mod el 212 helicopter in Fort Worth, Texas in October, 1974 for the PeruvianAir Force. The helicopter was destroyed in service in 1976. Max Sonnenberg o f New Mexico obtained the-3-

salvage and rebuilt the helicopter. The rotor mastthat led to the accident near Mt. Pleasant, which was not an original part, was m anufactured by Textool, Inc., of Houston, Texas, sometime prior to 1978. It was installed on the helicopter in 1993. Ownership of the helicopter changed hands mu ltiple times. Non-party Eagle Copters, a company incorporated under the law s of Alberta, Canada, purchased the helicopter at a receivership sale in Canada sometime in 1993. The company intended to use or lease it for timber salv age operations on national forest land in the United States. The United State s Forest Service requires its contractors to have a U.S. registration number. In February, 1999, Eagle Copters transferred an interest in the helicopter to its co rporate affiliate Copter Lease, a New Mexico corporation and a defendant in this acti on. Copter Lease then acquired FAA registration No. N212HQ. While the ex act nature of the relationship between Copter Lease and Eagle Copters is unclear, the district court found that Copter Lease owned the helicopter “in tr ust for the benefit of” Eagle Copters. Op. 2. Copter Lease took possession in Fe bruary, 1999. Copter Lease then leased the helicopter to defenda nt HeliQwest International (“HeliQwest”), an unaffiliated company incorporated under the laws of Washington State. The “directing mind” of HeliQ west is non-party HeliQwest Aviation, Inc., a company incorporated under the laws of Alberta, Canada. An affidavit by Copter Lease’s sole employee states th at Copter Lease and HeliQwest-4-

negotiated the lease in Canada, Aplt. App. 29 ¶ 7. The lease contains an Alberta choice of law provision and forum selection clause. Op. 3. Copter Lease agreed to deliver the helicopter to HeliQwest at Calgary I nternational Airport, and HeliQwest agreed to return the helicopter to CopterLease at the same place, when the lease terminated. Id. The accident occurred while the helicopter was l eased to HeliQwest. On January 9, 2000, the helicopter crashed near Mt. Pleasant, Utah, and was completely destroyed. On or about November 16, 2001, Eagle Copters, HeliQwest Aviation, HeliQwest, and Copter Lease fil ed an action in Alberta against Bell Helicopter and two of its subsidiaries , based on theories of negligence and breach of contract. They sought dam ages for the loss of the helicopter and other damages. On or about December3, 2001, Bell Helicopter filed a complaint in the U.S. District Court for th e District of Utah against Copter Lease and HeliQwest, seeking a declaratory judgmentconcerning the applicability of the General Aviation Revitalization Act (“GARA”) , 49 U.S.C. § 40101, to the accident. Copter Lease moved to dismiss for lack o f personal jurisdiction and HeliQwest moved to dismiss for lack of subject matt er jurisdiction. The district court granted Copter Lease’s motion to dismiss. The court found that because Copter Lease did not transact bu siness in Utah, did not contract to supply goods or services in Utah, and h ad no office or officers in-5-

Utah, there were not sufficient minimum contacts w ith Utah to come within the reach of the Utah long-arm statute. Op. 8. As a c onsequence, the court held that it would violate federal due process to exercise pe rsonal jurisdiction over Copter Lease. Op. 9. The district court treated HeliQwes t’s motion to dismiss for lack of subject matter jurisdiction as a request to decl ine jurisdiction over Bell Helicopter’s request for a declaratory judgment. T he court applied the test for deciding whether to hear declaratory actions developed in State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 983 (10th Cir. 1994). The district court found that the four factors relevant in this case weighed in f avor of HeliQwest, and accordingly declined to exercise jurisdiction over the declaratory judgment. Op. 12. Bell Helicopter filed a timely notice of appea l on both orders.
ANALYSIS 1. Personal Jurisdiction over Copter Lease. To satisfy the constitutional requirement of due pr ocess there must be “minimum contacts” between the defendant and the forum state. World-Wide Volkswagen Co. v. Woodson , 444 U.S. 286, 291 (1980) (quoting Int’l Shoe Co. v. Washington , 326 U.S. 310, 316 (1945). In the context of prod ucts liability the minimum contacts requirement turns, in some measure , on foreseeability. The Supreme Court has explained that “the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum-6-

State [but] that the defendant’s conduct and connec tion with the forum State are such that he should reasonably anticipate being haled into court there.” Id. at 297. The burden of establishing personal jurisdict ion over the defendant is on the plaintiff. Kuenzle v. HTM Sport Und- Freizeitgeräte AG , 102 F.3d 453, 456 (10th Cir. 1996) (quoting 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)). When the evidence presented on the motion to dismiss con sists of affidavits and other written materials the plaintiff need only make a prima facie showing. Id. (quoting Behagen , 744 F.2d at 733). The district court must resolv e all factual disputes in favor of the plaintiff. Far West Capital, Inc. v. Towne , 46 F.3d 1071, 1075 (10th Cir. 1995). This Court reviews the district court’s ruling on personal jurisdiction de novo

. Id. The “minimum contacts” standard may be met in eithe r of two ways. When the defendant has “continuous and systematic genera l business contacts” with the forum state, courts in that state may exercise general jurisdiction over the defendant. Helicopteros Nacionales de Colombia, S.A., v. Hall , 466 U.S. 408, 414-15 (1984); Kuenzle , 102 F.3d at 455. When the “defendant has ‘purpos ely directed’ his activities at residents of the forum, ” courts in that state may exercise specific jurisdiction in cases that “‘arise out of or relate to’ those a ctivities.” Burger King v. Rudzewicz , 471 U.S. 462, 472-73 (1985) (citations omitted);1 A finding of minimum contacts with the forum is nec essary, but is not

sufficient for the exercise of personal jurisdictio n. A district court must also consider whether personal jurisdiction is reasonabl e in light of the circumstances surrounding the case. Burger King , 471 U.S. at 476; Intercon, Inc. v. Bell Atlantic Internet Solutions, Inc. , 205 F.3d 1244, 1247 (10th Cir. 2000). Courts consider the following factors to decide whether ex ercise of jurisdiction is reasonable: (1) the burden on the defendant; (2) th e forum state’s interest in resolving the dispute; (3) the plaintiff’s interestin receiving convenient and effective relief; (4) the interstate judicial syste m’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive policies. Burger King , 471 U.S. at 477; Intercon, Inc. , 205 F.3d at 1249.

-7- Kuenzle , 102 F.3d at 455. In this case, Plaintiff Bell He licopter asserts specific, not general, jurisdiction over Copter Lease. To support specific jurisdiction, there must be “so me act by which the defendant purposefully avails itself of the privile ge of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla , 357 U.S. 235, 253 (1958) (citation omitted); see also Fidelity and Cas. Co. of N. Y. v. Phila. Resins Corp. , 766 F.2d 440, 445 (10th Cir. 1985). 1 This requirement of “purposeful availment” for purp oses of specific jurisdiction precludes personal jurisdiction as the result of “r andom, fortuitous, or attenuated
contacts.” Burger King , 471 U.S. at 475 (citations and internal quotation marks omitted). The Utah long-arm statute authorizes the exercise o f specific jurisdiction

over:-8- Any person . . . whether or not a citizen or reside nt of this state, who in person or through an agent does any of the following enumerated acts, submits himself . . . to the jurisdiction of the courts of this state as to any claim arising out of or related to: ...(2) contracting to supply services or goods in this state. Utah Code Ann. § 78-27-24. Utah law also provides that the specific jurisdiction statute “should be applied so as to assert jurisdic tion over nonresident defendants to the fullest extent permitted by the due process clause of the Fourteenth Amendment to the United States Constitution.” Id. § 78-27-22. Generally speaking, specific jurisdiction must be b ased on actions by the defendant and not on events that are the result of unilateral actions taken by someone else. OMI Holdings Inc. v. Royal Ins. Co. of Canada , 149 F.3d 1086, 1092 (10th Cir. 1998). In this case, it was HeliQw est, not defendant Copter Lease, which brought the helicopter into the State of Utah. So the question is whether Copter Lease’s actions in leasing the helic opter to HeliQwest for use in Utah constitutes “purposeful availment” of the priv ilege of conducting business in Utah. Copter Lease is a New Mexico corporation with no offices, employees, or operations in Utah; it leased the helicopter to HeliQwest, a Washington corporation, in a transaction taking place in, and subject to the laws of, Alberta, Canada. Aplt. App. 29 ¶ 6. The helicopter was del ivered to HeliQwest in Alberta and was to be returned there at the end of the lease. On the basis of these factors, the district court concluded that itlacked personal jurisdiction.-9-

Bell Helicopter contends, however, that the distric t court overlooked several facts supporting the inference that Copter Lease solicited business in Utah. This Court has held that even when another p arty acts unilaterally, “[s]olicitation [by the defendant] is some evidence suggesting purposeful availment.” Far West , 46 F.3d at 1076. All parties agree that HeliQwes t now maintains a principal place of business in Provo, U tah. Bell Helicopter contends that because HeliQwest has had this facility in Pro vo for an “unknown period,” it is possible HeliQwest had its principal place of bu siness in Utah at the time of the helicopter leasing, and thus that Copter Lease’ s actions in obtaining business with HeliQwest constituted solicitation for provisi on of goods or services in Utah. Aplt. Br. 13. One piece of evidence Bell Helicopter offers on thi s point is a printout from HeliQwest’s website listing Provo as the site of a facility. Aplt. App. 93. Because this printout was made roughly two years af ter the accident, however, it has little bearing on the state of affairs at the t ime of the lease or the accident. Bell Helicopter also presents evidence that HeliQwe st registered to do business in Utah on March 16, 2000. Aplt. App. 233-34. Rat her than supporting its case, however, this evidence casts doubt on the notion th at HeliQwest had a principal place of business in Utah at the time of the lease or at the time of the accident.-10-

It would be odd for HeliQwest to maintain a princip al place of business in a state where it was not even registered to engage in comme rce. At best, construing the dispute over timing in the manner most generous to Bell Helicopter, we might infer that HeliQwest had a business presence, but n ot a principal one, in Utah at the time of the lease. Even if the lessee operated a facility in Utah at t he time of the lease, that would not be sufficient to create personal jurisdiction over the lessor. As WorldWide Volkswagen emphasizes, the mere foreseeability that a custome r will unilaterally move a chattel into a given state does not create jurisdiction over the vendor of the chattel. World-Wide Volkswagen , 444 U.S. at 298; cf

. Far West , 46 F.3d at 1076 ( holding that the unilateral decision by a third party to place an escrow account in Utah was not sufficient to create jurisdiction over the defendant). At best, Copter Lease could foresee th at because HeliQwest had a facility in Utah it might, at some point, take the subject helicopter to Utah. This mere possibility, even if true, does not suggest th at Copter Lease purposefully availed itself of the protections of Utah laws. Phila. Resins Corp. , 766 F.2d at 446-47 (finding that knowledge that a product wouldbe used in the Rocky Mountain region does not create minimum contacts in Utah). Bell Helicopter also argues that HeliQwest’s effort s to qualify as an official supplier for the 2002 Winter Olympics in S alt Lake City bear on-11-

HeliQwest’s personal jurisdiction status. Specific ally, Bell Helicopter claims that “[i]t stretches credulity to think that CopterLease did not know of HeliQwests’s [Olympic] intentions... HeliQwest’s anticipated commitment to the Olympics would certainly have been a factor in any meaningful negotiations over the terms of the lease.” Aplt Br. 13-14. This asse rtion, to put it mildly, overstates the claim. It hardly stretches credulity to imagine that during lease negotiations in Canada between a New Mexico corporation and a Washington corporation for delivery of a helicopter in Calgary the topic of becoming an Olympic supplier in another state two years later w ould not surface. Even if HeliQwest did mention its Olympic intentions it is difficult to see how this knowledge means that Copter Lease purposefully avai led itself of Utah’s legal protections when it leased equipment to HeliQwest f or other purposes. Bell Helicopter’s strongest claim is based on evide nce that Copter Lease was hoping to lease the subject helicopter to an en tity that could secure contracts with the United States Forest Service. Depending o n Copter Lease’s specific actions, it is possible that this behavior could qu alify as the solicitation of Utah business. However, we held in Far West that “remote” solicitation is not sufficient to create personal jurisdiction. Far West , 46 F.3d at 1076. In Far
West the solicitation of business was remote in a tempo ral sense. The defendant offered to explore potential agreements involving t he forum state with Far West-12-

during the first stages of negotiation. Id. The final agreement, however, did not take hold until three years after the solicitations of the defendant. Id. We held that the solicitations of the defendant were too di stant from the resulting controversy to support a finding that the defendantpurposefully availed herself of the protections of the forum state. Id. Bell Helicopter’s claims about any possible solicitations by Copter Lease face similarproblems with remoteness. Bell Helicopter would have us believe that Copter L ease “fully intended the helicopter to operate in the state of Utah.” Aplt. Br. 15. The only support it can muster for this claim are its own assertions of this point in filings in the court below. The only evidence regarding Copter Le ase’s intentions is the affidavit of Copter Lease’s sole employee stating t hat Copter Lease was formed, in part, to enable Eagle Copters to obtain contract s with the US Forest Service. Aplt. App. 29, ¶ 6. The record does not contain any evidence of an effort to solicit a Utah lessee, or indeed, any evidence of a ny type of solicitation. At most, one can assume that Copter may have encour aged HeliQwest to use the subject helicopter in states, such as Utah, containing national forests. But there are extensive national forests in many of the western states. A general hope that a party will use a product in a general r egion is too remote an aspiration to qualify as purposeful availment in a specific state. Cf. Phila. Resins Corp. , 766 F.2d at 446-47 (1985) (finding that knowledge that a product would-13-

be used in the Rocky Mountain region does not creat e minimum contacts in Utah). Because there is no evidence in the record of any type of solicitation on the part of Copter Lease, let alone solicitation fo r use in Utah, we will not infer that Copter Lease made the targeted solicitation ne cessary for a finding of purposeful availment. As a result, we find that Be ll Helicopter has not made the prima facie showing necessary for personal jurisdic tion. At various points in its briefs Bell Helicopter lam ents its lack of an opportunity to conduct jurisdictional discovery. Aplt Br. 14-15, 17-18, 20, Aplt. Rep. Br. 1. In support of this point Bell Helicopter quotes Budde v. Ling-TemcoVought, Inc. , 511 F.2d 1033, 1035 (10th Cir. 1975), for the pro position that “[w]hen a defendant moves to dismiss for lack of ju risdiction, either party should be allowed discovery on the factual issues raised b y that motion.” Conveniently, Bell Helicopter omits the next sentence in Budde stating, “[t]he trial court, however, is vested with broad discretion and shouldnot be reversed unless discretion is abused.” Id. (citation omitted); see also Pippinger v. Rubin , 129 F.3d 519, 533 (10th Cir. 1997). Bell Helicopter do es not specifically argue that the district court abused its discretion in refusin g Bell Helicopter’s requests and we see no reason to make that finding.2 Appellee contends that it produced the lease for Be ll Helicopter in the

Canadian proceedings. Aple. Br. 21 n. 10. However , for the purposes of this appeal, we proceed under the assumption that Bell H elicopter does not have access to these documents. -14- Bell Helicopter seems particularly dismayed that th e district court did not permit discovery of the lease agreement between Copter Lease and HeliQwest. 2 Aplt. Br. 20. It is possible, though improbable, t hat the terms of the lease might provide some evidence of purposeful availment of th e protection of Utah law. For example, the lease could confine movement of th e helicopter to Utah. However, given that the helicopter saw service thro ughout the Rocky Mountains, Aplt App. 242, 266, it is difficult to imagine how the lease could possibly create personal jurisdiction over Copter Lease in Utah. G iven the very low probability that the lack of discovery affected the outcome of this case we find no abuse of the district court’s discretion here. 2. HeliQwest’s Motion to Dismiss the Declaratory J udgment Action. HeliQwest filed a motion to dismiss Bell Helicopter ’s declaratory judgment action for lack of subject matter jurisdic tion. The district court treated this motion as a request to decline jurisdiction. Applying the five-factor test articulated in State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979 (10th Cir. 1994), the court declined to assume jurisdiction. The Mhoon test inquires:

[1] whether a declaratory action would settle the controversy; [2] whether it would serve a useful pu rpose3 The fourth factor involves cases with concurrent st ate and federal

proceedings. As this case involves an internationa l dispute any federalism concerns are not relevant. -15-

in clarifying the legal relations at issue; [3] whe ther the declaratory remedy is being used merely for the purpose of “procedural fencing” or “to provide an arena fora race to res judicata ”; [4] whether use of a declaratory action would increase friction between our federal and state courts and improperly encroach upon state jurisdiction; and [5] whether there is an alternati ve remedy which is better or more effective. Mhoon , 31 F.3d at 983. The district court found that al l four of the elements relevant to this case 3 were “decidedly answered” in favor of HeliQwest. Op. 10. We review applications of the Mhoon test for abuse of discretion. Id. at 983; United States v. City of Las Cruces , 289 F.3d 1170, 1179 (10th Cir. 2002). In light of our conclusion that the district court lacked personal jurisdiction over Copter Lease, it is not necessary to examine all of the Mhoon factors. The first factor asks whether a declarato ry judgment would settle the controversy. The district court concluded it would not. We agree. Although Bell Helicopter is a party to the Canadian action, HeliQwest is not, having been dismissed. Op. 3. Not being parties to the Utah a ction, none of Bell Helicopter’s adversaries in the Canadian litigation would be bound by a decision of the Utah court. The district court was therefor e correct in observing that any-16-

declaratory judgment rendered in this litigation wo uld not settle the controversy. Op. 11. The judgment of the district court dismissing this action is therefore
AFFIRMED.