                                                                                FILED
                                                                            Jan 21 2020, 8:33 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      William E. Kelley, Jr.                                     Michael J. Jasaitis
      Marc A.W. Stearns                                          Ryan A. Deutmeyer
      Carmel, Indiana                                            Crown Point, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Aquatherm GmbH,                                            January 21, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-PL-981
              v.                                                 Appeal from the
                                                                 Lake Superior Court
      Renaissance Associates I                                   The Honorable
      Limited Partnership,                                       John M. Sedia, Judge
      Appellee-Plaintiff.                                        Trial Court Cause No.
                                                                 45D01-1709-PL-98



      Altice, Judge.


                                               Case Summary
[1]   This is an interlocutory appeal addressing the question of personal jurisdiction

      over Aquatherm GmbH (GmbH), a German company that manufactures

      polypropylene water pipes. Its pipes were installed in two ten-story apartment

      buildings called Renaissance Towers (the Towers) located in Hammond,

      Indiana and owned by Renaissance Associates I Limited Partnership

      Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020                           Page 1 of 26
      (Renaissance). After experiencing problems with the pipes, Renaissance filed a

      lawsuit against multiple entities, including GmbH. GmbH filed a motion to

      dismiss for lack of personal jurisdiction, which the trial court denied. GmbH

      now appeals, asserting that neither general personal jurisdiction nor specific

      personal jurisdiction exists.


[2]   We affirm.


                                    Facts & Procedural History
[3]   GmbH’s principal place of business is in Attendorn, Germany, and it

      manufactures the Aquatherm pipe only in Germany. GmbH does not own or

      lease any offices or any other real property in Indiana and is not registered to do

      business in Indiana. GmbH does not have a warehouse anywhere in the United

      States.


[4]   In addition to GmbH, there are several other Aquatherm entities involved in

      this lawsuit, including: Aquatherm, Inc., Aquatherm NA, L.C. (Aquatherm

      NA), and Aquatherm, L.P. (Aquatherm, LP). Initially, GmbH sold all of its

      Aquatherm pipe used for projects in the United States to Aquatherm, Inc. In

      January 2011, Aquatherm Inc. became known as Aquatherm NA, and from

      January 2011 to December 2015, GmbH sold its pipe used for projects in the

      United States to Aquatherm NA. Pursuant to a December 1, 2015 asset

      purchase agreement, Aquatherm NA’s assets were sold to Aquatherm, LP., and

      GmbH sold all Aquatherm pipe used for projects in the United States to

      Aquatherm, LP. When Aquatherm NA ceased operations, it had three

      Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020      Page 2 of 26
      warehouses, which were in Lindon, Utah, Virginia, and Toronto, Canada.

      Aquatherm, LP has one warehouse, and it is in Lindon, Utah.


[5]   The Aquatherm pipe at issue was delivered by GmbH under either or both of

      the following two delivery methods: (1) “FOB any European port” or (2) “Cost

      Insurance Freight.” Appellant’s Brief at 10-11. Under FOB any European port,

      title to the pipe transferred from GmbH to Aquatherm NA upon the pipe’s

      arrival at a European port. Aquatherm NA sold the Aquatherm Pipe to

      approved distributors, including Columbia Pipe & Supply. Co. (Columbia

      Pipe), a defendant in this action. When the Aquatherm pipe was shipped from

      an Aquatherm NA warehouse to a distributor, title to the product transferred

      from Aquatherm NA to the distributor upon shipment. Appellant’s Appendix Vol.

      II at 105. Under Cost of Insurance Freight delivery method, GmbH delivered

      pipe to Aquatherm, LP’s Lindon, Utah warehouse where it was held “as

      consignment stock” and title transferred from GmbH to Aquatherm, LP when

      Aquatherm, LP took the product out of stock at the Utah warehouse.

      Appellant’s Brief at 10-11. Aquatherm, LP sold Aquatherm pipe to distributors

      “under [the] same conditions” as Aquatherm NA sold to distributors. Id. at 12.


[6]   In 2012, Renaissance began a construction project to replace the galvanized

      steel hot water supply lines in the Towers. After meetings and discussions with

      personnel from Aquatherm entities and contractor Circle R Mechanical, Inc.

      (Circle R), Renaissance chose GmbH’s polypropylene pipes for the Tower

      project. Renaissance entered into written contracts with Circle R, in which

      Circle R agreed to provide all necessary labor and materials, including boilers

      Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020     Page 3 of 26
      and pipe, for the Towers project. Circle R purchased the pipe from Columbia

      Pipe, which held a distributor agreement with Aquatherm NA. Columbia Pipe

      also was the “authorized Aquatherm trainer” that trained Circle R employees

      regarding installation of the pipe. Appellant’s Appendix Vol. II at 61. The project

      began in 2012 and was completed in March 2013, with over 5000 linear feet of

      GmbH’s pipe having been installed in the Towers.


[7]   According to Renaissance, it began experiencing ruptures, failures, and

      extensive leaking with the hot water piping system at the Towers in 2014. The

      problems continued, and, on August 31, 2017, Renaissance filed its Complaint

      against defendants Circle R, Columbia Pipe, and Aquatherm, LP 1, asserting

      claims pertaining to alleged issues with the installation and performance of the

      hot water piping system at the Towers, including breach of contract, various

      breaches of warranty, negligence, and negligent misrepresentation. On or about

      February 27, 2018, Renaissance filed its First Amended Complaint asserting

      similar and additional claims against those defendants and adding defendants

      Aquatherm NA, Aetna NA, L.C., Aquatherm, Inc., Clark Family Holdings,

      L.C., and GmbH. 2 As to jurisdiction, the First Amended Complaint stated:




      1
        According to the Complaint, Renaissance is a limited partnership created under the laws of Missouri; Circle
      R is an Indiana corporation with its principal office in Portage, Indiana; Columbia Pipe is an Illinois
      corporation with its principal office in Chicago; and Aquatherm, LP is a Delaware limited partnership with
      its principal office in Lindon, Utah. Circle R and Columbia Pipe maintain offices in Indiana.
      2
        As is relevant to this appeal, Aquatherm NA is a Utah limited liability company with its principal place of
      business in Lindon, Utah, and GmbH is a foreign corporation organized in Germany with its principal office
      in Attendorn, Germany. Aquatherm, Inc. was a dissolved Utah corporation at the time the First Amended
      Complaint was filed.

      Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020                              Page 4 of 26
         13. This Court has personal jurisdiction over Defendants
         Aquatherm LP, Aquatherm NA, Aetna NA, Aquatherm, INC
         and CF Holdings (collectively: “Aquatherm”) under long arm
         jurisdiction for actions targeted to and occurring in Indiana
         because Aquatherm, including relevant predecessors and/or
         successors regularly conducts business in Indiana with respect to
         the marketing, sales and supplying of Aquatherm pipes that are
         the focus of the underlying dispute in this matter. Aquatherm
         representatives also traveled to Indiana to consult and/or advise
         with respect to the Aquatherm pipes at the Towers.


         14. This Court has personal jurisdiction over Defendant
         Aquatherm GmbH under long arm jurisdiction for actions
         targeted to and occurring in Indiana because this entity regularly
         conducts business in Indiana with respect to the manufacture,
         marketing, sales and/or supplying of Aquatherm pipes that are
         the focus of the underlying dispute in this matter.


Id. at 60. The Amended Complaint stated that “Aquatherm claims to back its

products with a 10-year manufacturer’s warranty that covers replacement parts,

replacement labor, incidental damages, medical costs, and financial loss.” 3 Id.

at 61. The only count against GmbH alleged negligence arising out of alleged

defective design and manufacture of the pipes and failure to warn and/or

instruct Renaissance about the defects and the proper and/or safe use of the

pipes. Renaissance alleged that it was damaged in an amount of at least

$413,300 as a proximate result of GmbH’s negligence.




3
  Both Complaints also alleged that, pursuant to the contracts, Circle R was to obtain professional liability
insurance and keep it in effect for three years after completion of the work and that Circle R “never obtained
such professional liability insurance[.]” Appellant’s Appendix Vol. II at 25, 61.

Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020                               Page 5 of 26
[8]   On October 24, 2018, GmbH filed a Motion to Dismiss for Lack of Personal

      Jurisdiction, arguing that GmbH lacked sufficient minimum contacts with

      Indiana such that the exercise of jurisdiction would violate the Due Process

      Clause of the Fourteenth Amendment. It maintained that GmbH’s

      “involvement with the [] piping transaction was completed upon the pipe’s

      delivery to Aquatherm NA’s or Columbia Pipe’s storage or warehouse

      locations,” that the distributors handled the redelivery to project sites, and

      “GmbH had no direct involvement with the [] Towers project.” Id. at 83.

      GmbH argued that general personal jurisdiction did not exist as it did not have

      continuous and systematic contacts with Indiana, nor did specific personal

      jurisdiction exist because “GmbH did nothing more than place its product into

      the stream of commerce, which is not enough for it to be haled into this Court.”

      Id. at 94. In support of its motion to dismiss, GmbH attached the affidavits of

      (1) Dirk Rosenberg, a Director of GmbH, and (2) Jordan Handy, CEO of

      Aquatherm L.P. (and formerly CFO of Aquatherm, Inc. and Aquatherm NA).


[9]   Rosenberg’s affidavit averred that GmbH does not own or lease property in

      Indiana, “does not have any sales or marketing representatives or distribution

      networks in Indiana[,]” “does not market Aquatherm pipe in [] Indiana[,]”

      “had no involvement with the [Towers] project[,]” and had “no knowledge that

      some of Aquatherm’s pipe . . . would eventually be redelivered to Indiana . . .

      and used for the [Towers] project[.]” Id. at 98, 100. Hardy’s affidavit stated,

      among other things, that GmbH did not have any involvement after the




      Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020       Page 6 of 26
       distributor took title to the pipe and that GmbH did not track the destination of

       the pipe.


[10]   Renaissance filed its opposition to the motion for summary judgment, asserting

       that Indiana has both general and specific personal jurisdiction over GmbH.

       Renaissance argued that GmbH “has purposefully availed itself of conducting

       business in Indiana” through its “substantial national distribution network in

       the United States.” Id. at 109, 111. Renaissance argued that GmbH did not

       merely place its product in the stream of commerce; it knew and in fact

       encouraged that its product would be sold in the United States, including in

       Indiana, and that GmbH’s activities made it reasonable that it would anticipate

       being haled into court in Indiana.


[11]   In support of its opposition, Renaissance submitted the affidavit of Daniel

       Medve, Secretary for Renaissance. Medve attached to his affidavit Exhibits A

       through S, which consist of printed pages from Aquatherm websites, including

       pages from GmbH and Aquatherm, LP’s respective sites, answers to discovery

       requests, and warranty documentation. GmbH’s website (www.aquatherm.de)

       includes a link, represented by a United States flag, for United States customers

       to click. Medve explained that when a user clicks the flag, a pop-up window

       appears which states, “Aquatherm LP is the exclusive sales representative of

       acquatherm GmbH for the USA and Canada” and, to proceed, the interested

       user is to click “Enter site” link. Id. at 126, 134. Once a user clicks “Enter

       site,” he/she enters the www.aquatherm.com website, which welcomes users to

       Aquatherm and, among other things, provides tabs for one to “Read about

       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020       Page 7 of 26
       Aquatherm”, “See Aquatherm in action”, “Learn about Aquatherm”, “Install

       Aquatherm systems,” and “Design with Aquatherm.” Id. at 136.


[12]   The various attached web pages discuss Aquatherm companies including

       GmbH, noting that GmbH “placed first” in a German research study that

       collected data and assessed promising and innovative companies, was

       established in 1973, and “Today Aquatherm employs more than 450 employees

       at its four main locations.” Id. at 141. When describing “Our Organization”

       for users, one webpage states, “Aquatherm began its major launch into the

       United States” in 2007 and, as of 2013, it had seventeen companies serving as

       manufacturer’s representatives in the United States and “distribution in every

       state.” Id. at 173. Another page has a map of Indiana counties and states “This

       area has multiple sales and support reps.” Id. at 165. The website pictures

       many “current projects” around the globe, with a picture and location for each,

       including one in Indianapolis, the Lifeline Data Center. Id. at 144, 152. The

       Lifeline Data Center project is featured elsewhere on the site, with a testimonial

       from Lifeline’s owner and describing the Lifeline project as being multi-phase

       between the years 2009 and 2013. For further information on matters viewed

       on the website, a user is directed to call a phone number “or simply visit our

       download area at our website www.aquatherm.de.” Id. at 163.


[13]   Upon clicking the “Learn about Aquatherm” tab, the website states:


               We here at Aquatherm aren’t content with simply telling people
               how great our products are. We show it by providing an
               extensive ten-year warranty that covers any parts, labor, personal

       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020      Page 8 of 26
               injury, and incidental damages caused by material failure due to
               manufacturer defect. The warranty covers the pipes, fittings, and
               damages up to €20 million per event.


               In order to take advantage of the warranty, the system must be
               installed by an Aquatherm-trained installer and subjected to
               pressure testing. The pressure test will stress the system and help
               identify any weak points due to improper fusions or other
               reasons.


       Id. at 176.


[14]   Medve’s affidavit averred that the ten-year warranty “is issued by Aquatherm

       GmbH through Aquatherm.” Id. at 129. In support, he attached a “Warranty

       Receipt”, which was produced in discovery by Aquatherm, LP to Renaissance,

       dated February 8, 2013 on “aquatherm” letterhead. The Warranty Receipt

       reflected that “Aquatherm GmbH provides a 10-year warranty on its products

       with business liability insurance and extended product liability insurance

       through ZURICH” and states that warranty claims “are valid only under the

       following conditions”:


               1. Only welding tools and devices approved by Aquatherm
               GmbH may be used in installation.


               2. Installers must be certified as having received training from
               Aquatherm. Installers must adhere to Aquatherm GmbH
               technical rules and guidelines for correct installation.


               3. Upon completion of a project, a record of a successful pressure
               test must be submitted to Aquatherm.


       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020        Page 9 of 26
       Id. at 216. The attached confirmation of coverage documentation from Zurich

       stated that “risks insured” included “Exports; also to the USA and Canada.”

       Id. at 217. Medve averred in his affidavit that the warranty “was a

       determinative factor in choosing [] GmbH pipes for the [] Towers project.” Id.

       at 128.


[15]   An online “Explanatory Comments on the Aquatherm GmbH Warranty”

       document, which Medve attached to his affidavit, stated “Thank you very

       much for making the decision to use a product from aquatherm GmbH,

       Germany (herein referred to as ‘aquatherm’)” and thereafter provided

       information about, inter alia, the scope of the warranty, what is covered and not

       covered, how compensation is determined, and required manner of making a

       claim. Id. at 219. As to “how [] the amount of compensation under the

       aquatherm warranty [is] determined,” it stated, “Working in collaboration with

       aquatherm GmbH and the insured party, aquatherm will identify the cause of

       the damage[.]” Id. The document directed that “[w]arranty claims have to be

       made to aquatherm via the national aquatherm GmbH partners.” Id. at 220.

       The Explanatory Comments document reflected it was prepared by GmbH in

       April 2016.


[16]   A portion of an Installers Manual, which was attached to Medve’s affidavit and

       also provided during discovery, listed immediately next to each other the

       respective names, addresses, and websites of GmbH and Aquatherm L.P.

       companies. Renaissance asserted that this, and the other website evidence,



       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020    Page 10 of 26
       illustrated the two companies were related in terms of manufacture,

       distribution, installation, and warranty of the GmbH pipes.


[17]   The trial court held a hearing on GmbH’s motion to dismiss on February 7,

       2019. GmbH argued that once the distributors took the pipe, they, not GmbH,

       had “title, ownership, responsibility, risk of loss, everything on the pipe from

       that point forward[.]” Transcript at 9. GmbH maintained that, under case law,

       just having GmbH pipe end up in Indiana through the stream of commerce did

       not give Indiana personal jurisdiction, general or specific, over it. As to website

       and online presence, GmbH argued that its website and marketing was part of a

       passive nationwide advertising plan, consisting of general information, and did

       not involve interaction between consumer and the company, and under those

       circumstances, did not support personal jurisdiction. As to its warranty, GmbH

       asserted that having a warranty did not reflect that GmbH had actively placed

       itself in Indiana to create sufficient minimum contacts to confer personal

       jurisdiction.


[18]   Renaissance responded with argument that while any of those factors

       individually might not support personal jurisdiction, GmbH had engaged in an

       “active coordinated effort” that was sufficient to support a finding of personal

       jurisdiction. Id. at 20. Counsel urged, “[I]t’s that warranty in combination

       with, not alone, but in combination with an active marketing scheme to

       penetrate the whole [] country.” Id. at 23. Renaissance contended that GmbH

       manufactured a product that it intended to be used in the United States,

       including Indiana, and it marketed and warranted those products. Renaissance

       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020      Page 11 of 26
       highlighted that the GmbH website marketed the fact that one or more projects

       were installed in Indiana and that it had sales representatives in Indiana.


[19]   On February 8, 2019, the trial court issued an order denying GmbH’s motion to

       dismiss. The court recognized Indiana Trial Rule 4.4(A) as the starting point

       for determining personal jurisdiction and that this state may only exercise

       jurisdiction if it is not inconsistent with the Indiana and United States

       Constitutions, including the Fourteenth Amendment pursuant to which the

       defendant must “have certain minimum contacts with the state such that the

       maintenance of the suit does not offend traditional notions of fair play and

       substantial justice, LinkAmerica [Corp. v. Cox, 857 N.E.2d 961, 967 (Ind 2006)];

       Boyer [v. Smith, 42 N.E.3d 505, 509 (Ind. 2015)].” Appellant’s Appendix Vol. II at

       20. The trial court determined that although GmbH’s “coordinated, systematic,

       marketing plan” might alone not be enough of a minimum contact “to avoid

       offending traditional notions of fair play and substantial justice,” that marketing

       plan, combined with GmbH’s ten-year manufacturer’s warranty issued to

       Renaissance put GmbH “on notice that a breach of warranty” “might make it

       liable in our courts.” Id. At GmbH’s request, the trial court certified its order

       for interlocutory appeal, 4 over Renaissance’s objection, and we accepted

       jurisdiction.




       4
           The trial court stayed all trial proceedings as to GmbH only.


       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020         Page 12 of 26
                                         Discussion and Decision

                                           I. Standard of Review
[20]   GmbH asserts that the trial court should have granted its motion to dismiss

       based on lack of personal jurisdiction. Personal jurisdiction refers to a court’s

       power to impose judgment on a particular defendant. Boyer, 42 N.E.3d at 509.

       Because Indiana courts are courts of general jurisdiction, jurisdiction is

       presumed. Everdry Mktg. and Mgmt., Inc. v. Carter, 885 N.E.2d 6, 10 (Ind. Ct.

       App. 2008). A challenge to personal jurisdiction may be raised either as an

       affirmative defense or in a motion to dismiss. See Boyer, 42 N.E.3d at 508 n.1.

       “When a defendant challenges the existence of personal jurisdiction, the

       plaintiff must present evidence of the court’s personal jurisdiction over the

       defendant.” Wolf’s Marine, Inc. v. Brar, 3 N.E.3d 12, 15 (Ind. Ct. App. 2014).

       “The defendant, however, bears the ultimate burden of proving lack of personal

       jurisdiction by a preponderance of the evidence, unless such lack is apparent on

       the face of the complaint.” 5 Id.




       5
         GmbH states that “there appears to be a split in authority among Indiana cases” with regard to which party
       has the burden of proof as to jurisdiction. Appellant’s Brief at 15. GmbH’s suggestion in that regard is based
       on the fact that our Supreme Court in LinkAmerica Corp. v. Cox, 857 N.E.2d 961, 967 (Ind. 2006), stated that
       personal jurisdiction must comport with the federal due process clause. GmbH suggests that this was
       effectively a directive that Indiana courts should follow the federal analysis – where “the plaintiff . . . bears
       the burden of establishing personal jurisdiction.” Appellant’s Brief at 15. We do not find that LinkAmerica’s
       statement was an instruction to follow the federal analysis, nor do we discern a split among Indiana courts
       concerning the burden of proof.



       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020                                Page 13 of 26
[21]   We review a trial court’s decision regarding personal jurisdiction de novo.

       Boyer, 42 N.E.3d at 508. We do not defer to the trial court’s legal conclusion as

       to whether personal jurisdiction exists. Everdry, 885 N.E.2d at 10. However,

       whether personal jurisdiction exists can depend upon factual determinations

       concerning a defendant’s contacts with the forum state, and when the trial court

       issues findings of jurisdictional facts, we review those findings for clear error.

       Boyer, 42 N.E.3d at 509. In so doing, we consider whether the evidence

       supports the findings and whether the findings support the judgment. Id. We

       will reverse the trial court’s factual findings only when the record contains no

       facts to support them either directly or indirectly. Id. (citing Fischer v. Heymann,

       12 N.E.3d 867, 870 (Ind. 2014)).


                                       II. Personal Jurisdiction
[22]   Indiana Trial Rule 4.4(A) is Indiana’s equivalent of a “long-arm statute.” It

       enumerates eight specific acts that may serve as a basis for an Indiana trial

       court’s assertion of personal jurisdiction over a nonresident and further provides

       that “a court of this state may exercise jurisdiction on any basis not inconsistent

       with the Constitutions of this state or the United States.” Our Supreme Court

       in LinkAmerica determined that the catchall language “was intended to, and

       does, reduce analysis of personal jurisdiction to the issue of whether the

       exercise of personal jurisdiction is consistent with the Federal Due Process

       Clause.” LinkAmerica, 857 N.E.2d at 967. The Due Process Clause of the

       Fourteenth Amendment requires that a defendant have “certain minimum

       contacts with [the forum state] such that the maintenance of the suit does not

       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020       Page 14 of 26
       offend traditional notions of fair play and substantial justice.” Id. (quoting Int’l

       Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)); see also Boyer, 42 N.E.3d at 507.

       Contacts are any acts physically performed in the forum state or acts performed

       outside the forum state that have an effect within the forum. Wolf’s Marine, Inc.,

       3 N.E.3d at 15 (quotations omitted).


[23]   There are two types of personal jurisdiction, specific or case-linked jurisdiction

       and general or all-purpose jurisdiction. See Simek v. Nolan, 64 N.E.3d 1237,

       1242 (Ind. Ct. App. 2016). The plaintiff need not prove the existence of both

       types of jurisdiction, as either one is sufficient. Everdry, 885 N.E.2d at 12. “[I]f

       the defendant has contacts with the forum state sufficient for general or specific

       jurisdiction, due process requires that the assertion of personal jurisdiction over

       the defendant is reasonable.” LinkAmerica, 857 N.E.2d at 967; see also Wolf’s

       Marine, Inc., 3 N.E.3d at 15 (if a defendant has contacts sufficient for general or

       specific jurisdiction, “courts must then evaluate whether the exercise of

       personal jurisdiction offends traditional notions of fair play and substantial

       justice”).


[24]   GmbH argues that the trial court has neither general nor specific personal

       jurisdiction over GmbH, “a foreign manufacturer that has absolutely no

       physical presence in Indiana and does not distribute or sell any pipe . . . directly

       to Indiana,” and therefore the claims in the amended complaint against GmbH

       should be dismissed. Appellant’s Brief at 14. Renaissance, on the other hand,

       maintains that GmbH “purposefully availed itself of conducting business in

       Indiana and the facts establish that the court has both general and specific

       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020       Page 15 of 26
       jurisdiction over it.” Appellee’s Brief at 20. We discuss each type of jurisdiction,

       in turn, as needed.


                                      a. General Personal Jurisdiction

[25]   General personal jurisdiction arises when a defendant’s contacts are “so

       ‘continuous and systematic’ that the defendant should reasonably anticipate

       being haled into the courts of the state for any matter, . . . even in causes of

       action unrelated to the defendant’s contacts with the foreign state.” Sebring v.

       Air Equip. & Eng’g, Inc., 988 N.E.2d 272, 275 (Ind. Ct. App. 2013). The contacts

       required for general personal jurisdiction are greater than those needed to

       establish specific personal jurisdiction. Wolf’s Marine, 3 N.E.3d at 15; North

       Texas Steel Co. v. R.R. Donnelley & Sons Co., 679 N.E.2d 513, 519 (Ind. Ct. App.

       1997) (“[c]ourts are more demanding when jurisdiction is sustained only on a

       basis of general jurisdiction”), trans. denied, cert. denied (1998).


[26]   In North Texas Steel Co., this court, in determining that the defendant did not

       have a systematic and continuous presence in Indiana, and no general personal

       jurisdiction existed, observed that there was no evidence of direct advertising or

       solicitation of Indiana residents and defendant did not have offices, employees,

       agents or property in Indiana. Similarly, in Brokemond v. Marshall Field & Co.,

       612 N.E.2d 143, 145 (Ind. Ct. App. 1993), the court determined that

       advertising, delivering merchandise, collecting Indiana sales tax, and

       distributing credit cards in Indiana were insufficient to obtain general personal

       jurisdiction over an out-of-state defendant. Id. at 146.


       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020       Page 16 of 26
[27]   In the present case, we agree with GmbH that its contacts are not so continuous

       and systematic that it would reasonably anticipate being haled into court in

       Indiana on any matter including one unrelated to the Renaissance lawsuit.

       That is, we do not find that GmbH’s contacts are sufficient to confer general

       personal jurisdiction. We thus turn to whether its contacts support specific

       personal jurisdiction.


                                       b. Specific Personal Jurisdiction

[28]   A court may exercise specific personal jurisdiction over a defendant if the suit-

       related conduct is related to or arises out of the defendant’s conduct within or

       directed to Indiana. Boyer, 42 N.E.3d at 511. “In other words, specific

       jurisdiction requires purposeful availment.” Simek, 64 N.E.3d at 1242. When

       determining whether a court has specific personal jurisdiction over a defendant,

       courts consider the following factors: (1) whether the plaintiff’s claim arises

       from the defendant’s forum contacts; (2) the overall contacts of the defendant or

       its agent with the forum state; (3) the foreseeability of being haled into court in

       that state; (4) who initiated the contacts; and (5) whether the defendant

       expected or encouraged contacts with the state. Id. at 1243. The inquiry into

       whether a forum state may assert specific jurisdiction “‘focuses on the

       relationship among the defendant, the forum, and the litigation.’” Prof’l Billing,

       Inc. v. Zotec Partners, LLC, 99 N.E.3d 657, 661 (Ind. Ct. App. 2018) (quoting

       Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014)). A single contact with the forum

       state may be sufficient to establish specific jurisdiction over a defendant if it

       creates a substantial connection with the forum state and the suit is related to

       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020        Page 17 of 26
       that connection. Simek, 64 N.E.3d at 1243. However, a defendant cannot be

       haled into a jurisdiction “solely as a result of random, fortuitous, or attenuated

       contacts or of the unilateral activity of another party or a third person.”

       LinkAmerica, 857 N.E.2d at 967.


[29]   GmbH maintains that Indiana does not have specific personal jurisdiction over

       it, arguing, “GmbH’s strict manufacturing role in the process at issue began and

       ended in Europe” and that it “does not have any sales representatives or

       distributors in the United States and absolutely no involvement in the decision-

       making process regarding the marketing, resale and use of the product in the

       United States.” Appellant’s Brief at 37. In support, GmbH directs us to Sebring,

       988 N.E.2d at 280, where the court determined that an out-of-state

       manufacturer defendant was not subject to jurisdiction.


[30]   In that case, Sebring filed a complaint in 2012 after several of his fingers were

       amputated due to the alleged malfunction of a dust collector that he was using

       during his employment at OmniSource, a company in Fort Wayne. Sebring

       sued Donaldson Company, Inc., a Delaware corporation that manufactured the

       dust collector at its plant in Kentucky, and NCI, a Texas corporation, that

       manufactured a component (screw conveyor) for the dust collector in Texas.

       NCI filed a motion to dismiss for lack of personal jurisdiction, and in support it

       submitted the affidavit of its president stating, among other things, that NCI did

       not have employees or facilities in Indiana, it had a national advertising

       program that may have been directed to Indiana between March 1991 and

       October 1993 (but not since then), since January 2003 NCI had not had a sales

       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020       Page 18 of 26
       representative or distribution network in Indiana, Donaldson directed and

       arranged to ship the component to Fort Wayne, and NCI did not install or

       inspect the component at OmniSource and never had any contact with

       OmniSource or Sebring.


[31]   On appeal, Sebring conceded that general jurisdiction did not apply but argued

       that Indiana had specific personal jurisdiction. The Sebring court held that

       NCI’s contacts with Indiana were too attenuated to support specific

       jurisdiction. The manufacturing process of the component part took place

       entirely within Texas, the decision to ship the screw conveyor to Indiana “was

       made unilaterally by Donaldson,” and, “[i]n sum, it appears that NCI played

       no role in the decision to ship the screw conveyor to Indiana and its

       involvement in the transaction was complete when it tendered the screw

       conveyor to the carrier in Texas.” Id. at 276. The Sebring court found that a

       defendant must do “something more” than placing a product in the stream of

       commerce. Id. at 280. The Sebring court’s “something more” analysis relied on

       Justice Breyer’s concurring opinion in J. McIntyre Mach., Ltd. v. Nicastro, 131 S.

       Ct. 2780 (2011).


[32]   In J. McIntyre, the plaintiff Robert Nicastro, who worked in New Jersey, injured

       his hand while using a machine manufactured by a British company, J.

       McIntyre, and he filed a products liability case against J. McIntyre in New

       Jersey. The New Jersey Supreme Court found that personal jurisdiction existed

       relying primarily on the following three facts: (1) J. McIntyre’s American

       distributor sold and shipped a machine to a New Jersey customer, at most, four

       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020      Page 19 of 26
       times; (2) J. McIntyre permitted and desired that its independent American

       Distributor sell its machines to anyone in the United States willing to buy them;

       and (3) representatives of J. McIntyre attended trade shows in such cities as

       Chicago, Las Vegas, New Orleans, Orlando, San Diego, and San Francisco

       (but not in New Jersey). The New Jersey Supreme Court held that its courts

       “can exercise jurisdiction over a foreign manufacturer of a product so long as

       the manufacturer knows or reasonably should know that its products are

       distributed through a nationwide distribution system that might lead to those

       products being sold in any of the fifty states.” Id. at 2785 (quotation omitted).


[33]   A plurality of the United States Supreme Court disagreed and found that New

       Jersey did not have personal jurisdiction as the facts did not show that McIntyre

       engaged in any activities in New Jersey that revealed an intent to invoke or

       benefit from the protection of the state’s laws, i.e., it did not purposefully avail

       itself of the New Jersey market. Justice Breyer, joined by another justice,

       concurred in the judgment, and, as quoted by the Sebring court, stated, in part:


               [T]here is no “something more,” such as special state-related
               design, advertising, advice, marketing, or anything else. Mr.
               Nicastro, who here bears the burden of proving jurisdiction, has
               shown no specific effort by the British Manufacturer to sell in
               New Jersey. He has introduced no list of potential New Jersey
               customers who might, for example, have regularly attended trade
               shows. And he has not otherwise shown that the British
               Manufacturer “purposefully avail[ed] itself of the privilege of
               conducting activities” within New Jersey, or that it delivered its
               goods in the stream of commerce “with the expectation that they
               will be purchased” by New Jersey users.


       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020        Page 20 of 26
       Sebring, 988 N.E.2d at 278 (quoting McIntyre, 131 S. Ct. at 2792). GmbH

       argues that the “something more” standard was not met in this case and that it

       did “nothing more than place its product in the stream of commerce.”

       Appellant’s Brief at 28. We disagree.


[34]   Initially, we observe that, unlike in Sebring, GmbH did not manufacture a

       component that was used in some other final product whose manufacturer

       shipped it elsewhere. Rather, GmbH delivered its completed product in the

       stream of commerce with the expectation that it would be purchased in various

       states, including Indiana. Its website linked interested United States users to

       www.aquatherm.com, which advertised a presence in the United States and

       specifically identified an Indianapolis company currently using its pipes, the

       Lifeline Data Center. The site also discussed GmbH, its history, growth,

       products, current projects using the pipe and different applications, and the ten-

       year warranty that GmbH provided.


[35]   GmbH acknowledges that, in some cases, a website and national marketing

       may support contacts with a forum state, but argues that under Elayyan v. Sol

       Melia, SA, 571 F. Supp. 2d 886 (N.D. Ind. 2008), GmbH’s website does not

       create sufficient presence in Indiana to subject GmbH to specific personal

       jurisdiction. In that case, Elayyan, an Indiana resident, was injured while in

       Mexico in a hotel’s outdoor pool. Defendant Sol Melia was a Spanish

       corporation that was the owner of the Puerta Vallarta hotel where Elayyan was

       injured, and the other defendant was Sol Group, a Delaware corporation with

       its principal place of business in Florida, that provided marketing, sales, and

       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020     Page 21 of 26
       other services to companies associated with Sol hotels located outside of the

       United States. The defendants filed separate motions to dismiss, and Elayyan

       did not timely file a response. The trial court granted the uncontested motions

       to dismiss.


[36]   On appeal, the Elayyan court, in deciding whether personal jurisdiction could be

       properly exercised over the defendants based on their websites, utilized a three-

       step sliding scale test established in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.

       Supp. 1119, 1124 (W.D. Pa. 1997). The Zippo test categorizes websites as (i)

       passive sites, through which defendants provide basic information but “do[]

       little more than make information available”, (ii) interactive sites, which “allow

       users to exchange information with the host” operator, or (iii) transactional

       sites, where a defendant “clearly does business over the Internet” such as

       entering into contracts with residents of a foreign jurisdiction. Id. Passive sites

       are not grounds for the exercise of personal jurisdiction, transactional sites

       confer automatic jurisdiction, and interactive sites require examination of “the

       level of interactivity and commercial nature of the exchange of information that

       occurs on the Web site.” Id. In affirming the trial court’s grant of the motion to

       dismiss, the Elayyan court observed that Sol Melia’s website was targeted at a

       worldwide audience, allowed users to make reservations directly with Sol-brand

       hotels, and did not target Indiana residents or use the word “Indiana” anywhere

       on the site. As to Sol Group’s website, it was targeted at its employees and

       professionals affiliated with the Sol-brand hotels and the public could not

       exchange information with Sol Group on the site. Elayyan had booked his


       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020        Page 22 of 26
       travel through a travel agent, and had not accessed information through either

       of the defendants’ websites.


[37]   In the present case, GmbH urges that on the Zippo sliding scale analysis, its

       website or online presence was, at best, “passive” and insufficient to subject it

       to personal jurisdiction in Indiana. We disagree with this characterization and,

       instead, find that the site was “interactive.” GmbH’s site, www.aquatherm.de,

       directed users interested in United States applications of the pipe to click a flag

       which took the user to www.aquatherm.com. There, the user was advised of

       the existence of sales representatives in Indiana and invited to click for further

       information. It offered the opportunity to subscribe to e-newsletters, had real-

       time chat boxes available on different pages, showcased an ongoing project in

       Indiana, and advised of the availability of Indiana distributors. We find this

       distinguishable from the situation and the websites in Elayyan.


[38]   Additionally, GmbH’s manufacturer’s warranty, which was promoted online,

       did not attach automatically to each and every product, but, rather, would

       become effective only after GmbH received verification that the product had

       been installed by certified installers pursuant to outlined criteria and a

       successful pressure test had been conducted by an approved tester and

       submitted. The warranty required that, in the event of a material failure,

       Aquatherm NA would collect samples of damaged product and would work “in

       collaboration with aquatherm GmbH” to identify the cause of the damage and

       that a claim had to “be made to aquatherm via the national aquatherm GmbH

       partners.” Appellant’s Appendix Vol. II at 219-20. GmbH would review the

       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020          Page 23 of 26
       information for compliance and, if complete, issue a warranty to the buyer.

       The warranty thus necessitated GmbH’s continued involvement with the end-

       user of its product. Medve averred that GmbH’s warranty was part of

       Renaissance’s decision to use GmbH product.


[39]   Renaissance’s claims against GmbH arise from these contacts, and,

       accordingly, we find that asserting jurisdiction would not be based on random,

       fortuitous, or attenuated contact with Indiana. Considering the relationship

       “among the defendant, the forum, and the litigation,” Zotec Partners, 99 N.E.3d

       at 661, we find that GmbH’s activities, including its online presence and

       warranty, reflect that it expected or encouraged contacts with Indiana and that

       it has sufficient contacts with Indiana to support specific personal jurisdiction.

       See North Texas Steel, 679 N.E.2d at 519 (finding that Texas manufacturer of

       storage rack systems had purposefully availed itself of the privilege of

       conducting business in Indiana, and Indiana had specific personal jurisdiction

       over it, where manufacturer had shipped the racks to Indiana, through a

       relationship with its distributor, and did so with knowledge that the product

       was for use by a Warsaw, Indiana company).


[40]   Having so found, we next move to the “reasonableness” inquiry. See Wolf’s

       Marine, Inc., 3 N.E.3d at 16 (fairness inquiry is separate from the contacts

       question and may be used to defeat jurisdiction even if defendant has sufficient

       contacts with forum state). In determining the reasonableness of exercising

       jurisdiction over a defendant, courts consider the following five factors: (1) the

       burden on the defendant; (2) the forum State’s interest in adjudicating the

       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020        Page 24 of 26
       dispute; (3) the plaintiff’s interest in obtaining 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 social policies. LinkAmerica, 857 N.E.2d at

       967-68 (quoting Burger King. Corp. v. Rudzewicz, 471 U.S. 462, 476-77 (1985)).

       These interests must be balanced and weighed to make certain that asserting

       jurisdiction is fair in a particular case.


[41]   GmbH sold its product (completed pipe) that was intended for use in the United

       States to Aquatherm NA or Aquatherm, LP, which marketed and sold the pipe

       to, among others, Columbia Pipe. An extensive amount of GmbH pipe was

       installed in the Towers, two ten-story buildings that house residents. As the

       Towers encountered failures with the pipe, the water supply to residents, which

       Renaissance states in its complaint were elderly individuals, was affected. We

       find that under these circumstances Indiana has an interest in adjudicating the

       dispute. According to Renaissance, all the defendants named in the lawsuit,

       but for GmbH, have consented to jurisdiction in Indiana, and thus Indiana

       would provide the most convenient and effective location for plaintiff to seek

       and obtain relief. GmbH has not established or expressly argued the existence

       of a burden in litigating the matter in Indiana. Judicial economy favors

       deciding the action in a single action. See North Texas Steel, 679 N.E.2d at 519

       (recognizing the interstate judicial system’s interest “in the resolution, in a

       single action, of a controversy involving parties from four states”). We




       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020        Page 25 of 26
       conclude that Indiana’s exercise of specific personal jurisdiction over GmbH

       would be fair and comport with federal due process requirements.


[42]   Judgment affirmed.


       Robb, J. and Bradford, C.J., concur.




       Court of Appeals of Indiana | Opinion 19A-PL-981 | January 21, 2020   Page 26 of 26
