                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


TRINA MARLENE YATES,                     
Administratix of the Estate of
Thomas Yates,
                   Plaintiff-Appellee,
                  v.                             No. 01-1938

MOTIVATION INDUSTRIAL EQUIPMENT
LIMITED,
              Defendant-Appellant.
                                         
            Appeal from the United States District Court
      for the Western District of North Carolina, at Charlotte.
               H. Brent McKnight, Magistrate Judge.
                       (CA-99-337-3-MCK)

                       Argued: January 22, 2002

                        Decided: June 20, 2002

        Before WILKINSON, Chief Judge, and MOTZ and
                  GREGORY, Circuit Judges.



Reversed and remanded by unpublished per curiam opinion. Chief
Judge Wilkinson wrote a dissenting opinion.


                             COUNSEL

ARGUED: Paul Christopher Lawrence, HEDRICK, EATMAN,
GARDNER & KINCHELOE, L.L.P., Charlotte, North Carolina, for
Appellant. John Joseph Korzen, ANDERSON, KORZEN & ASSO-
2                 YATES v. MOTIVATION INDUS. EQUIP.
CIATES, P.C., Kernersville, North Carolina, for Appellee. ON
BRIEF: Terry L. Wallace, HEDRICK, EATMAN, GARDNER &
KINCHELOE, L.L.P., Charlotte, North Carolina, for Appellant.
Charles McB. Sasser, COX, GAGE & SASSER, Charlotte, North
Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Motivation Industrial Equipment, Ltd. (Motivation), a Canadian
corporation, appeals the district court’s order denying its motion to
dismiss for lack of personal jurisdiction. Because the record does not
establish that Motivation had the necessary minimum contacts with
North Carolina so as to comport with the requirements of due process,
we reverse.

                                   I.

   Thomas Yates, an employee of Polar Plastics Inc. (Polar), located
in Mooresville, North Carolina, was fatally injured on July 18, 1997,
when a gantry crane manufactured by Motivation collapsed and fell
on him.1 Trina Yates, as administratrix of her husband’s estate, filed
a wrongful death action against Motivation in North Carolina Supe-
rior Court on July 14, 1999, alleging negligence and breach of war-
    1
   Motivation sold the crane to Metric Storage Systems (Metric), a
Canadian corporation, knowing that Metric, in turn, would sell the crane
to Polar, also a Canadian corporation. Sometime after the crane arrived
at Polar’s Canadian plant, Polar shipped the crane to North Carolina.
However, Motivation had no knowledge that the crane was being
shipped to North Carolina, and the record is void of any evidence indi-
cating Motivation was even aware that Polar had a North Carolina plant.
                     YATES v. MOTIVATION INDUS. EQUIP.                      3
ranties. Motivation, a corporation with its principal place of business
in Canada, removed the case to federal district court in North Carolina
on the basis of diversity of citizenship, see 28 U.S.C. § 1332(a), and
moved to dismiss the case pursuant to Fed. R. Civ. P. 12(b)(2), for
lack of personal jurisdiction. After allowing Yates additional time to
conduct jurisdictional discovery, the magistrate judge, presiding by
consent of the parties, found that the exercise of personal jurisdiction
in this case was appropriate and denied Motivation’s motion to dis-
miss. This appeal followed.

                                      II.

   Yates contends, and the magistrate judge found, that Motivation is
subject to the personal jurisdiction of the district court. We disagree.
For the reasons that follow, we find that the district court’s exercise
of personal jurisdiction over Motivation exceeds the limits of due pro-
cess and is therefore constitutionally impermissible.

   Whether Motivation’s contacts with North Carolina were sufficient
to support the district court’s exercise of personal jurisdiction is a
question of law which we review de novo. Christian Science Board
of Directors of the First Church of Christ v. Nolan, 259 F.3d 209, 215
(4th Cir. 2001). It is well established that, in order for a district court
to validly assert personal jurisdiction over a non-resident defendant,
two conditions must be satisfied. Id. First, the exercise of jurisdiction
must be authorized by the long-arm statute of the forum state, and
second, the exercise of personal jurisdiction must not "overstep the
bounds" of Fourteenth Amendment due process requirements. Anita’s
New Mexico Style Mexican Food, Inc. v. Anita’s Mexican Foods
Corp., 201 F.3d 314, 317 (4th Cir. 2000). Motivation does not sepa-
rately contest that it is subject to North Carolina’s long-arm statute,
which has been construed to extend to the outer limits allowed by the
Due Process Clause.2 See Hiwassee Stables, Inc. v. Cunningham, 135
  2
   N.C. GEN. STAT. § 1-75.4(4) states in part,
      Local Injury; Foreign Act. — In any action for wrongful death
      occurring within this State or in any action claiming injury to
      person or property within this State arising out of an act or omis-
      sion outside this State by the defendant, provided in addition that
      at or about the time of the injury either:
4                  YATES v. MOTIVATION INDUS. EQUIP.
N.C. App. 24, 27, 519 S. E. 2d 317, 230 (1999). Thus, the scope of
our inquiry is simply whether North Carolina may, consistent with
due process, exercise personal jurisdiction over Motivation. In other
words, we must decide whether Motivation has "certain minimum
contacts" with the forum, such that "maintenance of the suit does not
offend ‘traditional notions of fair play and substantial justice.’" Inter-
national Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citations
omitted).

   We view the two species of personal jurisdiction, general and spe-
cific, through distinct lenses. See generally ESAB Group v. Centricut,
126 F. 3d 617, 623-24 (4th Cir. 1997). When a cause of action arises
out of a defendant’s contacts with the forum, a court may seek to
exercise specific jurisdiction over that defendant if it purposefully
directs activities toward the forum state and the litigation results from
alleged injuries that arise out of or relate to those activities. See Heli-
copteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414
(1984). However, when the cause of action does not arise out of the
defendant’s contacts with the forum, general jurisdiction may be exer-
cised upon a showing that the defendant’s contacts are of a "continu-
ous and systematic" nature. Id. at 416.

   Yates has never claimed that Motivation’s contacts with North Car-
olina are sufficiently continuous and systematic to subject Motivation
to general personal jurisdiction in North Carolina. Here, as the district
court duly observed, Motivation clearly was not engaged in "substan-
tial" or "continuous and systematic" activities in North Carolina such
as to subject it to general jurisdiction in the state. Thus, we need only
determine whether Motivation’s contacts were sufficient to subject it
to specific personal jurisdiction in North Carolina.

                                   III.

   This circuit has applied a three part test when evaluating the propri-
ety of exercising specific jurisdiction: 1) whether and to what extent

       b. Products, materials or thing processed, serviced or manu-
    factured by the defendant were used or consumed, within this
    State in the ordinary course of trade.
                  YATES v. MOTIVATION INDUS. EQUIP.                   5
the defendant "purposely availed" itself of the privileges of conduct-
ing activities in the forum state, and thus invoked the benefits and
protections of its laws, 2) whether the plaintiff’s claim arises out of
those forum-related activities, and 3) whether the exercise of jurisdic-
tion is constitutionally "reasonable." Nolan, 259 F.3d at 215-16 (cit-
ing Helicopteros, 466 U.S. at 415-16, and Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472, 476-77 (1985)). For the reasons dis-
cussed below, Yates cannot satisfy this test.

                                  A.

                                   1.

   Yates contends that the agency relationship between The Shannon
Group, Inc. (Shannon) and Motivation proves that Motivation pur-
posefully availed itself of the benefits and protections of North Caro-
lina law. In 1994, Shannon, located in Goodlettsville, Tennessee,
agreed to represent Motivation as its agent in Tennessee, North Caro-
lina, South Carolina, Alabama, Georgia, and Florida.3 The agreement
was for an initial term of one year and would be automatically
renewed for successive one year terms, unless either party gave notice
to the other party two months prior to the expiration of the original
term.

   Robert Shannon, President of Shannon and the North Carolina
sales agent for Motivation, stated in an affidavit that as part of the
agreement with Motivation, the Shannon Group retained the right to
represent other manufacturers. Shannon was not, nor has ever been an
exclusive agent for Motivation. Furthermore, prior to July 18, 1997,
the day of Thomas Yates’ death, Shannon made no sales and received
no revenue on behalf of Motivation from any entity in North Carolina.
Yates offered no evidence to contradict Robert Shannon’s representa-
tions.4 There is no evidence in the record that Shannon took Motiva-
tion’s brochures, products or sales materials to North Carolina. There
  3
    In 1995, the contract was amended to exclude Florida and include
Mississippi.
  4
    Yates had over one year and ten months, the period of time between
Motivation filing its motion to dismiss and the magistrate judge ruling
on the motion, to depose Robert Shannon, but did not.
6                      YATES v. MOTIVATION INDUS. EQUIP.
is also no evidence that Shannon made any solicitations in person or
otherwise on behalf of Motivation in North Carolina. Yates offered
no evidence that Shannon, as Motivation’s agent, conducted any
activities whatsoever in North Carolina. Motivation’s agreement with
Shannon therefore does not satisfy the first prong of the test for spe-
cific jurisdiction.

   Our dissenting colleague suggests that hiring a sales representative
for the forum state as part of a strategy of targeting this country and
the particular state for increased sales would amount to purposeful
availment, even if, as here, the agent was not an exclusive agent and
no actions were taken by that agent on behalf of the company. We
believe more is needed. However, even if we were to assume that the
agency relationship in this case amounted to purposeful availment,
because Thomas Yates’ death did not arise from, or relate to in any
way, Motivation’s agency relationship with Shannon, the second
prong of the test is not met.5 Even if Yates had offered evidence that
    5
   The district court found that Motivation conceded that Yates’ claim
arose out of or related to Motivation’s activities in North Carolina. (J.A.
508). This finding was erroneous. Motivation merely conceded that the
injury to Yates’ decedent occurred in North Carolina.
 In Motivation’s supplemental brief in support of its motion to dismiss,
Motivation stated:
        [I]n Honeycutt, this Court discussed the two tests set forth by the
        Supreme Court in determining whether defendant’s contact satis-
        fied the requirements of due process for the Court to assert juris-
        diction and for the Plaintiff to establish a prima facie case of
        jurisdiction. If a cause of action did not arise in or is unrelated
        to the defendant’s activity in the forum state, then the appropri-
        ate standard is the continuous and systematic test set forth in
        Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
        408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (i.e., general juris-
        diction). If the cause of action either arose in or is related to the
        defendant’s activities in the forum state, the lesser burden of
        showing the defendant purposely [sic] directed its activities
        toward the forum state applies. See Burger King Corp. v.
        Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 528 (1985).
        (i.e., specific jurisdiction).
          In this case, since the injury to the Plaintiff’s Decedent
        occurred in North Carolina, the prima facie burden the Plaintiff
                   YATES v. MOTIVATION INDUS. EQUIP.                      7
Shannon took some actions on behalf of Motivation in North Carolina
before Thomas Yates’ death, there was no evidence presented that
Shannon, or any other sales representative in the United States, was
involved in the sale of the crane in any capacity. The sale of the crane
had nothing to do with sales efforts in North Carolina, or sales efforts
in the United States for that matter. The crane was sold in Canada, by
one Canadian corporation to another Canadian corporation.6

    needs to establish is that the Defendant purposely [sic] directed
    its activities toward the forum state. (emphasis added).
Defendant’s Supp. Brief in Support of its Motion to Dismiss, 6.
   As evidenced above, Motivation relied on Honeycutt v. Tour Carriage,
Inc., 997 F. Supp. 694, 704 (W.D.N.C. 1996). Unfortunately, Honeycutt
misstates Helicopteros. In Helicopteros, the Supreme Court explained
that a state exercises specific jurisdiction in a suit "arising out of or
related to the defendant’s contacts with a forum." 466 U.S. at 414, n.8.
(emphasis added). It did not state that specific jurisdiction is conferred
in cases simply because an injury occurs in that state, which is perhaps
how Honeycutt could be read.
   After citing Honeycutt, Motivation merely stated that because Thomas
Yates’ injury occurred in North Carolina, Yates needed to establish pur-
poseful availment, i.e., specific jurisdictional analysis was proper. It
never conceded that the cause of action arose out of its contacts with
North Carolina. Whether the district court found a concession because it
misread Motivation’s statement, or because it accepted Motivation’s (and
Honeycutt’s) misapplication of the law, we are not bound by the misread-
ing or the misapplication.
   6
     In determining whether a claim arises out of forum-related activities,
circuits have applied different tests. For example, the Ninth Circuit
applies a "but for" test, where courts consider whether a plaintiff’s claims
would have arisen but for the defendant’s contacts with the forum state.
See Doe I. v. Unocal Corp., 248 F.3d 915, 924 (9th Cir. 2001). On the
other hand, the Sixth Circuit does not require that "the cause of action
formally ‘arise from’ defendant’s contacts with the forum; rather, this
criterion requires only ‘that the cause of action, of whatever type, have
a substantial connection with the defendant’s in-state activities.’" Bird v.
Parsons, 2002 WL 1012175, *7 (6th Cir. 2002). Even if we employ the
less stringent Sixth Circuit test, the evidence before us establishes no
substantial connection between the cause of action and any of Motiva-
tion’s alleged in-state activities.
8                  YATES v. MOTIVATION INDUS. EQUIP.
   Yates also contends that Motivation purposely availed itself to
North Carolina when it made two sales to North Carolina entities in
1998. Even if we were to find that these sales showed purposeful
availment, Thomas Yates’ death in 1997 simply could not arise from
or relate to sales made in 1998, after his death.

                                    2.

   Motivation’s general solicitation activities, separately or taken as
a whole, likewise do not establish purposeful availment.7 Its adver-
tisements in the Thomas Register are not sufficient contacts. This cir-
cuit has held that a listing in the Thomas Register, a nationally
distributed trade journal, is not enough to confer personal jurisdiction
in a particular state. Federal Insurance Co. v. Lake Shore Inc., 886
F. 2d 654, 659 (4th Cir. 1989). While Motivation placed advertise-
ments in the Thomas Register, there is no evidence in the record that
the advertisements were directed toward North Carolina residents,
that North Carolina residents responded to them, or that Motivation
sent any products to North Carolina as a result of them. Like the
advertisements in the Thomas Register, Motivation’s advertisement in
Crane Magazine also does not show purposeful availment to North
Carolina. There is no evidence in the record that the advertisement in
Crane Magazine was directed toward North Carolina residents, or that
inquiries or sales were generated from the advertisement. See Cancun
Adventure Tours, Inc. v. Underwater Designer Co., 862 F.2d 1044,
1046 (4th Cir. 1989).

  The fact that Motivation operates a website likewise does not prove
purposeful availment here. There is no evidence in the record to sug-
gest, nor has Yates argued at any point, that the website is anything
    7
    Motivation had a liability insurance policy with Commercial Union
Assurance Company of Canada at the time of Thomas Yates’ death. The
policy covered Motivation if a liability suit was brought against it in the
United States. Yates argues that Motivation is subject to personal juris-
diction in North Carolina because it owned an insurance policy that cov-
ered claims throughout the United States. We find this argument
unpersuasive. Motivation neither directed activity toward North Carolina
nor purposefully availed itself to North Carolina by merely purchasing
this broad, nationwide insurance policy.
                  YATES v. MOTIVATION INDUS. EQUIP.                   9
more than a "passive" website, where general information about Moti-
vation is posted. See Cybersell Inc. v. Cybersell, Inc., 130 F.3d 414,
418 (9th Cir. 1997) (citing Zippo Manufacturing Co. v. Zippo Dot
Com, Inc. 952 F. Supp. 1119 (W.D. Pa. 1997)). There is also no evi-
dence in the record that any North Carolina entity purchased products
from the website or purchased products because of the website.

   Again, even if we were to assume that the advertisements or the
website established Motivation’s purposeful availment to North Caro-
lina, it would strain credulity for us to find that Yates’ claim some-
how arose out of these contacts. Yates has offered no evidence that
would establish even a tenuous link between the advertisements or the
website and the death of her husband.

                                  B.

   Yates contends that the district court could exercise specific juris-
diction over Motivation simply because Motivation manufactured the
crane and did not limit its distribution of the crane so as to exclude
North Carolina. We disagree. A "stream of commerce" theory of
personal jurisdiction will not save Yates’ case. See World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). Motivation
manufactured the crane in Canada and sold it to a Canadian sales rep-
resentative, who in turn sold it to Polar, a Canadian corporation. The
crane was initially delivered to Polar in Brampton, Ontario. There is
simply no evidence in the record that Motivation was aware that the
gantry crane at issue might be sent to or used in North Carolina.
Polar, fortuitously, transported the crane to its North Carolina plant.
The Supreme Court has rejected the application of a stream of com-
merce theory when, as here, the defendant delivers the product into
the stream of commerce without any expectation that it would be pur-
chased or used by a consumer in the forum state. See Lesnick v. Hol-
lingsworth & Vose Co., 35 F.3d 939, 943 (4th Cir. 1994) (quoting
World-Wide Volkswagen, 444 U.S. at 297-98). We find no evidence
in the record to indicate that Motivation should have "reasonably anti-
cipate[d] being haled into court" in North Carolina when it placed the
crane into the stream of commerce in Canada. World-Wide Volkswa-
gen, 444 U.S. at 297.
10                  YATES v. MOTIVATION INDUS. EQUIP.
                                       C.

   Because Yates cannot show that Motivation "purposely availed"
itself of the privileges of conducting activities in North Carolina or
that her claims arise out of Motivation’s North Carolina-related activ-
ities, we need not consider the third prong of the test for specific
jurisdiction—whether jurisdiction would be reasonable.8 See Phillips
Exeter Academy v. Howard Phillips Fund, Inc. 196 F.3d 284, 288 (1st
Cir. 1999) (explaining that because an affirmative finding on each of
the three elements is required to support a finding of specific jurisdic-
tion, only "if the proponent’s case clears the first two hurdles" must
the court then analyze the overall reasonableness of an exercise of
jurisdiction); see also Doe I v. Unocal Corp., 248 F.3d 915, 925 (9th
Cir. 2001) (stating that the court need not reach the third prong of the
specific jurisdiction test when plaintiff’s evidence is insufficient to
establish either purposeful availment or that the cause of action arises
out of defendant’s contacts with the forum).

                                      IV.

   On the facts and record set before us, Yates did not establish per-
sonal jurisdiction over Motivation in North Carolina. As such, we
reverse and remand with instructions to dismiss for lack of personal
jurisdiction.

                                            REVERSED AND REMANDED

WILKINSON, Chief Judge, dissenting:

  Trina Yates brought a wrongful death action after a Gantry crane
manufactured by Motivation Industrial Equipment Limited collapsed
on her husband and killed him. The question is whether a foreign cor-
  8
    The overall reasonableness of whether jurisdiction would offend tra-
ditional notions of fair play and substantial justice, depends on several
factors—1) the burden on the defendant, 2) the interests of the forum
state, 3) the plaintiff’s interest in obtaining relief in the forum, 4) the effi-
cient resolution of controversies as between states, and 5) the shared
interests of the several states in furthering fundamental substantive social
policies. Lesnick, 35 F.3d at 946.
                   YATES v. MOTIVATION INDUS. EQUIP.                      11
poration that purposefully avails itself of an American forum can be
required to defend there. In my view, the majority’s answer is mis-
taken.

   My good colleagues find no purposeful availment.* However, at
the time of the accident, Motivation had: (1) initiated a company pol-
icy to sell its products in the United States; (2) represented to Ameri-
can citizens that it had an address here; (3) hired a sales representative
to oversee sales and service in a number of states, including North
Carolina; (4) purchased liability insurance to protect itself in the event
of an accident in the United States, including North Carolina; (5) and

   *The district court explicitly found that Motivation had "concede[d]"
the issue of whether Yates’ claim arose out of or was related to the com-
pany’s activities in the forum state. Notwithstanding the concession, the
majority determines that the arising-out-of prong of the specific-
jurisdiction test has not been met. But such concessions by litigants are
binding in general, and the requirement of personal jurisdiction can be
waived. Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456
U.S. 694, 703 (1982). Motivation is therefore bound by this concession.
It never appealed the district court’s finding of a concession, and it never
even filed a reply brief before this court to contest Yates’ contention that
it had made the concession. What we have here, therefore, is a double
problem from Motivation’s standpoint — namely, a concession followed
by a waiver.
   The majority goes to great lengths to excuse Motivation’s litigation
conduct. It asserts that the district court erred in attributing this conces-
sion to Motivation, remarking that the court below either misread Moti-
vation’s brief or accepted the company’s misapplication of the law. The
majority further states that we are not bound by this misreading or misap-
plication. Ante at 7 n.5. But there was no misreading in view of the
majority’s own concession that Motivation misunderstood the governing
law. And there is no doubt that the company is bound by its legal error
because we are dealing with a waivable form of jurisdiction. Even if the
majority is correct that Motivation did not concede that Yates’ claim
arose out of or was related to Motivation’s activities in North Carolina,
the company certainly conceded the issue of whether the plaintiff’s claim
had so arisen when it stated that "the prima facie burden the Plaintiff
needs to establish is that the Defendant purposely directed its activities
toward the forum state." Defendant’s Supp. Brief in Support of Motion
to Dismiss at 6. It is on this primary issue that I primarily take exception
with the majority’s view.
12                YATES v. MOTIVATION INDUS. EQUIP.
advertised its products in nationally distributed trade journals and
magazines.

   It is not sufficient to analyze these facts piecemeal. And taken
together, there is no doubt that Motivation has purposefully availed
itself of the benefits and protections of North Carolina law. The
majority is correct to note that merely placing a product in the stream
of interstate commerce will not support the exercise of personal juris-
diction. See Fed. Ins. Co. v. Lake Shore Inc., 886 F.2d 654, 658 (4th
Cir. 1989). Here, however, we have more. See id. at 659 (distinguish-
ing "cases where a manufacturer employs an intermediary or distribu-
tor in the forum state"). Indeed, I am not aware of any case in which
a court found no personal jurisdiction where a foreign company con-
tinuously rehired a sales representative for the forum state, all as part
of a strategy of targeting this country and that state for increased
sales.

   The specifics of the Sales Agent Contract entered into by Motiva-
tion and its North Carolina sales agent are worthy of consideration.
On March 21, 1994, the parties entered into an agreement, renewable
each year, in which the company "appoint[ed] [Shannon] as its exclu-
sive and sole agent for the sale of [Motivation’s] manufactured prod-
ucts in the territory . . . set out herein." Motivation assigned Shannon
the area of the United States encompassing Tennessee, North Caro-
lina, South Carolina, Alabama, Georgia, and Florida. In April 1995,
Florida was removed from Shannon’s sales area and Mississippi was
added. This territorial change is reflected in a hand-written amend-
ment to the contract. But North Carolina has remained a part of Shan-
non’s assigned territory since the contract was first formed. Indeed,
Shannon continues to represent Motivation in North Carolina to this
day.

    The majority makes much of how little Shannon accomplished on
behalf of Motivation in North Carolina. But whether or not Shannon
was an effective sales representative is of no consequence. Motivation
asserts that it has enjoyed limited success in obtaining business in the
United States in general and North Carolina in particular. However,
it is clear that the company did purposefully direct its sales efforts to
that end.
                  YATES v. MOTIVATION INDUS. EQUIP.                   13
   As a consequence, the exercise of federal jurisdiction in North Car-
olina would not violate Motivation’s "liberty interest in not being sub-
ject to the binding judgments of a forum with which [it] has
established no meaningful ‘contacts, ties, or relations.’" Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985) (quoting Int’l Shoe
Co. v. Washington, 326 U.S. 310, 319 (1945)). Similarly, the exercise
of jurisdiction would not interfere with the company’s ability "to
structure [its] primary conduct with some minimum assurance as to
where that conduct will and will not render [it] liable to suit." World-
Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

   Having found that the first two prongs of the specific jurisdiction
inquiry are satisfied, I proceed to consider the final element of the
test. This prong concerns the reasonableness of exercising jurisdiction
— that is, whether the exercise of jurisdiction would offend "‘tradi-
tional notions of fair play and substantial justice.’" Int’l Shoe, 326
U.S. at 316 (quoting Milliken v. Myer, 311 U.S. 457, 463 (1940)).
Though the majority finds it unnecessary to reach this issue in view
of its decision on the first two prongs, the majority nevertheless
chooses to consider the second element of the test despite its disposi-
tive handling of the first. Indeed, the majority’s silence on the ques-
tion of reasonableness is instructive because it is this component of
the inquiry that most dramatically reveals the injustice of preventing
Yates from bringing suit in North Carolina.

   The reasonableness inquiry requires a court to consider several fac-
tors, including "the burden on the defendant, the interests of the forum
State, and the plaintiff’s interest in obtaining relief" in the forum. A
court "must also weigh in its determination ‘the interstate judicial sys-
tem’s interest in obtaining the most efficient resolution of controver-
sies; and the shared interest of the several States in furthering
fundamental substantive social policies.’" Asahi Metal Indus. Co. v.
Superior Court of California, 480 U.S. 102, 113 (1987) (quoting
World-Wide Volkswagen, 444 U.S. at 292); see also Lesnick v. Hol-
lingsworth & Vose Co., 35 F.3d 939, 945-46 (4th Cir. 1994). As the
district court held, these considerations compel the conclusion that the
exercise of jurisdiction in this case comports with due process.

   To begin with, though the burden on Motivation of defending itself
in a foreign forum is not trivial, see Asahi, 480 U.S. at 114, that bur-
14                   YATES v. MOTIVATION INDUS. EQUIP.
den is far from unfair in view of Motivation’s decision to do business
in North Carolina. Indeed, it may be cost effective for the company
to conduct discovery and try the case in North Carolina because the
accident site, the witnesses, and the crane itself are all located there.

   In addition, the interests of both Yates and North Carolina in the
exercise of jurisdiction over Motivation are compelling. The accident
took place in North Carolina, and the company’s alleged negligence
caused the death of a North Carolina citizen. Further, the decedent left
behind three children and a spouse who is also a North Carolina citi-
zen. There can be no doubt that the state has a strong interest in recti-
fying wrongs allegedly committed within its territory against its
citizens. And the state has an equally strong interest in protecting its
consumers by requiring foreign manufacturers to comply with its
safety standards, and by ensuring "the recovery by one of its citizens
of appropriate compensation, if there is a substantive cause of action."
Lee v. Walworth Valve Co., 482 F.2d 297, 299-300 (4th Cir. 1973).

   Finally, in view of Motivation’s claim that it is not subject to suit
in any state, Yates may not be able to sue the company in any juris-
diction in the United States. It is not right to let Motivation do busi-
ness in this country while at the same time relieving it of the
obligation to defend here when the death of an American citizen is
allegedly caused by one of its products. And it is just as unfair to
require this North Carolina widow to go to Canada to find out if her
husband’s life was negligently taken.

     I respectfully dissent.
