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Kluin v. American Suzuki Motor Corporation11/1/2002
tion to dismiss was decided before trial on the basis of the pleadings, the petition, affidavits, and other written materials. Thus, Kluin need only make a prima facie showing. The allegations in the petition must be taken as true to the extent they are uncontroverted by Suzuki's affidavits. If the parties present conflicting affidavits, all factual disputes are resolved in Kluin's favor. In re Hesston Corp., 254 Kan. at 954-55. Because we are ruling on a motion to dismiss, we accept the factual assertions in Kluin's affidavit; i.e., Suzuki was the cycle manufacturer, Suzuki gave a warranty of some type, and Suzuki has at least five dealerships in Kansas.
Our task is to decide whether Kluin's allegations, as supported by his affidavit, make a prima facie showing necessary to exercise jurisdiction over Suzuki. We review the district court's ruling de novo. In re Hesston Corp., 254 Kan. at 954-55.
Kluin characterizes the following as Kansas contacts: (1) access to Suzuki's web site (while in Kansas, he read on-line articles and advertisements), (2) access to advertisements and articles about the cycle in motorcycle magazines received at his home, (3) his telephoning the dealership in Oklahoma (he asked questions and was referred to Suzuki's web site for additional details), (4) the Oklahoma dealer faxed him some of Suzuki's promotional material that was substantially the same as the information on Suzuki's web site, (5) the presence of at least five authorized Suzuki dealerships located in Kansas, (6) the warranty he received in Oklahoma, and (7) the warranty repairs performed in Oklahoma. Without sharing any supporting authority, Kluin's position is that his Kansas residency is sufficient to give Kansas jurisdiction over Suzuki on his breach of express warranty claim.
The process of determining whether a Kansas court has personal jurisdiction involves a two-step analysis. First, the court decides if there is jurisdiction under K.S.A. 60-308(b), the Kansas long arm statute. Second, if 60-308(b) is satisfied, the court inquires if the exercise of personal jurisdiction complies with the due process requirements of the Fourteenth Amendment to the United States Constitution. K.S.A. 60-308(b) is to be liberally construed to assert personal jurisdiction over nonresident defendants to the full extent permitted by the Due Process Clause of the United States Constitution. St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc., 245 Kan. 258, 263, 777 P.2d 1259 (1989), cert. denied 493 U.S. 1036 (1990). For an informative survey of K.S.A. 60-308(b) cases, see Leben and Hinderks, Long Arm Jurisdiction in Kansas, 62 J.K.B.A. 26 (May 1993).
Kluin appears to rely on the first step of the analysis, arguing that personal jurisdiction was proper under K.S.A. 60-308(b). For a helpful discussion of the difference in approach between one- and two-step jurisdictions, see 1 Casad Jurisdiction in Civil Actions ยง 4-1(b) (3d ed. 1998). Because we find an insufficient basis for personal jurisdiction under K.S.A. 60-308(b), we need not reach a step-two constitutional analysis.
Kluin's petition did not allege any specific theories of long arm jurisdiction. However, in his response to Suzuki's motion to dismiss, he cites subsections (b)(1), (b)(2), and (b)(5) of K.S.A. 60-308, which provide, in part:
"(b) Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person . . . to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:
(1) Transaction of any business within
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