RENDERED: MAY 17, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0636-MR

ROBERT BRAUN APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT

v. HONORABLE DIANE MINNIFIELD, JUDGE

ACTION NO. 21-CI-03016

BEARMAN INDUSTRIES, LLC; AND

TOP DOLLAR PAWN, LLC APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: EASTON, KAREM, AND TAYLOR, JUDGES.

KAREM, JUDGE: Robert Braun appeals from the Fayette Circuit Court’s 

dismissal of his complaint against Bearman Industries, LLC (“Bearman”), for lack 

of personal jurisdiction. Upon careful review, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

Bearman is a limited liability company that manufactures firearms and 

sells them wholesale to distributors throughout the United States. Bearman is 

organized and registered in Utah and its principal place of business is Salt Lake 

City. 

On October 20, 2021, Braun purchased a handgun manufactured by 

Bearman from Top Dollar Pawn, LLC (“Top Dollar”), a Kentucky limited liability 

company with its principal place of business in Lexington. Several days later, as 

Braun was unloading the handgun, it discharged and injured his hand. Braun filed 

suit against Bearman and Top Dollar in Fayette Circuit Court, alleging defective 

design and/or manufacturing. The complaint included claims of strict liability, 

negligence, failure to warn, and breach of warranty against both defendants. 

Bearman filed a motion to dismiss on the grounds the circuit court 

lacked personal jurisdiction. A hearing was conducted, at which it was determined 

that the parties should engage in preliminary discovery before the circuit court 

ruled on the motion. Bearman thereafter failed to respond to Braun’s discovery 

requests. Braun filed a motion to compel which the circuit court granted. 

Bearman responded to the discovery requests and, two months later, moved for a 

status conference hearing on the motion to dismiss. At the status hearing, Bearman 

renewed its motion to dismiss. The circuit court entered an order dismissing 
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Braun’s complaint for lack of personal jurisdiction over Bearman. Braun filed a 

motion to alter, amend, or vacate. Following a hearing, the circuit court affirmed 

its previous order dismissing Braun’s claims against Bearman for lack of personal 

jurisdiction and issued an amended order making its ruling final and appealable.

During the course of the litigation, Bearman submitted an affidavit 

from its sole member-manager, Jared Yeates, to support its motion to dismiss. It 

stated in pertinent part as follows:

Bearman Industries does not conduct and has never 

regularly conducted business in the Commonwealth of 

Kentucky.

Bearman Industries is not licensed or registered to do 

business in the Commonwealth of Kentucky and has 

never sought authorization to do so.

Bearman Industries does not have any employees in 

Kentucky.

Bearman Industries neither leases nor owns any real or 

personal property in Kentucky.

Bearman Industries does not sell and has not sold its 

products to persons or entities in Kentucky. It has no 

business contracts or agreements for services or 

distribution or parts manufactured in Kentucky or 

involving Kentucky-domiciled parties.

Bearman Industries does not advertise and has not 

advertised its products in Kentucky.

Bearman Industries does not purposefully direct or target, 

and has not purposefully directed or targeted, any internet 

advertising or website toward Kentucky residents or 
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businesses. Bearman Industries does not maintain, nor 

has it maintained, any website that allows consumers to 

purchase its products directly through any such website.

Bearman Industries does not solicit business in the 

Commonwealth of Kentucky nor does it derive any direct 

revenue from any product used or consumed or services 

rendered in Kentucky.

The firearm that is the subject of the above-captioned 

lawsuit and which allegedly caused injury to the Plaintiff 

was neither distributed to or sold by Bearman Industries 

to either Top Dollar Pawn, LLC or to the Plaintiff.

Bearman also asserted that it engages in no direct-to-consumer 

transactions, selling only bulk pallet orders of firearms to a limited number of 

wholesale distributors, located in Texas, Louisiana, Alabama, Florida, and 

Tennessee. According to statements made by counsel at the hearing on the motion 

to alter, amend, or vacate, the handgun that injured Braun had passed through two 

different pawn shops and three different owners before Braun purchased it. 

Braun contended that Bearman placed its handguns into the stream of 

commerce voluntarily and was gaining revenue from the sale of those firearms in 

Kentucky. Braun claimed that Bearman regularly conducts business with its 

distributors and knew that its distributors regularly sold its products in Kentucky. 

Braun produced screenshots of various websites of national and local firearms 

retailers and pawn shops, showing Bearman weapons for sale in Lexington, 

Louisville, Corbin, Shelbyville, and Liberty, Kentucky. Braun asserted that there 
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are no facts in the record to suggest that Bearman does not derive substantial 

revenue from its sales in the Commonwealth and that Bearman had not refuted the 

evidence showing numerous online and in-person sales of its weapons in 

Kentucky. 

STANDARD OF REVIEW

Notably, Bearman filed its Motion to Dismiss pursuant to both CR 

12.02(b), lack of jurisdiction over the person, and Kentucky Rules of Civil 

Procedure (“CR”) 12.02(f), failure to state a claim upon which relief can be 

granted. However, Bearman’s arguments were limited to those facts and 

applicable law regarding CR 12.02(b). Moreover, the circuit court limited 

discovery to that which was pertinent to the issue of personal jurisdiction and 

subsequently ruled on the motion to dismiss, granting the same. Appropriately, the 

circuit court did not convert the Motion to Dismiss to a Motion for Summary 

Judgement.1 When deciding a motion to dismiss “the pleadings should be liberally 

1

Federal courts generally recognize that it is improper to convert 

motions to dismiss based on an alleged lack of personal

jurisdiction into summary judgment motions. 10A Fed. Prac. &

Proc. Civ. § 2713 (4th ed. 2023) (“In general, courts have ruled 

that summary judgment is an inappropriate vehicle for raising a 

question concerning . . . personal jurisdiction . . . . Therefore, 

although some courts have entered summary judgment on 

jurisdictional grounds, the general rule is that it is improper for a 

district court to enter a judgment under Rule 56 for defendant 

because of a lack of jurisdiction.”) (footnotes and citations 

omitted); Kerns v. Caterpillar, Inc., 583 F. Supp. 2d 885, 891 n.1 

(M.D. Tenn. 2008); Lavrov v. NCR Corp., 600 F. Supp. 923, 929 
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construed in a light most favorable to the plaintiff and all allegations taken in the 

complaint to be true. Because the issue of personal jurisdiction is a legal question 

to be answered in light of those allegations” our review is de novo. Bondurant v. 

St. Thomas Hosp., 366 S.W.3d 481, 483 (Ky. App. 2011) (citations omitted).

ANALYSIS

“When a lawsuit is filed in Kentucky against a non-resident 

defendant, the plaintiff carries the burden of establishing jurisdiction over the 

defendant.” Hinners v. Robey, 336 S.W.3d 891, 895 (Ky. 2011). The plaintiff is 

required to establish “with reasonable particularity sufficient contacts between [the 

defendant] and the forum state to support jurisdiction.” Id. (quoting Neogen Corp. 

v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002)).

To determine if a plaintiff has met this burden, the circuit court 

employs a two-step process. First, the court must determine “if the cause of action 

arises from conduct or activity of the defendant” that fits within one of the 

categories enumerated in Kentucky’s long-arm statute, Kentucky Revised Statutes 

(“KRS”) 454.210. Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 57 

(S.D. Ohio 1984). That approach makes sense because “a court 

that lacks personal or subject-matter jurisdiction does not have 

power to enter any kind of a judgment – summary or otherwise.”

Pope v. Elabo GmbH, 588 F. Supp. 2d 1008, 1012 (D. Minn. 

2008). 

KKR & Co. Inc. v. Commonwealth, No. 2022-CA-0347-MR, 2023 WL 8285978, at *6 n.7 (Ky. 

App. Dec. 1, 2023).
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(Ky. 2011). Only if the defendant’s conduct fits one these categories may the court 

move to the second step, which involves determining “if exercising personal 

jurisdiction over the non-resident defendant offends his federal due process rights.” 

Id. 

The Kentucky Supreme Court has emphasized that these are two 

entirely separate and independent inquiries, explicitly rejecting the approach of 

earlier cases which skipped past KRS 454.210 and proceeded directly to a federal 

due process analysis. Caeser’s, 336 S.W.3d at 57. The Court described the 

practice of essentially ignoring the long-arm statute by eliding it with federal due 

process considerations as “a misconception,” because “if the intent of the statute 

were to reach the outer limits of federal due process, it could easily have been 

drafted to say precisely that.” Id. at 56-57. The Court explained that 

[t]he reach of Kentucky’s long-arm jurisdiction is a 

policy choice of the General Assembly, limited by 

federal and state constitutional considerations. KRS 

454.210 is the legislature’s expression of that policy, and, 

as such, the statute operates independently of federal due 

process analysis. Thus, we clarify that proper deference 

to the language of the statute compels that, as an initial 

step, review is necessary to determine whether long-arm 

jurisdiction over a foreign defendant is permissible under 

KRS 454.210. 

Id. at 57. 

The case upon which Braun relies most heavily, Poyner v. Erma 

Werke Gmbh, 618 F.2d 1186 (6th Cir. 1980), is an example of the approach 
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expressly rejected by the Supreme Court in Caesar’s. Poyner relied on an early 

opinion of this Court which interpreted KRS 454.210(2)(a) “as coextensive with 

the outer limits of due process.” Poyner, 618 F.2d at 1189 (citing Volvo of 

America Corp. v. Wells, 551 S.W.2d 826 (Ky. App. 1977)). Poyner is therefore 

not relevant to the first part of our jurisdictional analysis which must focus solely 

on the requirements of KRS 454.210.

Because the long-arm statute operates independently of the federal 

due process analysis, “a situation can occur in which the necessary contacts to 

satisfy due process are present, but in personam jurisdiction will not be obtained 

. . . because the statute does not authorize it.” Caesar’s, 336 S.W.3d at 57 (quoting 

Banco Ambrosiano S.P.A. v. Artoc Bank & Trust Ltd., 62 N.Y.2d 65, 476 N.Y.S.2d 

64, 464 N.E.2d 432, 435 (1984)). “Claims based upon contacts, conduct, and 

activities which may not fairly be said to meet one of these explicit categories must 

be held to be outside of the reach of the statute, regardless of whether federal due 

process might otherwise allow the assertion of in personam jurisdiction.” Id. at 56. 

But the opposite may also occur: A defendant’s contacts or activities may meet the 

requirements of the long-arm statute but fail to meet the standards of federal due 

process. That is the situation in this case. And, notably, the constraints of due 

process do not determine whether a non-resident defendant may be sued, only 

where the suit may be brought.
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i. Kentucky’s Long-Arm Statute

Under Kentucky’s long-arm statute, KRS 454.210, a “person” is 

defined as including “an individual, his executor, administrator, or other personal 

representative, or a corporation, partnership, association, or any other legal or 

commercial entity, who is a nonresident of this Commonwealth.” KRS 

454.210(1). The statute provides, in pertinent part, that “[a] court may exercise 

personal jurisdiction over a person who acts directly or by an agent, as to a claim 

arising from the person’s: 

1. Transacting any business in this Commonwealth;

2. Contracting to supply services or goods in this 

Commonwealth;

3. Causing tortious injury by an act or omission in this 

Commonwealth;

4. Causing tortious injury in this Commonwealth by an 

act or omission outside this Commonwealth if he 

regularly does or solicits business, or engages in any 

other persistent course of conduct, or derives substantial 

revenue from goods used or consumed or services 

rendered in this Commonwealth, provided that the 

tortious injury occurring in this Commonwealth arises 

out of the doing or soliciting of business or a persistent 

course of conduct or derivation of substantial revenue 

within the Commonwealth;[2]

5. Causing injury in this Commonwealth to any person 

by breach of warranty expressly or impliedly made in the 

2 This section was amended in 2024, effective April 10, 2024. These revisions do not affect the 

current action, as it was filed in 2021.
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sale of goods outside this Commonwealth when the seller 

knew such person would use, consume, or be affected by, 

the goods in this Commonwealth, if he also regularly 

does or solicits business, or engages in any other 

persistent course of conduct, or derives substantial 

revenue from goods used or consumed or services 

rendered in this Commonwealth[.]

KRS 454.210(2)(a). 

When jurisdiction over a person is based solely upon one of the 

subsections of KRS 454.210(2)(a), “only a claim arising from acts enumerated in 

this section may be asserted against him.” KRS 454.210(2)(b); H.E.B., LLC v.

Jackson Walkerr, L.L.P., 587 S.W.3d 333, 339 (Ky. App. 2019). 

None of the first three subsections of KRS 454.210(2)(a) confers 

jurisdiction over Bearman. There is no evidence that Bearman transacted any 

business in Kentucky, contracted to supply goods or services in Kentucky, or 

committed a tortious act or omission in Kentucky under KRS 454.210(2)(a)(1), (2), 

or (3). There is no evidence that Bearman had contact with anyone in Kentucky 

for the purpose of transacting business or contracting to supply firearms in 

Kentucky. The presence in Kentucky of weapons manufactured by Bearman is not 

sufficient to exercise long-arm jurisdiction over Bearman under (1), (2), or (3) of 

KRS 454.210(2)(a). 

Subsections (4) and (5), on the other hand, may confer jurisdiction if it 

can be shown that Bearman caused a tortious injury in Kentucky, i.e., Braun’s 
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personal injury, or breached a warranty in Kentucky by an act outside Kentucky, 

i.e., the manufacture of an allegedly faulty handgun, if Bearman derives substantial 

revenue from the sale of its goods in Kentucky. The plain language of the statute 

does not specify that the substantial revenue must be derived from direct sales 

made by Bearman in Kentucky and cannot be the result of sales to a middleman or 

distributor. 

Next, we must consider whether the claims asserted in the complaint 

arise from the derivation of substantial revenue as required under KRS 

454.210(2)(b). There must exist “a reasonable and direct nexus between the 

wrongful acts alleged in the complaint and the statutory predicate for long-armjurisdiction.” Caesar’s, 336 S.W.3d at 58. Such a nexus does exist between the 

manufacture of a faulty firearm and Braun’s resulting injury and the derivation of 

substantial revenue from the sale of such firearms. 

Bearman is subject to personal jurisdiction under the long-arm statute 

in this particular case. But Braun has failed to demonstrate that exercising 

personal jurisdiction over Bearman would satisfy the demands of federal due 

process. 

ii. Federal Due Process

“[D]ue process requires . . . that in order to subject a defendant to a 

judgment in personam, if he be not present within the territory of the forum, he 
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have certain minimum contacts with it such that the maintenance of the suit does 

not offend ‘traditional notions of fair play and substantial justice.’” Hinners v. 

Robey, 336 S.W.3d 891, 897 (Ky. 2011) (quoting International Shoe Co. v. State of 

Wash., Office of Unemployment Compensation and Placement, 326 U.S. 310, 316, 

66 S. Ct. 154, 158, 90 L. Ed. 95 (1945)).

“By requiring that individuals have ‘fair warning that a particular 

activity may subject [them] to the jurisdiction of a foreign sovereign,’ the Due 

Process Clause ‘gives a degree of predictability to the legal system that allows 

potential defendants to structure their primary conduct with some minimum 

assurance as to where that conduct will and will not render them liable to suit[.]’” 

Id. (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.

Ct. 559, 567, 62 L. Ed. 2d 490 (1980); Burger King Corp. v. Rudzewicz, 471 U.S. 

462, 471-72, 105 S. Ct. 2174, 2182, 85 L. Ed. 2d 528 (1985)).

To determine if an out-of-state defendant has sufficient minimum 

contacts with Kentucky to satisfy these due process requirements, we consider 

whether the defendant purposefully availed itself of “the convenience of our forum 

by conducting activities within this Commonwealth, thus invoking the benefits and 

protections of our laws[.]” Hughes v. Haas, 413 S.W.3d 315, 318 (Ky. App. 2013) 

(citing Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958)). 

“[I]t is the defendant’s purposeful availment that makes jurisdiction consistent with 
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‘traditional notions of fair play and substantial justice.’” J. McIntyre Machinery, 

Ltd. v. Nicastro, 564 U.S. 873, 880, 131 S. Ct. 2780, 2787, 180 L. Ed. 2d 765 

(2011). 

Merely placing goods in the stream of commerce is generally not 

sufficient to constitute purposeful availment. “The defendant’s transmission of 

goods permits the exercise of jurisdiction only where the defendant can be said to 

have targeted the forum; as a general rule, it is not enough that the defendant might 

have predicted that its goods will reach the forum State.” Id. at 882, 131 S. Ct. at 

2788. Under the “stream of commerce plus” theory adopted by the Sixth Circuit, 

“a defendant purposefully avails itself of the state’s privileges only if it does 

something more than placing its product into the stream of commerce.” Estate of 

Gibson by and through Shadd v. Daimler North America Corporation, 638 F. 

Supp. 3d 735, 746-47 (E.D. Ky. 2022). “‘Something more’ could be designing the 

product for the forum state’s market, advertising in the state, providing regular 

advice to customers in the state, or marketing through a distributor in the state.” 

Id. (citing Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano 

County, 480 U.S. 102, 112, 107 S. Ct. 1026, 1032, 94 L. Ed. 2d 92 (1987)). 

So, for example, in Poyner, the case cited by Braun, the Sixth Circuit 

Court of Appeals held that a German company had purposefully availed itself of 

the privilege of acting in Kentucky. The lawsuit was brought by a Kentucky 
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teenager who was seriously injured by a pistol manufactured by Erma, the German 

company. The record in the case showed that Erma had an agreement with L.A., a 

company based in New York, to be the sole United States distributor for Erma. The 

record also showed that Erma made efforts to maximize its sales in the United 

States and was “a strong backstage promoter of its products throughout the United 

States.” L.A. conducted nationwide advertising, sold to a distributor in Lexington, 

Kentucky, had a salesman in Tennessee and a warehouse in North Carolina, all 

capable of selling to or servicing customers in Kentucky. L.A. also solicited 

business in Kentucky through telephone calls and mail-order catalogs. Erma was 

aware of L.A.’s activities to sell Erma products. The district court specifically 

found that “Erma was certainly aware of LA’s activities to sell Erma products.” 

Poyner, 618 F.2d at 1190-91. 

There is no evidence of similar activities on Bearman’s part or on the 

part of its distributors. There is no evidence that Bearman sells to a distributor 

located in Kentucky, that Bearman’s distributors have solicited business in 

Kentucky, or that Bearman was even aware of its distributors’ activities in 

Kentucky. There is no evidence that Bearman knew of the destination of its 

firearms after they were sold to the distributors, or that Bearman took any interest 

in where they were being distributed or encouraged their sale in Kentucky. 

Although Braun claims that he was denied sufficient time to conduct discovery, the 
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record indicates that Bearman did respond to his discovery requests and Braun 

made no further requests. 

By contrast, in Halderman v. Sanderson Forklifts Co., Ltd., 818 

S.W.2d 270 (Ky. App. 1991), this Court held that it would be unreasonable to 

exercise personal jurisdiction over a British manufacturer, Sanderson Forklifts, 

because there was no evidence of the minimum contacts with Kentucky necessary 

to satisfy due process. The lawsuit was brought by a construction worker in 

Kentucky who was injured by a dumper manufactured by Sanderson. The dumper 

was one of three purchased by Gerbus, a Cincinnati company, as part of an attempt 

to test the market in the United States for these products. The Court held it would 

be unreasonable to exercise jurisdiction over Sanderson Forklifts because “[a]t no 

time did Sanderson Forklifts ever seek to directly distribute its products in 

Kentucky. It released three of its pieces of equipment to Gerbus, a distributor 

located in Ohio, to be distributed at Gerbus’ discretion. [Sanderson] has had no 

contact with any person or entity in this state. It was merely fortuitous that one 

Winget dumper ended up in Kentucky.” Halderman, 818 S.W.2d at 274. Apart 

from the fact that Halderman only involved three forklifts, whereas Bearman 

appears to have placed a very large volume of its firearms into the stream of 

commerce, the same description could be applied to Bearman’s connections (or 

lack thereof) to Kentucky. There is no evidence of any affirmative, purposeful 
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action on the part of Bearman to reach out to Kentucky and target its residents. As 

the circuit court aptly observed, “That Bearman sells firearms to distributors who 

in turn may, at their discretion, sell to third parties in Kentucky is not sufficient to 

conclude that Bearman has purposefully availed itself of the privilege of 

conducting business in this state.” We fully agree with its conclusion that “[t]he 

mere fact that a gun manufactured by Bearman injured a Kentucky citizen within 

Kentucky borders is not, without more, sufficient grounds to satisfy due process 

requirements.” 

CONCLUSION

Because the exercise of personal jurisdiction over Bearman does not 

meet the minimal requirements of due process, the Fayette Circuit Court’s 

dismissal of Braun’s complaint against Bearman is affirmed.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Kennedy D. Slusher

Taylor M. Shepherd

Perry L. Greer

Lexington, Kentucky

BRIEF FOR APPELLEE BEARMAN 

INDUSTRIES, LLC:

Kristin M. Lomond

Bradly E. Moore

Randall Tracy Starnes

Lexington, Kentucky