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., Salt Lake City, Utah, for the

Plaintiff-Appellant.

Stephen R. Stegich, Condon & Forsyth, New York, New York (Carol Clawson,

Clawson Burgess, Salt Lake City, Utah with him on the briefs) for the

Defendants-Appellees.

Before HENRY , BRISCOE , and McCONNELL , Circuit Judges.

McCONNELL , Circuit Judge.
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On January 9, 2000 the main rotor mast on a Bell Model 212 Helicopter

fractured in-flight and separated from the blade assembly and main rotor hub. 

The helicopter, which was conducting heli-logging operations near Mt. Pleasant,

Utah, plummeted immediately to the ground and was completely destroyed. The

thicket of manufacturers, owners, lessors, lessees, corporate parents, subsidiaries,

and insurers with interests in the subject helicopter 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 with ties to the helicopter it is

unsurprising that there are questions about whether the Utah long-arm statute

permits personal jurisdiction over Copter Lease, LLC, (“Copter Lease”) a party to

the Utah action. Whether there is personal jurisdiction over Copter Lease in Utah

determines, in large measure, the propriety of jurisdiction over appellant Bell

Helicopter’s declaratory judgment action. Because we find that Copter Lease is

not subject to personal jurisdiction in Utah we also 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 Model 212 helicopter in

Fort Worth, Texas in October, 1974 for the Peruvian Air Force. The helicopter

was destroyed in service in 1976. Max Sonnenberg of New Mexico obtained the
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salvage and rebuilt the helicopter. The rotor mast that led to the accident near

Mt. Pleasant, which was not an original part, was manufactured by Textool, Inc.,

of Houston, Texas, sometime prior to 1978. It was installed on the helicopter in

1993. Ownership of the helicopter changed hands multiple times. Non-party

Eagle Copters, a company incorporated under the laws 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 salvage operations on national

forest land in the United States. The United States 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 corporate affiliate Copter Lease, a

New Mexico corporation and a defendant in this action. Copter Lease then

acquired FAA registration No. N212HQ. While the exact nature of the

relationship between Copter Lease and Eagle Copters is unclear, the district court

found that Copter Lease owned the helicopter “in trust for the benefit of” Eagle

Copters. Op. 2. Copter Lease took possession in February, 1999.

 Copter Lease then leased the helicopter to defendant HeliQwest

International (“HeliQwest”), an unaffiliated company incorporated under the laws

of Washington State. The “directing mind” of HeliQwest is non-party HeliQwest

Aviation, Inc., a company incorporated under the laws of Alberta, Canada. An

affidavit by Copter Lease’s sole employee states that Copter Lease and HeliQwest
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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 International Airport, and

HeliQwest agreed to return the helicopter to Copter Lease at the same place, when

the lease terminated. Id. The accident occurred while the helicopter was leased

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 filed an action in Alberta

against Bell Helicopter and two of its subsidiaries, based on theories of

negligence and breach of contract. They sought damages for the loss of the

helicopter and other damages. On or about December 3, 2001, Bell Helicopter

filed a complaint in the U.S. District Court for the District of Utah against Copter

Lease and HeliQwest, seeking a declaratory judgment concerning the applicability

of the General Aviation Revitalization Act (“GARA”), 49 U.S.C. § 40101, to the

accident. Copter Lease moved to dismiss for lack of personal jurisdiction and

HeliQwest moved to dismiss for lack of subject matter jurisdiction.

The district court granted Copter Lease’s motion to dismiss. The court

found that because Copter Lease did not transact business in Utah, did not

contract to supply goods or services in Utah, and had no office or officers in
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Utah, there were not sufficient minimum contacts with Utah to come within the

reach of the Utah long-arm statute. Op. 8. As a consequence, the court held that

it would violate federal due process to exercise personal jurisdiction over Copter

Lease. Op. 9. The district court treated HeliQwest’s motion to dismiss for lack

of subject matter jurisdiction as a request to decline jurisdiction over Bell

Helicopter’s request for a declaratory judgment. The 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 favor of HeliQwest, and

accordingly declined to exercise jurisdiction over the declaratory judgment. Op.

12. Bell Helicopter filed a timely notice of appeal on both orders.

ANALYSIS

1. Personal Jurisdiction over Copter Lease.

To satisfy the constitutional requirement of due process 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 products 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
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State [but] that the defendant’s conduct and connection with the forum State are

such that he should reasonably anticipate being haled into court there.” Id. at

297. The burden of establishing personal jurisdiction 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 consists 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 resolve 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 either of two ways. When

the defendant has “continuous and systematic general 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 ‘purposely

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 activities.” 

Burger King v. Rudzewicz , 471 U.S. 462, 472-73 (1985) (citations omitted);
1A finding of minimum contacts with the forum is necessary, but is not

sufficient for the exercise of personal jurisdiction. A district court must also

consider whether personal jurisdiction is reasonable 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 exercise of jurisdiction is

reasonable: (1) the burden on the defendant; (2) the forum state’s interest in

resolving the dispute; (3) the plaintiff’s interest in receiving convenient and

effective relief; (4) the interstate judicial system’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.

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Kuenzle , 102 F.3d at 455. In this case, Plaintiff Bell Helicopter asserts specific,

not general, jurisdiction over Copter Lease. 

To support specific jurisdiction, there must be “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.” 

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 purposes of specific jurisdiction

precludes personal jurisdiction as the result of “random, 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 of specific jurisdiction

over:
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Any person . . . whether or not a citizen or resident 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 jurisdiction 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 based 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 HeliQwest, 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 helicopter to HeliQwest for use in

Utah constitutes “purposeful availment” of the privilege 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 delivered 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 it lacked personal jurisdiction.
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Bell Helicopter contends, however, that the district court overlooked

several facts supporting the inference that Copter Lease solicited business in

Utah. This Court has held that even when another party acts unilaterally,

“[s]olicitation [by the defendant] is some evidence suggesting purposeful

availment.” Far West , 46 F.3d at 1076. All parties agree that HeliQwest now

maintains a principal place of business in Provo, Utah. Bell Helicopter contends

that because HeliQwest has had this facility in Provo for an “unknown period,” it

is possible HeliQwest had its principal place of business in Utah at the time of

the helicopter leasing, and thus that Copter Lease’s actions in obtaining business

with HeliQwest constituted solicitation for provision of goods or services in

Utah. Aplt. Br. 13. 

One piece of evidence Bell Helicopter offers on this 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 after the accident, however, it

has little bearing on the state of affairs at the time of the lease or the accident.

Bell Helicopter also presents evidence that HeliQwest registered to do business

in Utah on March 16, 2000. Aplt. App. 233-34. Rather than supporting its case,

however, this evidence casts doubt on the notion that HeliQwest had a principal

place of business in Utah at the time of the lease or at the time of the accident. 
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It would be odd for HeliQwest to maintain a principal place of business in a state

where it was not even registered to engage in commerce. 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 not a principal one, in Utah at

the time of the lease.

Even if the lessee operated a facility in Utah at the 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 customer 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 that 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 that 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 would be used in the Rocky

Mountain region does not create minimum contacts in Utah).

Bell Helicopter also argues that HeliQwest’s efforts to qualify as an

official supplier for the 2002 Winter Olympics in Salt Lake City bear on
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HeliQwest’s personal jurisdiction status. Specifically, Bell Helicopter claims

that “[i]t stretches credulity to think that Copter Lease 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 assertion, 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 would not surface. Even if

HeliQwest did mention its Olympic intentions it is difficult to see how this

knowledge means that Copter Lease purposefully availed itself of Utah’s legal

protections when it leased equipment to HeliQwest for other purposes. 

Bell Helicopter’s strongest claim is based on evidence that Copter Lease

was hoping to lease the subject helicopter to an entity that could secure contracts

with the United States Forest Service. Depending on Copter Lease’s specific

actions, it is possible that this behavior could qualify 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 temporal sense. The defendant

offered to explore potential agreements involving the forum state with Far West
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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 distant from the resulting

controversy to support a finding that the defendant purposefully availed herself

of the protections of the forum state. Id. Bell Helicopter’s claims about any

possible solicitations by Copter Lease face similar problems with remoteness.

Bell Helicopter would have us believe that Copter Lease “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 Lease’s intentions is the

affidavit of Copter Lease’s sole employee stating that Copter Lease was formed,

in part, to enable Eagle Copters to obtain contracts 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 any type of solicitation.

At most, one can assume that Copter may have encouraged 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 region 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
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be used in the Rocky Mountain region does not create 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 for use in Utah, we will not infer

that Copter Lease made the targeted solicitation necessary for a finding of

purposeful availment. As a result, we find that Bell Helicopter has not made the

prima facie showing necessary for personal jurisdiction.

At various points in its briefs Bell Helicopter laments 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 proposition that

“[w]hen a defendant moves to dismiss for lack of jurisdiction, either party should

be allowed discovery on the factual issues raised by that motion.” Conveniently,

Bell Helicopter omits the next sentence in Budde stating, “[t]he trial court,

however, is vested with broad discretion and should not be reversed unless

discretion is abused.” Id. (citation omitted); see also Pippinger v. Rubin , 129

F.3d 519, 533 (10th Cir. 1997). Bell Helicopter does not specifically argue that

the district court abused its discretion in refusing Bell Helicopter’s requests and

we see no reason to make that finding. 
2Appellee contends that it produced the lease for Bell Helicopter in the

Canadian proceedings. Aple. Br. 21 n. 10. However, for the purposes of this

appeal, we proceed under the assumption that Bell Helicopter does not have

access to these documents.

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Bell Helicopter seems particularly dismayed that the district court did not

permit discovery of the lease agreement between Copter Lease and HeliQwest. 2

Aplt. Br. 20. It is possible, though improbable, that the terms of the lease might

provide some evidence of purposeful availment of the protection of Utah law. 

For example, the lease could confine movement of the helicopter to Utah.

However, given that the helicopter saw service throughout 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. Given 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 Judgment Action.

HeliQwest filed a motion to dismiss Bell Helicopter’s declaratory

judgment action for lack of subject matter jurisdiction. 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 purpose
3The fourth factor involves cases with concurrent state and federal

proceedings. As this case involves an international dispute any federalism

concerns are not relevant.

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in clarifying the legal relations at issue; [3] whether the

declaratory remedy is being used merely for the purpose

of “procedural fencing” or “to provide an arena for a

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 alternative

remedy which is better or more effective.

Mhoon , 31 F.3d at 983. The district court found that all 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 declaratory 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 action, none of Bell

Helicopter’s adversaries in the Canadian litigation would be bound by a decision

of the Utah court. The district court was therefore correct in observing that any
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declaratory judgment rendered in this litigation would not settle the controversy.

Op. 11. 

The judgment of the district court dismissing this action is therefore

AFFIRMED.