       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                 IN AND FOR NEW CASTLE COUNTY


CHARLES HERMAN.                      )
                                     )
                  Plaintiff,         )
                                     )
             v.                      )
                                     )    C.A. No. N13C-11-105 CLS
BRP, INC., BRP US, INC.,             )
TELEFLEX CANADA LIMITED              )
PARTNERSHIP, TELEFLEX                )
CANADA, INC., KONGSBERG,             )
INC. (F/K/A TELEFLEX                 )
MEGATECH, INC.), and                 )
KONGSBERG AUTOMOTIVE                 )
HOLDING ASA.                         )
                                     )
                  Defendants.        )


                          Date Decided: April 13, 2015

On Defendant Kongsberg Automotive Holding ASA’s Motion to Dismiss for Lack
                       of Jurisdiction. GRANTED.

                                  OPINION


Kevin J. Connors, Esquire, 1220 North Market Street, Wilmington, Delaware,
19899. Attorney for Defendant Kongsberg Automotive Holding ASA.

Timothy E. Lengkeek, Esquire, 1000 North King Street, Wilmington, Delaware,
19801. Attorney for Plaintiff.




Scott, J.
       Defendant Kongsberg Automotive Holding ASA (“Kongsberg Holding”)

has moved to dismiss Plaintiff Charles Herman’s (“Plaintiff”) First Amended

Complaint for lack of personal jurisdiction pursuant to Del. Super. Ct. R. 12(b)(2)

and based on Delaware’s long-arm statute, 10 Del. C. § 3104(c). For the following

reasons, Defendant Kongsberg Holding’s Motion to Dismiss is GRANTED.

                                        Background

       I. The Present Action

       Plaintiff has alleged claims of strict products liability1 and negligence

against Defendants BRP, Inc. (“BRP”), BRP US, Inc. (“BRP US”), Teleflex

Canada Limited Partnership (“Teleflex Canada”), Teleflex Canada, Inc.

(“Teleflex”), Kongsberg, Inc. (f/k/a Teleflex Megatech, Inc.) (“Kongsberg”), and

Kongsberg Holding. Plaintiff’s Complaint is based upon personal injuries Plaintiff

allegedly sustained as a result of a motor vehicle accident that occurred on August

8, 2012 in Sturgis, South Dakota. Plaintiff alleges that while participating in a test

drive of a 2012 Can-Am Spyder Roadster, which was then owned by Defendant

BRP US, the vehicle and/or its steering mechanism malfunctioned or failed to turn,

causing it to run off the road and crash. Defendants Kongsberg Holding and

Kongsberg each filed a motion to dismiss Plaintiff’s Complaint for lack of personal

jurisdiction on April 10, 2014.

1
 The Court does not address the issue in this opinion, but notes that Delaware law does not
provide for claims sounding in strict products liability.
                                               2
       On July 10, 2014, Plaintiff filed his First Amended Complaint, which brings

the same causes of action as the original Complaint. To address the jurisdiction

issue, Plaintiff’s First Amended Complaint alleges that Kongsberg Holding and

Kongsberg have consented to jurisdiction or waived any jurisdictional challenge,

or alternatively, have sufficient minimum contacts with Delaware to comport with

10 Del. C. § 3104 and Constitutional Due Process. On September 12, 2014,

Defendants Kongsberg Holding and Kongsberg each filed a Motion to Dismiss

Plaintiff’s First Amended Complaint pursuant to Superior Court Rule 12(b)(2) for

lack of personal jurisdiction.2

       Plaintiff is a resident of North Carolina. Defendant Kongsberg Holding is a

non-operational Norwegian holding company, and the parent corporation of

Defendant Kongsberg.           Plaintiff and Defendant Kongsberg Holding are the

relevant parties to this motion to dismiss. Defendant Kongsberg, a Canadian

corporation and subsidiary of Defendant Kongsberg Holding, is a relevant

nonparty to this motion to dismiss. Defendant Teleflex, a Delaware corporation

with its principal place of business in Limerick, Pennsylvania, is also a relevant

nonparty to this motion to dismiss.



2
 Pursuant to an Order dated March 24, 2015, Plaintiff’s First Amended Complaint was
dismissed against Defendant Kongsberg on the basis that this Court lacks personal jurisdiction
over Defendant Kongsberg. For that reason, the remainder of this opinion addresses only
Defendant Kongsberg Holding’s motion to dismiss.
                                               3
    II. The Earlier Delaware Action 3

       On June 5, 2009, Kongsberg Holding filed its Complaint against Teleflex in

the United States District Court for the District of Delaware (“the Earlier Delaware

Action”). 4 The Complaint alleged three counts of breach of contract by Teleflex.

The bases for these breaches were the Purchase Agreement, entered into by

Kongsberg Holding and Teleflex on October 14, 2007, and a Supply Agreement

for Marine and Power Products (“Supply Agreement”), which was entered into by

Kongsberg Holding and Teleflex on December 7, 2007. 5 The Supply Agreement

was one of a series of subsequent agreements entered into pursuant to, and as

exhibits to, the Purchase Agreement. 6              In its Complaint, Kongsberg Holding

generally alleged that, in the Purchase Agreement, Teleflex agreed to indemnify

Kongsberg Holding for losses arising or resulting from any breach of any covenant


3
  See Kongsberg Automotive Holding ASA v. Teleflex, Inc., C.A. No. 09-414-GMS (D. Del.). On
the record before the Court, the original Complaint filed by Kongsberg Holding against Teleflex
in the Earlier Delaware Action is the only document from which the Court can identify the legal
claims, and their bases, involved in that action. (D.I. 74, Exhibit A). Plaintiff also submitted a
Kongsberg Holding motion and appendix to which contained a supplemental final pre-trial order
(together “the Exhibits”) from the Earlier Delaware Action to suggest that Kongsberg Holding’s
suit there concerned the defective Can-Am Spyder involved in the Present Action. (D.I. 74,
Exhibits C & D). However, the Exhibits merely reference additional claims and counterclaim in
the Earlier Delaware Action, which were apparently brought in one or more amended
complaints. Moreover, both documents as submitted here are incomplete, as multiple pages are,
inexplicably, missing from throughout each. For these reasons, the Court will not rely on any
partial information contained in the Exhibits, and discusses only the original Complaint filed by
Kongsberg Holding against Teleflex in the Earlier Delaware Action.
4
  Kongsberg Automotive Holding ASA’s Complaint, C.A. No. 09-414-GMS (D. Del. Jun. 5,
2009); D.I. 74, Exhibit A.
5
  Id. at ¶¶ 8-11.
6
  Id. at ¶¶ 10-11.
                                                4
or obligation set forth in the agreement, which consisted of the Purchase

Agreement and its appendices, exhibits, and disclosure letters.7

        More specifically, Count I of the Complaint alleged that, pursuant to the

Supply Agreement, Teleflex agreed to be Kongsberg Holding’s exclusive

distributor of specified products for sale in Australia and New Zealand. 8 The

Supply Agreement also contained a provision setting forth when and how Teleflex

was permitted to cancel any orders.9 Kongsberg Holding alleged that Teleflex

violated the Supply Agreement in 2008 by the way in which it cancelled a

particular order. 10

        Count II of the Complaint alleged that, when entering into the Supply

Agreement, Teleflex knowingly provided Kongsberg Holding with inaccurate

financial information, including product prices, which Kongsberg Holding later

discovered and demanded Teleflex remedy. 11 Kongsberg Holding alleged that

Teleflex’s refusal to remedy those alleged misrepresentations constituted a breach

of the Supply Agreement. 12

        Finally, Count III of the Complaint alleged that Teleflex breached its

contractual obligation under the Purchase Agreement to file certain tax returns in


7
  Id. ¶¶ 8-9.
8
  Id. ¶¶ 18-20.
9
  Id. ¶¶ 21-25.
10
   Id. at ¶¶ 26-32.
11
   Id. at ¶¶ 34-39.
12
   Id. at ¶¶ 40-41.
                                         5
the State of Texas and to pay all applicable taxes for the filing periods April 2001

through December 2004, and that this breach caused damages to Kongsberg

Holding. 13

          The relief Kongsberg Holding sought in the Complaint was, (1) an order for

Teleflex to indemnify Kongsberg Holding from all losses, damages, cost, and

expenses arising out of Teleflex’s breach of its covenants and obligations regarding

the cancelled product order, improper product pricing, and the Texas sales and use

tax audit; (2) an award of all damages arising from Teleflex’s breaches of the

Purchase Agreement and Supply Agreement; and (3) an award of costs and

attorneys fees for that action. 14

          From the record before the Court, it appears that resolution of the Earlier

Delaware Action is still pending in Delaware District Court.

                               Parties’ Contentions

          Defendant Kongsberg Holding asserts that Plaintiff’s First Amended

Complaint must be dismissed because this Court cannot properly exercise specific

or general personal jurisdiction over it. Kongsberg Holding argues that it lacks

both sufficient contacts with Delaware and connection to the present action to




13
     Id. at ¶¶ 42-51.
14
     Id. at 7.
                                           6
satisfy Delaware’s long arm statute, 10 Del. C. § 3104(c). 15                      Additionally,

Kongsberg Holding argues that its responses to Plaintiff’s discovery requests on

this jurisdictional issue further support that Kongsberg Holding lacks sufficient

contacts with Delaware to be subject to general personal jurisdiction in this Court.

Furthermore, Kongsberg Holding argues that it has not consented or waived its

challenge to jurisdiction in this State as a result of the Earlier Delaware Action

between Kongsberg Holding and Teleflex because both the parties and legal claims

involved in the Earlier Delaware Action and Present Action are substantially

unrelated. Therefore, Kongsberg Holding asserts that this Court cannot properly

exercise personal jurisdiction over it in this case.

       Plaintiff asserts that this Court may properly exercise personal jurisdiction

over Defendant Kongsberg Holding because Kongsberg Holding’s voluntary

efforts to litigate in the forum state constitutes consent to jurisdiction in this State.

Plaintiff argues that Kongsberg Holding contracted to litigate in the Delaware

forum for disputes arising from contracts relating to the Can-Am Spyder and then

initiated that litigation in Delaware District Court regarding those contracts.

Moreover, Plaintiff argues that Kongsberg Holding has insisted that the lawsuit

take place in Delaware by rejecting opportunities to stay the Earlier Delaware

Action and resolve that dispute in other forums where related litigation was

15
   Defendant cites the Declaration of its Chief Financial Officer, Trond Stabekk, as support for
this argument.
                                                7
pending. Plaintiff asserts that, for those reasons, Kongsberg Holding has availed

itself of the privileges of the judicial forum in Delaware.

                                   Standard of Review

       On a motion to dismiss for lack of in personam jurisdiction the plaintiff

bears the burden of showing a basis for the trial court's exercise of jurisdiction over

a nonresident defendant.16 In determining whether a plaintiff satisfies this burden,

Delaware courts will apply a two-prong analysis to the issue of personal

jurisdiction over a nonresident.17 The court must first consider whether Delaware's

long arm statute, 10 Del. C. § 3104(c), is applicable.18 Second, the court must

evaluate whether subjecting the nonresident to jurisdiction in Delaware violates the

Due Process Clause of the Fourteenth Amendment. 19 Due process requires the

court to determine whether the defendant has minimum contacts with the forum

state, and whether asserting personal jurisdiction comports with “traditional

notions of fair play and substantial justice.” 20 In other words, it must be “fair and

reasonable” for the court to exercise jurisdiction over the nonresident party. 21




16
   AeroGlobal Capital Mgmt., LLC v. Cirrus Indus., Inc., 871 A.2d 428, 437 (Del. 2005).
17
   Id., at 438; LaNuova D & B, S.P.A. v. Bowe Co., Inc., 513 A.2d 764, 769 (Del. 1986). See 10
Del. C. § 3104(c).
18
   Id.
19
   Id. (citations omitted).
20
   International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
21
   Aeroglobal Capital Mgmt., LLC v. Cirrus Indus., Inc., 2003 WL 77007, at *4 (Del. Super. Jan.
6, 2003).
                                               8
       When reviewing a motion to dismiss, 22 the Court must view the record in a

light most favorable to the nonmoving party. 23 The allegations of the complaint

are assumed to be true, and all reasonable inferences must be construed most

strongly in favor of the plaintiff.24 Additionally, the Court is not limited to the

pleadings and may consider affidavits, briefs, and the results of discovery. 25

When, as here, such discovery is complete, “the plaintiff must allege specific facts

supporting its position” that the nonresident defendant is subject to the court's

personal jurisdiction. 26    If the plaintiff cannot demonstrate that the court has

jurisdiction over the defendant based on the two-prong analysis, the court will

dismiss the action against the moving nonresident party for lack of personal

jurisdiction. 27

                                         Discussion

     I. Personal Jurisdiction

       Personal jurisdiction under the Delaware’s long arm statute, 10 Del. C. §

3104(c), is either specific or general. 28 Specific jurisdiction turns on the nexus




22
   See Del. Super. Ct. R. 12(b)(2).
23
   Aeroglobal Capital Mgmt., 2003 WL 77007, at *3.
24
   Id.
25
   Hartsel v. Vanguard Group, Inc., 2011 WL 2421003, *7 (Del. Ch. Jun. 15. 2011) aff'd, 38
A.3d 1254 (Del. 2012) cert. denied, 133 S. Ct. 32 (2012).
26
   See e.g., Sprint Nextel Corp. v. iPCS, Inc., 2008 WL 2737409 (Del. Ch. Jul. 14, 2008).
27
   Fischer v. Hilton, 549 F.Supp. 389, 392 (D. Del. 1982).
28
   Aeroglobal Capital Mgmt., 2003 WL 77007, at *4.
                                              9
between the nonresident defendant's Delaware contact and the cause of action, 29

and may be found where the plaintiff's claims arise out of the defendant's acts or

omissions within the State. 30 General jurisdiction, on the other hand, provides the

court with jurisdiction over a nonresident defendant regardless of whether there is

a nexus between the claim and the defendant's Delaware contacts with the forum

state.31 Instead, general jurisdiction is based on a persistent course of conduct

through which the nonresident defendant creates a general presence in Delaware. 32

       In this case, the Court cannot properly exercise specific personal jurisdiction

over Kongsberg Holding. 33             Kongsberg Holding entered into a Purchase

Agreement and two Supply Agreements with Teleflex in August of 2007. 34 It is

well settled law that “a contract between a Delaware corporation and a nonresident

to ... transact business outside Delaware, which has been negotiated without any

contacts with this State, cannot alone serve as a basis for personal jurisdiction over

the nonresident for actions arising out of that contract.”35 It is also well established


29
   See LaNuova, 513 A.2d 764.
30
   Aeroglobal Capital Mgmt., 2003 WL 77007, at *4. See 10 Del. C. §§ 3104(c)(1)-(3).
31
   LaNuova, 513 A.2d 764. See 10 Del. C. § 3104(c)(4).
32
   Id.
33
   See 10 Del. C. §§ 3104(c)(1)-(3).
34
   See Kongsberg Automotive Holding, ASA’s Answers to Plaintiff’s Second Set of
Interrogatories, at 3. Importantly, neither party to this motion asserts otherwise. Also in August
of 2007, Kongsberg Holding entered an agreement with E.I. Nemours & Co., which contained a
Delaware choice of law provision. Again, neither party here asserts that the business
transactions subject to this agreement took place within the State.
35
   Newspan, Inc. v. Hearthstone Funding Corp., 1994 WL 198721, *6 (Del. Ch. May 10,
1994); see Abajian v. Kennedy, 1992 WL 8794, *10 (Del. Ch. Jan. 17, 1992) (“It is well
established law that merely contracting with an entity that is incorporated within a forum state
                                                10
that a choice of Delaware law provision in a contract is not, of itself, a sufficient

transaction of business in the State to confer jurisdiction under § 3104(c)(1).36

Though Teleflex is a Delaware corporation and all three agreements contained

Delaware choice of law and venue provisions, the business transactions contained

in the agreements took place outside of Delaware.                  Moreover, Plaintiff and

Kongsberg Holding are nonresidents, and Plaintiff’s alleged injury occurred

outside of this State. Thus, Kongsberg Holding merely entering three contracts

with a Delaware corporation, which contain Delaware choice of law provisions,

without more, is not sufficient to establish specific jurisdiction over Kongsberg

Holding.

       Nor can the Court properly exercise general personal jurisdiction over

Kongsberg Holding. 37         “When a state exercises personal jurisdiction over a

defendant in a suit not arising out of or related to the defendant's contact with the

forum, the state has been said to be exercising ‘general jurisdiction’ over the

defendant.”38 In asserting such jurisdiction, the Sears court opined that “[i]n order



does not provide necessary connections between the contract and the forum to support a finding
of jurisdiction.”).
36
   Intellimark, Inc. v. Rowe, 2005 WL 2739500, *2-3 (Del. Super. Oct. 24, 2005) (holding that
the nonresident defendants' signatures on a promissory note, which contained a Delaware choice
of law provision, were not a sufficient transaction of business in this State to confer
jurisdiction); see also Summit Investors II, L.P. v. Sechrist Indus., Inc., 2002 WL 31260989, *4
(Del. Ch. Sept. 20, 2002) (holding that a Delaware choice of law provision is insufficient to
satisfy the Constitutional minimum contacts test).
37
   See 10 Del. C. § 3104(c)(4).
38
   Sears Roebuck & Co. v. Sears plc, et al., 744 F.Supp. 1289, 1304 (D. Del. 1990).
                                               11
to assert general jurisdiction, the defendant's activities in the forum must be

continuous and substantial.”39           Based on the additional discovery on this

jurisdictional issue and parties’ submissions, the Court finds an absence of any

contacts between Kongsberg Holding and Delaware that are regular, persistent, or

the source of substantial revenue. 40

       Moreover, the Court does not find exercising general jurisdiction over

Kongsberg Holding appropriate based on its status as the parent corporation to

Defendant Kongsberg. Personal jurisdiction over a foreign holding company may

not be exercised merely because of that corporation’s relationship with an

allegedly at-fault subsidiary, even if the subsidiary is itself a Delaware

corporation.41 In this case, Defendant Kongsberg Holding is a non-operational

Norwegian holding company.             Defendant Kongsberg is Kongsberg Holding’s

subsidiary that Plaintiff has alleged is at fault in this case. 42 However, Defendant


39
   Id. See Plumb v. Cottle, 492 F.Supp. 1330, 1334 (D. Del. 1980) (The court, in applying
subsection (c)(4) to the nonresident manufacturer of an allegedly defective lighting protection
system, stated because the corporation sold no lighting systems in Delaware, maintained no
branch offices in Delaware and did not have a license to do business in Delaware, it could not be
subject to suit in Delaware).
40
   See McElhaney v. Kelly-Moore Paint Co., 2013 WL 4829283, *4 (Del. Super. Aug. 14, 2013).
See Declaration of Kongsberg Holding’s Chief Financial Officer, Trond Stabekk.
41
   See Freres v. SPI Pharma, Inc., 629 F.Supp.2d 374, 385 (D. Del. 2009) (finding court lacked
personal jurisdiction over foreign parent of allegedly infringing subsidiary in patent case);
Monsanto Co. v. Syngenta Seeds, Inc., 443 F.Supp.2d 644-45 (D. Del. 2006) (finding court
lacked personal jurisdiction over foreign parent in antitrust case).
42
   As a non-operational holding corporation, Kongsberg Holding is merely the parent corporation
of Defendant Kongsberg, which Plaintiff alleges designed, manufactured and sold component
parts of the model motorcycle that allegedly injured Plaintiff. See Declaration of Kongsberg
Holding’s Chief Financial Officer, Trond Stabekk, at ¶¶ 18-20.
                                               12
Kongsberg is not a Delaware corporation, but rather a Canadian corporation

without personal jurisdiction contacts of its own that would support the exercise of

general personal jurisdiction over Kongsberg Holding. More importantly, this

Court has already granted Defendant Kongsberg’s motion to dismiss for lack of

personal jurisdiction.43

        Therefore, Plaintiff has failed to meet the standards of Delaware’s long-arm

statute to establish that this Court may exercise general personal jurisdiction over

Defendant Kongsberg Holding. Furthermore, the Court finds no evidence that

would satisfy the Constitutional minimum contacts requirement because

Kongsberg Holding does not have “continuous and systematic” contacts with

Delaware so as to render Kongsberg Holding “at home” in this State. 44

     II. Consent to Personal Jurisdiction

        The Court has found that it cannot properly exercise personal jurisdiction

over Kongsberg Holding. As such, the only remaining issue for the Court to

decide is whether Kongsberg Holding has consented or waived its challenge to

Delaware jurisdiction as a result of the Earlier Delaware Action with Defendant

Teleflex in the District Court of Delaware. To resolve this issue, the Court must




43
 See Order dated March 24, 2015.
44
  Daimler AG v. Bauman, 134 S.Ct. 746, 761 (2014). See Declaration of Kongsberg Holding’s
Chief Financial Officer, Trond Stabekk.
                                            13
determine whether the Present Action and Earlier Delaware Action are sufficiently

related to constitute Kongsberg Holding’s consent to jurisdiction in this State.

       Personal jurisdiction over a party in one action does not automatically confer

personal jurisdiction over that party in all future actions. However, “[b]ecause the

defense of lack of personal jurisdiction is a personal right, ‘it may be obviated by

consent or otherwise waived.’” 45 Whether a party has consented or waived its

challenge to personal jurisdiction is decided on a case-by-case basis.46 “[C]onsent

has been recognized as a basis for the exercise of general personal jurisdiction. In

fact, a variety of legal arrangements have been taken to represent express or

implied consent to the personal jurisdiction of the Court.” 47 For example, parties




45
   Sprint Nextel Corp., 2008 WL 2737409, at *6
        As the court noted in General Contracting, it is possible to attempt fine
        distinctions between “waiver” and “consent” in terms of personal jurisdiction. It
        has been argued, for example, that waiver arises from actions taken within a suit
        and consent stems from conduct extrinsic to the suit proper. 940 F.2d at 22-23
        (extensive internal citations omitted). The court also noted that another view on
        the distinction between consent and waiver, “turns on whether the manifesting
        conduct took place prior or subsequent to the suit's institution. Such a view
        recognizes that consent ordinarily consists of ex ante conduct while waiver
        ordinarily occurs in the form of actions taken ex post.” Id. at 23 n. 3. Here, the
        issue is whether Horizon and Bright effectively consented to this Court's personal
        jurisdiction over them in this case based on their conduct in connection with the
        Earlier Delaware Action.
As in Sprint Nextel, the issue here is whether Kongsberg Holding effectively consented to this
Court’s personal jurisdiction over it in this case, based on its filing the Earlier Delaware Action.
46
   See Wyrough & Loser, Inc. v. Pelmor Labs., Inc., 376 F.2d 543, 547 (3d Cir. 1967).
47
   Sternberg v. O'Neil, 550 A.2d 1105, 1109 (Del. 1988) (quoting Ins. Corp. of Ir. v. Compagnie
des Bauxites de Guinee, 456 U.S. 694, 703 (1982)); see also Gen. Contracting & Trading Co. v.
Interpole, Inc., 940 F.2d 20, 22 (1st Cir. 1991).
                                                 14
may explicitly “submit to a given court’s jurisdiction by contractual consent,” 48 or

“stipulate to personal jurisdiction.” 49

       Alternatively, “a court may assert personal jurisdiction over a party on the

ground that the party consented to jurisdiction by submitting itself to a court's

jurisdiction by instituting another, related suit.” 50 To find this implicit consent to

jurisdiction, the court must look for a “logical relationship” between the previous

and current suits. 51 To do this, the court should consider whether the previous and

current actions involve common issues of fact and law, which are supported or

refuted by some overlapping evidence. 52 For example, similarity of the parties to

the previous and current actions is one factor in determining whether the two

actions are sufficiently related. However, a similarity of parties between separate

actions brought in Delaware is not, by itself, sufficient to establish that a party to

the first action has consented to personal jurisdiction in the present action.53

       In this case, the Court must determine whether the Present Action and the

Earlier Delaware Action are sufficiently related to show that Defendant Kongsberg


48
   Sternberg, 550 A.2d at 1109 n. 4 (citing Nat'l Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311
(1964)).
49
   Id. (citing Petrowski v. Hawkeye-Sec. Ins. Co., 350 U.S. 495 (1956)).
50
   Foster Wheeler Energy Co. v. Metallgesellschaft AG, 1993 WL 669447 (D. Del. Jan. 4,
1993) (citing Gen. Contracting, 940 F.2d at 22).
51
   Foster Wheeler Energy Corp., 1993 WL 669447, at *4.
52
   Id.
53
   Sprint Nextel Corp., 2008 WL 2737409, a*7 (where the fact that both actions in question
involved several of the same parties was not sufficient for the Chancery Court to find that the
previous present actions were sufficiently related).
                                                15
Holding has consented to the Court’s jurisdiction over it in this case. The legal

claim involved in the Present Action is a products liability personal injury lawsuit,

based on strict liability and negligence. The legal claim involved in the Earlier

Delaware Action is multiple counts of breach of contract. 54 Defendant Kongsberg

Holding filed the Earlier Delaware Action in 2009 against Defendant Teleflex.55

Neither Plaintiff nor any of the other defendants in this case was a party to the

Earlier Delaware Action.

        As emphasized by the relevant case law, whether the previous and current

actions arise from the same underlying transaction or transactions is the primary

consideration for determining if the separate legal actions are sufficiently related

for the court to confer jurisdiction over the nonresident defendant.                  In Foster

Wheeler Energy Co. v. Metallgesellschaft AG, the court found that it had personal
54
   The original Complaint filed by Kongsberg Holding against Teleflex in the Earlier Delaware
Action is the only document in the record before the Court upon which the Court can use to
assess the relationship between the two actions. See supra, n.3. Plaintiff also submitted other
Exhibits, the Kongsberg Holding filings from the Earlier Delaware Action, to support his
argument that Kongsberg Holding filing “its related lawsuit concerning the defective Can-Am
Spyder in Delaware” “operate[s] as consent to...Delaware’s jurisdiction over matters concerning
the Spyder’s DPS.” (D.I. 74 at 4, Exhibits C & D). However, neither document adequately
articulates a specific claim brought by Kongsberg Holding against Teleflex, concerning the Can-
Am Spyder involved here. Moreover, Plaintiff had the opportunity to provide the Court with a
Kongsberg Holding amended complaint from the Earlier Delaware Action that identified a legal
claim arising from a defective Can-Am Spyder, as Plaintiff asserts here, because the parties were
given additional time to conduct the necessary discovery on this jurisdictional issue. For these
reasons, and those discussed supra, the Court will only consider Kongsberg Holding’s original
Complaint from the Earlier Delaware Action in its analysis of the relationship between the two
actions, as the original Complaint is the only document from the Earlier Delaware Action before
the Court that identifies the legal claims brought by Kongsberg Holding against Teleflex, and the
underlying transaction(s) from which those claims arose.
55
   See Kongsberg Automotive Holding ASA’s Complaint, C.A. No. 09-414-GMS (D. Del. Jun.
5, 2009).
                                               16
jurisdiction over the defendant as to the plaintiff’s claim against it for patent

infringement, when the defendant had procured the dismissal of that exact claim as

a counterclaim in a parallel suit by the defendant against the plaintiff. 56 In General

Contracting & Trading Co. v. Interpole, Inc., the court found that a party had

consented to personal jurisdiction in an action involving the same underlying

transaction as an earlier action in which it had sued the plaintiff.57 In Attorneys

Liab. Prot. Soc'y, Inc. v. Eisenhofer, 58 the court found that the defendant implicitly

consented to the court's personal jurisdiction when he filed a federal class action in

Delaware because the second suit was “spawned by” and “closely related to” the

federal class action.59 Although the plaintiff in Attorneys Liab. Prot. Soc'y, Inc.

was not named in the defendant’s previous federal class action, both suits were, in

part, based on the same underlying transaction. 60 While the Court finds the case

law instructive on the focus of the Court’s analysis, it finds these cases factually

distinguishable because, here, there is no logical relationship between the

underlying transactions giving rise to the Earlier Delaware Action and the Present

Action.


56
   See Foster Wheeler, 1993 WL 669447, at *2-3, 11-12.
57
   See Gen. Contracting, 940 F.2d at 10, 22-24.
58
   2011 WL 2089718 (Del. Super. Apr. 29, 2011).
59
   Id.
60
   Id. (“When [the defendant] sued the law firm for legal malpractice, he could have anticipated
litigation in Delaware between the law firm and its carrier over coverage of his claim. Having
come to Delaware to sue the law firm, [the defendant] impliedly agreed to participate in litigation
here over insurance potentially covering his damages.”).
                                                17
       For this same reason, the Court also finds Furnari v. Wallpang, Inc., 61 the

case used by Plaintiff to support his consent argument, distinguishable. Plaintiff

uses Furnari in support of his argument that Kongsberg Holding has consented to

jurisdiction in this State because the Furnari court held that the litigant there had

waived his jurisdictional challenge against the plaintiff after he filed suit on a

related matter in Delaware Court of Chancery. 62 While the court in Furnari does

not discuss the factors it considered in reaching its conclusion that the suits were

related, the facts of that case establish that the various actions discussed by the

Furnari court arose out of the same underlying transaction between the parties.63

In other words, though the legal claims brought by each party to the transaction

may have varied, each suit was filed by a party to and resulted from the same

underlying transaction. 64

       Instead, the Court finds Sprint Nextel Corp. v. iPCS, Inc. more factually

similar to this case. In Sprint Nextel, the court found that

       [D]espite some significant overlap, the facts underlying the Earlier
       Delaware Action differ from the facts underlying this litigation. The
       Earlier Delaware Action involved the effects of the Sprint-Nextel
       merger on the Sprint PCS affiliates as to Sprint's operation of Nextel's
       iDEN network in purported violation of the exclusivity provisions in
       the Management Agreements. Although this action involves many of
       the same parties and similar, if not identical, contractual provisions,

61
   2014 WL 1678419 (Del. Super. Apr. 16, 2014).
62
   Id. at *10.
63
   Id. at *1-3.
64
   See Furnari, 2014 WL 1678419.
                                            18
         the underlying Clearwire Transaction is sufficiently different from and
         independent of the Nextel transaction that I cannot find Horizon and
         Bright's prior decision to bring the Earlier Delaware Action here also
         reflects their consent to being sued in Delaware on the current dispute.
         This is not, for example, a situation where Horizon and Bright had
         some role in bringing about the Clearwire Transaction or taking some
         action that precipitated the Current Delaware Action. Thus, I find that
         neither Bright nor Horizon has implicitly or explicitly consented to
         personal jurisdiction in this action regarding Sprint's Clearwire
         Transaction.65

The underlying transaction for the Present Action is the alleged personal injury that

Plaintiff sustained while test driving a 2012 Can-Am Spyder in South Dakota.

Whereas the underlying transactions for the Earlier Delaware Action are the 2007

Purchase and Supply Agreements that Kongsberg Holding and Teleflex entered

into together, and the breaches of which are specifically described in Kongsberg

Holding’s Complaint against Teleflex. Generally, Kongsberg Holding alleged that,

under the Purchase Agreement, Teleflex agreed to indemnify Kongsberg Holding

for losses arising or resulting from any breach of any covenant or obligation set

forth in the agreement, which consists of the Purchase Agreement and its

appendices, exhibits, and disclose letters.66

         More specifically, Count I of the Complaint alleged that Teleflex breached

its obligations under the cancellation provision of the Supply Agreement by the




65
     Sprint Nextel, 2008 WL 2737409, at *7.
66
     Kongsberg Automotive Holding ASA’s Complaint, C.A. No. 09-414-GMS, at ¶¶ 8-9.
                                             19
way Teleflex cancelled a particular order. 67 Count II of the Complaint alleged that

Teleflex breached the Supply Agreement by refusing to remedy alleged

misrepresentations that Teleflex knowingly made to Kongsberg Holding regarding

financial information when the parties were entering the Supply Agreement. 68

Count III of the Complaint alleged that Teleflex breached its contractual obligation

to file certain tax returns in the State of Texas and to pay all applicable taxes for

the filing periods April 2001 through December 2004. 69

       This comparison of the two actions shows that they are not sufficiently

related to demonstrate that Defendant Kongsberg Holding implicitly consented to

this Court’s jurisdiction over it in the Present Action when it filed the Earlier

Delaware Action in 2009. In Sprint Nextel, despite there being similar or identical

legal claims and contractual provisions at issue in both lawsuits, the court found

that the two lawsuits were not sufficiently related to enable the court to confer

jurisdiction over the moving defendant. 70 Here, the legal claims in each action –

breach of contract and personal injury – are entirely different. While the Earlier

Delaware Action does involve two of the defendants that are parties to the Present

Action, the remaining five parties – Plaintiff and the four other defendants – in the

Present Action were not involved there. Nor would this minor similarity between

67
    Id. at ¶¶ 17-32.
68
    Id. at ¶¶ 33-41.
69
    Id. at ¶¶ 42-51.
70
   Sprint Nextel, 2008 WL 2737409, at *7.
                                            20
the parties of both actions be sufficient to find the Present Action and Earlier

Delaware Action related.71

       Critically though, the underlying transactions from which the claims in both

actions arose are different. 72 Similarly, the dispositive factor in the Sprint Nextel

court’s analysis was that, despite the similarity of parties and contractual

provisions, the underlying facts of each action were sufficiently different from and

independent of the other because the previous lawsuit was based on the Clearwire

Transaction and the current lawsuit in that case was based on the Nextel

Transaction.73 The Court finds the differences underlying the two actions here

even greater than those between the two lawsuits in Sprint Nextel. The underlying

transactions from which the Earlier Delaware Action arose were the 2007 Purchase

and Supply Agreements between Kongsberg Holding and Teleflex, and Teleflex’s

alleged breaches of those agreements through an improper cancellation, improper

pricing, and failure to file and pay State of Texas taxes. There is no logical

relationship between these underlying facts and transactions, and the underlying

transaction from which the Present Action arose: Plaintiff’s alleged personal injury

sustained while test driving a 2012 Can-Am Spyder in South Dakota.

Furthermore, the Earlier Delaware Action does not involve the same model year


71
   See Sprint Nextel, 2008 WL 2737409.
72
   Id.
73
   Id.
                                         21
Can-Am Spyder involved in the Present Action. 74 Therefore, the Court finds that

the two actions are not sufficiently related for Defendant Kongsberg Holding’s

decision to bring suit against Teleflex in Delaware District Court to reflect its

consent to be sued by Plaintiff in Delaware on the Present Action. 75 Accordingly,

this Court cannot properly exercise personal jurisdiction over Defendant

Kongsberg Holding in this case.

                                         Conclusion

       For the foregoing reasons, Defendant Kongsberg Holding’s Motion to

Dismiss for lack of jurisdiction is GRANTED.

IT IS SO ORDERED.


                                                            /s/Calvin L. Scott
                                                            Judge Calvin L. Scott, Jr.




74
   D.I. 75 at ¶ 2; Kongsberg Holding Reply Br. at ¶ 8. It does not appear, based on the parties’
submissions, that Plaintiff disputes that the model year Can-Am Spyder in the Earlier Delaware
Action is not the same as that involved in the Present Action.
75
   See Sprint Nextel, 2008 WL 2737409, at *7.
                                               22
