A motion to dismiss for lack of personal jurisdiction
Argue that a Franklin court cannot hear a claim against an out-of-state seller that shipped one product at a buyer's request. You have 90 minutes. To: Associate. Use the File and the Library only, then compare your draft with the rubric and the model answer below.
The assignment
To: Associate. From: Yolanda Price, Partner. Re: Kestrel Audio, Inc. We represent Kestrel Audio, a Nevada company, which has been sued in Franklin by Dale Moreno for injuries from a speaker. Please draft the Argument section of our brief supporting a motion to dismiss for lack of personal jurisdiction. Use only the Library, use point headings that are complete sentences, do not include a statement of facts, and answer Mr. Moreno's likely arguments that Kestrel has a website open to Franklin and that it shipped the speaker here.
File
Client declaration excerpt
Kestrel Audio is incorporated in Nevada, with its only office and warehouse in Reno. It sells speakers through its own website and through two Nevada retail stores. The website is open to anyone but Kestrel has never run advertising aimed at Franklin, has no Franklin employees, agents, or property, and has never paid Franklin taxes. In the past three years, Kestrel shipped products to Franklin in 4 of 3,100 orders, about one-tenth of one percent of sales. The speaker at issue was ordered on the website by Mr. Moreno, who lives in Franklin, and Kestrel shipped it to his home on March 3.
Complaint excerpt
Plaintiff alleges the speaker overheated while charging, causing burns to his hand on March 20 in his Franklin home. He alleges Kestrel does business in Franklin by selling through its website.
Library
Long-Arm Statute, section 6-210 (Franklin)
A Franklin court may exercise personal jurisdiction over a nonresident to the extent permitted by the Due Process Clause of the United States Constitution.
A Franklin resident sued an Ohio tool company after a purchase through its website. The court held that jurisdiction requires that the defendant purposefully avail itself of the privilege of conducting activities in Franklin, that the claim arise out of or relate to those contacts, and that jurisdiction be reasonable. The mere fact that a website can be reached from Franklin is not enough. Jurisdiction was found where the company targeted Franklin by running advertising here, sending regular shipments to Franklin dealers, and accepting hundreds of Franklin orders.
A seller filled a single order from a Franklin buyer, shipping a kettle that later exploded. Held: no jurisdiction. A single sale that results only because the buyer chose to buy is a unilateral act of the plaintiff and is not purposeful availment. The court said a defendant's contacts must be its own choice, that a few isolated shipments do not show an effort to serve the Franklin market, and that reasonableness factors cannot supply purposeful availment that is missing.
What graders look for in this task
Graders score a response against these criteria, and every one of them depends on using only the facts in the File and only the rules in the Library, so treat the list as a check for your draft after the first pass and again before you stop writing.
Uses complete-sentence point headings and no statement of facts
States the section 6-210 rule that the limit is due process
Applies the three-part Harmon test of purposeful availment, relatedness, and reasonableness
Argues the website alone does not target Franklin under Harmon
Uses the absence of advertising, agents, property, and the 4 of 3,100 orders
Applies Lund to argue one order placed by the buyer is unilateral activity of the plaintiff
Answers the shipment argument by pointing to the buyer's choice and the isolated sales
Argues reasonableness cannot supply the missing purposeful availment