No. 09-1343

IN THE

mpr m=: Q;ourt of rtit ll

J. Mc INTYRE MACHINERY LTD.,

ROBERT NICASTRO andROSEANN NICASTRO, h/w,

Petitioner,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW JERSEY

REPLY BRIEF

STEVEN E GOOBYJAMES S. COONSANSA ASSUNCAO, LLP

Two Tower Center Blvd.Suite 1600East Brunswick, NJ 08816(732) 993-9850

ARTHUR F. FERGENSON

Counsel of RecordANSA ASSUNCAO, LLP

3545 Ellicott Mills DriveEllicott City, MD 21043(410) 203-1247arthur.fergenson@ansalaw.com

Attorneys for Petitioner

231762

C 0 U N SEL PRESS

(800) 274-3321 . (800) 359-6859

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STATEMENT PURSUANT TO RULE 29.6

Petitioner’s corporate disclosure statement was setforth at page ii of its Petition for a Writ of Certiorari,and there are no amendments to that statement.

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TABLE OF CONTENTS

STATEMENT PURSUANT TO RULE 29.6 ...

TABLE OF CONTENTS ....................

TABLE OF CITED AUTHORITIES .........

PRELIMINARY STATEMENT .............

ARGUMENTS IN REPLY ..................

The Lower Court’s New And ExtraordinaryExpansion Of The "Stream-Of-Commerce"Theory Of Personal Jurisdiction IsInconsistent With The Limits On ThatDoctrine That Have Been Articulated ByThis Court ............................

II. Respondents Continue To PursuePetitioner Before The Courts Of NewJersey And In The United :Kingdom,Rendering By Their Own Actions This CaseAs Appropriate For This Court To Hear...

III. The Lower Court’s Final Decision ToExercise Personal Jurisdiction Over J.McIntyre Under A New Theory Of Stream-Of-Commerce Is Subject To The ExerciseOf This Court’s Certiorari Jurisdiction.

CONCLUSION .............................

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TABLE OF CITED AUTHORITIESPage

Cases:

Asahi Metal Industry Co., Ltd.v. Superior Court of California,

480 U.S. 102 (1987) ......................2, 3, 4

Burger King v. Rudzewicz,471 U.S. 462 (1985) .......................4

Cox Broadcasting Corporation v. Cohn,420 U.S. 469 (1975) ....................6, 7, 8, 9

Nicastro v. McIntyre Machinery America, Ltd.,201 N.J. 48, 987 A.2d 575 (2010) ............

North Dakota Pharmacy Boardv. Snyder’s Stores,414 U.S. 156 (1973) .......................7

Shaffer v. Heitner,433 U.S. 186 (1977) ......................7, 8, 9

World Wide Volkswagen v. Woodson,444 U.S. 286 (1980) .......................3, 4

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PRELIMINARY STATEMENT

J. McIntyre Machinery Ltd. ("J. McIntyre")respectfully submits this Reply in support of its Petitionfor a Writ of Certiorari to the Supreme Court of NewJersey.

Far from simply "reaffirming" this Court’s priorrulings, as Respondents contend, the New JerseySupreme Court in Nicastro v. McIntyre MachineryAmerica, Ltd., 201 N.J. 48, 987 A.2d 575 (2010),announced a new, unrestrained approach to the stream-of-commerce theory of personal jurisdiction. That newdoctrine, requiring nothing more than marketing aproduct to the United States, and what it portends forboth foreign and domestic defendants’ constitutionaldue process rights, renders this an important decisiondeserving of this Court’s review. In an unavailing effortto avoid acknowledging the lower court’s fundamentalalteration of a defendant’s due process rights,Respondents mischaracterize the lower court’s rulingas following this Court’s precedents, and suggest thatthere may exist a host of facts to be considered, none ofwhich the lower court deemed necessary to render itsdecision.

Respondents also oppose the Petition by arguingthat this case might possibly be rendered moot at somefuture time. Respondents have the power to end thiscase at any time: by dropping the remanded lawsuit inNew Jersey state court and by withdrawing their claimin the pending United Kingdom liquidation proceedings.Respondents, after all, are plaintiffs and the key tomootness is in their hands. Respondents, by evidence

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of their own opposition to this Petition, are eager claimants;rendering the lawsuit moot appears to be the furthest thingfrom their minds.

Finally, Respondents assert that this Court lacksjurisdiction, and choose not to discuss, much lessdistinguish, the case law supplied by Petitioner in supportof this Court’s ability to hear this matter if it so decides.

ARGUMENTS IN REPIN

The Lower Court’s New And ExtraordinaryExpansion Of The "Stream-Of-Commerce" TheoryOf Personal Jurisdiction Is Inconsistent With TheLimits On That Doctrine That Have BeenArticulated By This Court.

In their opposition, Respondents at once seek to denythe novelty and expand the factual basis for the lowercourt’s decision. Respondents state that the decision"merely comports" both with Justice O’Connor’s "Stream-of-Commerce-Plus" approach requiring a finding ofpurposeful conduct ("plus" factors) specifically directedtoward the forum, and Justice Brennan~’s requirement ofactual awareness that a product be marketed in the specificforum state, as set forth in their competing pluralityopinions in Asahi Metal Industry Co., Ltd. v. SuperiorCourt of California, 480 U.S. 102, 112-117 (1987);(Opp. Brf., 18). Respondents misappreher~d the New JerseySupreme Court’s holding in this case, which that courtclaimed was a response to a "radically transformed"international economy. (App. 35a). Contrary toRespondents’ arguments of conformity with this Court’sprecedent, the lower court’s assertion of radical change is

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recognition of the fundamental transformation that itunderstood it was making in the law of due process andpersonal jurisdiction.

Respondents also assert a plethora of random facts,which, even if true, were not a part of the New JerseySupreme Court’s reasoning or holding and are therebyirrelevant to this Court’s consideration of the Petition.1For purposes of its new interpretation of the stream-of-commerce theory, the lower court relied on but twofindings: 1) that J. McIntyre marketed to the UnitedStates; and 2) that a J. McIntyre machine was purchasedby a New Jersey resident. Based on nothing more thanthose facts and relying on its judicially-noticed discoveryof a new "world market," (App. la), the court belowfound jurisdiction over J. McIntyre. Petitioner need nothave taken any actions related to New Jersey or eventhought about it, a far cry from either plurality in Asahi.The lower court’s holding explicitly dispensed with afinding of defendant’s specific connection with theforum, be it by intentional conduct or throughawareness.

This Court, in both Asahi, supra, and World WideVolkswagen v. Woodson, 444 U.S. 286 (1980), focusedon a defendant’s minimally-directed activity, contacts

1. On the rare occasion when Respondents address a factconsidered by the lower court, they misrepresent what that courtfound. Contrary to Respondents’ contention that J. McIntyre"firmly controlled" the Ohio-based McIntyre MachineryAmerica ("MMAY), (Opp. Brf., 12), the court below found that J.McIntyre and MMA "were distinct corporate entities,independently operated and controlled, without any commonownership." (App. 7a).

with a forum state, or actual awareness of its productsin the forum state. Where such activities by thedefendant can be established, that defendant can be saidto have been given "fair warning" of suit, and requiringit to answer a suit there comports with due process.See Asahi, 480 U.S. at 112-17; Burger King v.Rudzewicz, 471 U.S. 462, 474 (1985); World WideVolkswagen, 444 U.S. at 297-98. Where such activitiesare lacking, however, a "stream of commerce,"without more, is not enough to satisfy due process andsustain an exercise of jurisdiction over the defendant.World Wide Volkswagen, 444 U.S. at 298-99.

Here, the lower court made no pretense of findingminimally-directed activity toward New Jersey. Itcompletely dispensed with that requirement as an"outmoded construct of persona], jurisdiction,"(App 35a), and required only that J. McIntyre soldproducts generally in the United States and that therewas a New Jersey resident who purchased the product.None of the alleged facts that Respondents arguesquare Asahi with the lower court’s, approach wererelied upon by the lower court, and form no part of itsdecision, its holding, or of its extension of jurisdictionover Petitioner.

The lower court’s new approach was groundbreaking.It understood that. The dissent understood that. And, onthis point, Petitioner agrees. Only Respondents disagree.They are wrong.

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II. Respondents Continue To Pursue PetitionerBefore The Courts Of New Jersey And In TheUnited Kingdom, Rendering By Their OwnActions This Case As Appropriate For This CourtTo Hear.

Respondents contend that the question of NewJersey’s exercise of personal jurisdiction over Petitioner"may become moot," (Opp. Brf., 12), and because of thispossibility, they argue that this case is not a suitablevehicle for this Court to exercise its jurisdiction. Thisargument fails for several reasons, not the least of whichis its utter vagueness.

First, J. McIntyre is not dissolved. The companycontinues to exist today as an entity that is seeking thisCourt’s review and defending the trial court litigationon remand in the Superior Court of New Jersey. J.McIntyre remains answerable for claims against it.

Second, even as Respondents belittle Petitioner’sjuridical health for purposes of this Court’s review,Respondents express a much different approach toPetitioner when it comes to their own interests.Respondents are actively pursuing their claims in theinstant litigation on remand to the New Jersey trialcourt, and, through British counsel, they have filed theirown proof of loss against J. McIntyre with the liquidatorin the United Kingdom. Respondents’ argument againstthis Petition requires that this Court ignoreRespondents’ own conduct, which is directed towardssecuring a recovery against Petitioner on two fronts,including before this Court.

While Respondents argue on the one hand that thecase is an inappropriate vehicle for certiorari because itmay--somehow, someday, in some country--eventuallybecome moot, they also argue that were J. McIntyre to"prevail on the merits, the issue of personal jurisdictionwill become academic." (Opp. Brf. 13). Respondents’argument against review because J. McIntyre mayprevail on the merits fundamentally conflicts with theirsuggestion that the specter of mootness renders thiscase ultimately futile. Respondents do not suggest thatthe Petition does not present a case or controversyunder the Constitution, and Petitioner urges that thisCourt take its cue from Respondents’ own determinationand accept review of the case by granting the instantPetition.

III. The Lower Court’s Final Decision To ExercisePersonal Jurisdiction Over J. McIntyre Under ANew Theory Of Stream-Of-Commerce Is SubjectTo The Exercise Of This Court’s CertiorariJurisdiction.

The New Jersey Supreme Court’s judgment findingpersonal jurisdiction over J. McIntyre i,,~ sufficiently finalto warrant this Court’s immediate review of the matterpursuant to 28 U.S.C. § 1257(a) and Cox BroadcastingCorporation v. Cohn, 420 U.S. 469, 485 (1975). (See Pet.,2). Although this case was remanded for furtherproceedings on the merits, the federal constitutionalissue of personal jurisdiction over J. McIntyre wasadjudicated to finality and is not subject to furtherreview by the New Jersey courts. This Court hasgranted review in these very circumstances, finding thata state court judgment involving an important federal

issue is final even though "there are further proceedingsin the lower state courts yet to come." Cox, 420 U.S. at485; see also Shaffer v. Heitner, 433 U.S. 186, 195 (1977);North Dakota Pharmacy Board v. Snyder’s Stores, 414U.S. 156, 159-64 (1973).

In Cox, this Court granted immediate review of astate court judgment that upheld the First Amendmentconstitutionality of a statute authorizing suit against thepress for publishing the name of a rape victim. Althoughthe Georgia Supreme Court had remanded the case fortrial on the merits, this Court found Section 1257(a)’sfinality requirement satisfied because the state courtjudgment was "plainly final on the federal issue" and"not subject to further review in the state courts." ThisCourt held that while the Cox appellants might haveprevailed on non-federal grounds, if the state court haderroneously decided the matter "there should be no trialat all" because this Court could find that the statute inquestion was unconstitutional and thus terminate thelitigation. Cox, 420 U.S. at 485-86. Accordingly, this Courtgranted review, noting that a failure to decide thequestion would leave the press in a state of legal andconstitutional uncertainty while the lower courtproceedings were pending. Id. Here, as in Cox, all thepredicates for a finding of finality are present, and ifthe lower court is wrong, Petitioner should face no trialat all.

Shaffer v. Heitner, supra, is consistent with Cox andprocedurally analogous to this case. In Shaffer,nonresident defendants were seeking immediate reviewof a state court’s exercise of personal jurisdiction overthem, despite their claim that they had no contacts with

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the forum state. Shaffer, 433 U.S. at 194-95. Employinga pragmatic approach, this Court found that the statecourt’s finding of personal jurisdiction over thedefendants was sufficiently final for review. Id. ThisCourt reasoned that if review were not granted, thedefendants would have the impossible choice of sufferinga default judgment or entering a general appearanceand defending on the merits. Id. Substituting the"Georgia" of Cox for the "Delaware" in Shaffer, thisCourt ruled:

"The (Delaware) Supreme Court’s judgmentis plainly final on the federal issue and is notsubject to further review in the state courts.Appellants will be liable for damages if theelements of the state cause of action areproved. They may prevail at trial onnonfederal grounds, it is true, but if the(Delaware) court erroneously upheld thestatute, there should be no trial at all."

Id. (quoting Cox, 420 U.S. at 486).

As in Cox and Shaffer, the lower court’s order findingpersonal jurisdiction over J. McIntyre is final forpurposes of this Court’s review. The judgment was finalon the important federal issue of whether New Jersey’scourts may require J. McIntyre to defend a New Jerseystate lawsuit consistent with due process of law, and thelower court’s ruling on jurisdiction is not subject tofurther review in New Jersey’s courts. As in this Court’scases, that J. McIntyre might prevail on the merits attrial does not remove this Court’s ability to issue a writof certiorari to review the judgment below. The finality

rule is satisfied because a finding by this Court that thelower court exceeded the bounds of the Constitutionwould bring an end to the litigation on the merits.See Cox, 420 U.S. at 485; Shaffer, 433 U.S. at 195.

CONCLUSION

For the foregoing reasons and those set forth in itsPetition, J. McIntyre Machinery, Ltd., respectfullyrequests that this Court grant its petition for a writ ofcertiorari to the Supreme Court of the State of NewJersey.

Respectfully submitted,

ARTHUR F. FERGENSON

Counsel of RecordANSA ASSUNCAO, LLP3545 Ellicott Mills DriveEllicott City, MD 21043(410) 203-1247arthur.fergenson@ansalaw.com

STEVEN E GOOBYJAMES S. COONSANSA ASSUNCAO, LLPTwo Tower Center Blvd.Suite 1600East Brunswick, NJ 08816(732) 993-9850

Attorneys for Petitioner

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