Low v. Werke

¶1dissents in part in a memorandum as follows: I concur with the majority of this court that proper service was not obtained against the defendant Bayerische Motoren Werke, AG. (BMW-AG). I disagree with the further conclusion that if service had been properly effected, the record would have been insufficient to permit the determination as to whether jurisdiction was properly obtained with regard to BMW-AG. Defendant appellant, BMW-AG, is a multinational corporation, organized under the laws of Germany, which sells and distributes BMW automobiles worldwide. It sells these automobiles to importers in the United States, who are wholly owned subsidiaries of defendant-appellant. Here, plaintiff, an American citizen, purchased a BMW in this country from a franchised dealer, who is authorized to make said sale and who arranged for delivery of the automobile in Europe. In fact, upon delivery of the BMW in Germany, this was the first contact that plaintiff had with the German corporation. However, the memorandum delivered to the plaintiff customer in Germany listed the defendant, Bayerische Motoren Werke of North America, Inc. (BMW-NA) as the importer. Prior to delivery, all previous business dealings were conducted through a franchised dealer in the United States, who, in turn, placed the order through BMW-AG’s wholly owned American subsidiary. It is clear to me that the defendants actively solicit this type of sale. In addition, it is my opinion that there are sufficient facts in the record to permit the inference that an agency relationship exists between the United States corporation and the parent German corporation.