MacKey v. Compass Marketing, Inc.

RAKER, J. In this Certified Question case, pursuant to the Maryland Uniform Certification of Questions of Law Act, Maryland Code (1974, 2002 Repl.Vol., 2004 Cum.Supp.), §§ 12-601 through 12-613 of the Courts and Judicial Proceedings Article, and Maryland Rule 8-305, the United States District Court for the District of Maryland has certified the following questions of Maryland law: “(1) Whether Maryland recognizes the conspiracy theory of jurisdiction as a matter of state law?” “(2) If Maryland recognizes the conspiracy theory of jurisdiction, what elements must a plaintiff allege for a court to have jurisdiction over the out-of-state defendant under that theory?” Our answer to the first question shall be YES, and we shall answer the second question by adopting the standard articulated in Cawley v. Bloch, 544 F.Supp. 133 (D.Md.1982). I. We recite the facts as set out in the certification order. ¹²² “This action arises from an alleged conspiracy between Defendants to cut Plaintiff Compass Marketing Inc.’s brokerage commissions and otherwise interfere with Compass’ business. Compass filed a complaint against defendants Schering-Plough Corp., Schering-Plough Health Care Products, Inc., Schering-Plough Health Care Products Sales Corp. (sometimes referred collectively as Schering-Plough), Wyeth (Wyeth was previously known [as] the Whitehall-Robins Healthcare Division of American Home Products Corporation, but is referred to herein as Wyeth), James J. Mackey, and Samuel Severino. “Plaintiffs complaint was filed in May 2004 in the U.S. District Court for the District of Maryland. Schering-Plough and Wyeth answered denying liability.

Defendants Severino and Mackey each moved to dismiss the Complaint against them claiming, among other grounds, lack of jurisdiction over them personally under the Maryland long arm statute. On March 25, 2005, this Court granted the motion in part, with leave for Plaintiff to file an amended complaint, but denied the motion without prejudice on the issue of personal jurisdiction, deciding to certify the issue of whether Maryland recognizes the conspiracy theory of jurisdiction as a matter of state law to the Maryland Court of Appeals. “The allegations stated below are taken from plaintiffs First Amended Complaint. At this preliminary stage, this Court has not made any findings of fact regarding the alleged conspiracy or any other facts set forth in the First Amended Complaint. Defendants Schering-Plough and Wyeth deny the existence of any conspiracy or liability and deny many of the specific allegations set forth below, and defendants Mackey and Severino have not answered the complaint because they contest this Court’s jurisdiction over them. “Schering-Plough and Wyeth are in the business of manufacturing and distributing pharmaceutical and other consumer health care products in the United States and throughout the world.

Schering-Plough and Wyeth do not dispute that they are each subject to jurisdiction in Mary ¹²³ land. Compass is a Maryland based broker in the business of marketing and brokering consumer health care products and other products. Some but not all of Schering-Plough and Wyeth goods brokered by Compass are delivered by those companies to customers in Maryland. Sam Severino was, at the time, Director, Special Markets, of what is now Wyeth; James Mackey was and is Senior Vice President of Sales of Schering-Plough.

At the time of relevant events, and for several years previously, Compass brokered consumer health care products for both Schering-Plough and Wyeth pursuant to separate agreements. “In January 2001, Severino met with Compass in Maryland to negotiate a cut in the brokerage commission paid by Wyeth to Compass, but upon learning that Schering-Plough was paying Compass an even higher brokerage fee, Severino decided not to cut Compass’ brokerage fee at that time. Shortly thereafter, Severino and Mackey communicated concerning cutting Compass’ brokerage commissions. Mackey and Severino were long-time friends and/or business colleagues, and just prior to his employment at Schering-Plough, Mackey worked at Wyeth and was Severino’s superior. Mackey told Severino to meet with Thomas Moeller, Vice President of Sales at Schering-Plough responsible for the division which included Compass, to discuss jointly cutting the brokerage fees that Wyeth and Schering-Plough were paying to Compass; and that Mackey told Moeller to meet with Severino, to discuss jointly cutting the brokerage fees that Wyeth and Schering-Plough were paying to Compass.

Sometime prior to March 30, 2001, Severino and Moeller met at a trade event, held at a location other than in Maryland, and reached an agreement for Wyeth and Schering-Plough to jointly cut the brokerage fees that Wyeth and Schering-Plough were paying to Compass. “On March 30, 2001, Compass received a telephone call from Peggy Smith of Schering-Plough, informing Compass that its commissions from Schering-Plough were being cut to four percent for Compass’ largest account only. Thereafter, Compass received a letter from Schering-Plough, dated ¹²⁴ April 5, 2001, confirming that Compass’ commissions from Schering-Plough were cut to four percent, effective April 2, 2001, not only for Compass’ largest account, but for all of Compass’ business (excluding new customers for the first 6 months). On or about April 2, 2001, Compass received a letter from Wyeth, signed by Severino and dated March 30, 2001, informing Compass that its commissions from Wyeth were being cut to three percent for its largest account, effective May 1, 2001 (Compass’ commissions on other existing Wyeth’s [sic] accounts would be five percent). “Compass sought to have Schering-Plough not put the commission cuts into effect, but was unsuccessful. The cuts went into effect in June and July 2001, when Compass received in Maryland the first reduced commission payments from Wyeth and Schering-Plough respectively.” II.

Appellants Mackey and Severino argue before this Court that Maryland law does not recognize the conspiracy theory of jurisdiction because it is inconsistent with the plain language of the Maryland “long-arm” statute, Md.Code (1974, 2002 Repl.Vol., 2005 Cum.Supp.), § 6-103(b) of the Courts and Judicial Proceedings Article. 1 They argue further that the conspiracy theory violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution by not satisfying the minimum contacts test required by Int’l Shoe Co. v. Washington, 326 U.S. 310 , 66 S.Ct. 154 , 90 L.Ed. 95 (1945), and its progeny because it permits the contacts of one person with the forum state to serve as the contacts of another person for purposes of the minimum contacts test. Appellee Compass Marketing urges this Court to recognize the conspiracy theory. In response to appellants’ arguments, appellee notes that the majority of jurisdictions that have considered this issue have recognized the conspiracy theory of ¹²⁵ jurisdiction. Appellee recommends that we adopt the standard set out in Cawley v. Bloch, 544 F.Supp. 133 (D.Md.1982).

Appellee contends that Cawley’s requirement that it be reasonable for the co-conspirators to expect that their contemplated conspiracy will lead to consequences in a particular forum gives the co-conspirators fair warning sufficient to satisfy due process concerns that they could be subject to the forum’s jurisdiction because of acts done in furtherance of the conspiracy.

III

The question of whether Maryland recognizes the conspiracy theory of jurisdiction as a matter of state law presents an issue of first impression for this Court. It is clear today that physical presence within a state is not a necessary prerequisite to the proper assertion of personal jurisdiction and that under most states’ long-arm statutes, certain acts and effects of those acts may be the basis for a court to exercise jurisdiction of a nonresident as well as a person who has not physically entered within the territorial borders of the state. Courts have drawn routinely from the substantive law of agency to justify the exercise of personal jurisdiction over nonresident defendants. Imputation, or attribution, of jurisdictional contacts is not a new notion.

It is long-established that personal jurisdiction may be exercised over a nonresident defendant on the basis of the actions of the nonresident defendant’s agent. Maryland’s long-arm statute explicitly grants jurisdiction over a principal based on acts performed through an agent. See § 6—103(b) (providing for exercise of personal jurisdiction over someone who performs acts enumerated in statute personally or “by an agent”). 2 Since the ¹²⁶ inception of the International Shoe line of jurisprudence, the Supreme Court has not expressed any doubt that the acts of corporate agents may be attributed to a corporation for purposes of determining whether personal jurisdiction is proper over the principal. See Int’l Shoe, 326 U.S. at 316-19 , 66 S.Ct. at 158-60 (holding that, because “the corporate personality is a fiction,” whether a corporation’s contacts with a forum are sufficient to subject it to suit in that forum is determined by reference to the “activities carried on in its behalf by those who are authorized to act for it”).

Analogous to the agency concept of jurisdiction is the conspiracy theory of jurisdiction. Under this theory, an out-of-state party involved in a conspiracy who would lack sufficient, personal, “minimum contacts” with the forum state if ¹²⁷ only the party’s individual conduct were considered nevertheless may be subject to suit in the forum jurisdiction based upon a co-conspirator’s contacts with the forum state. The basic premise of the conspiracy theory of personal jurisdiction is that certain acts of one co-conspirator that are done in furtherance of a conspiracy may be considered to be the acts of another co-conspirator for purposes of determining whether a forum state may exercise personal jurisdiction over the other co-conspirator. Put differently, the conspiracy theory permits certain actions done in furtherance of a conspiracy by one co-conspirator to be attributed to other co-conspirators for jurisdictional purposes.

Courts around the country have utilized conspiracy concepts to establish personal jurisdiction. See, e.g., Leasco Processing Equip. Corp. v. Maxwell, 468 F.2d 1326 (2d Cir.1972). 3 ¹²⁸ Courts adopting the conspiracy theory of personal jurisdiction have recognized that this use of the fact of a conspiracy to attribute the contacts of one co-conspirator to another co-conspirator for jurisdictional purposes is an extension of the principle that the acts of one civil co-conspirator are attributed to other co-conspirators for purposes of determining the civil liability of the participants in the conspiracy. See, e.g., Textor, 711 F.2d at 1392 (noting that “[t]he ‘conspiracy theory’ of personal jurisdiction is based on the ‘time honored notion that the acts of [a] conspirator in furtherance of the conspiracy may be attributed to the other members of the conspiracy.’ ” (quoting Gemini Enterprises, 470 F.Supp. at 564) (alterations in original)).

It is well established in Maryland law that a conspirator can be liable for the conduct of a co-conspirator. A civil conspiracy has been defined in Maryland as “a combination of two or more persons by an agreement or understanding to accomplish an unlawful act or to use unlawful means to accomplish an act not in itself illegal, with the further requirement that the act or the means employed must result in damages to the plaintiff.” Hoffman v. Stamper, 385 Md. 1, 24 , 867 A.2d 276, 290 (2005) (quoting Green v. Wash. Sub. San.

Comm’n, 259 Md. 206, 221 , 269 A.2d 815, 824 (1970)). The plaintiff must prove an unlawful agreement, the commission of an overt act in furtherance of the agreement, and that as a result, the plaintiff suffered actual injury. Id. at 25, 867 A.2d at 290 . The unlawful agreement is not actionable by itself; rather, the “[t]ort actually lies in the act causing the harm” to the plaintiff.

Id. Thus, civil conspiracy is not “capable of independently sustaining an award of damages in the absence ¹²⁹ of other tortious injury to the plaintiff.” Id. (internal citations and quotations omitted). In the often cited case of Cawley v. Bloch, 544 F.Supp. 133, 135 , (D.Md.1982), the United States District Court for the District of Maryland discussed the conspiracy theory of jurisdiction.

Judge Joseph H. Young explained that the conspiracy theory of jurisdiction is based on two principles: (1) that the acts of one co-conspirator are attributable to all co-conspirators, and (2) that the constitutional requirement of minimum contacts between non-resident defendants and the forum can be met if there is a substantial connection between the forum and a conspiracy entered into by such defendants. The court articulated the theory as follows: “Under that doctrine, when (1) two or more individuals conspire to do something (2) that they could reasonably expect to lead to consequences in a particular forum, if (3) one co-conspirator commits overt acts in furtherance of the conspiracy, and (4) those acts are of a type which, if committed by a nonresident, would subject the non-resident to personal jurisdiction under the long-arm statute of the forum state, then those overt acts are attributable to the other co-conspirators, who thus become subject to personal jurisdiction in the forum, even if they have no direct contacts with the forum.” Id. at 135 . We shall recognize this version of the theory, based on the premise that one co-conspirator is acting as the agent of the others, and that those acts are acts of the other co-conspirator done “by an agent” within the meaning of § 6-103(b) of the Maryland long-arm statute. We now turn to the issue posed by the first certified question: whether Maryland recognizes the conspiracy theory of jurisdiction.

Determination of personal jurisdiction is a two-step process. First, the requirements under the long-arm statute must be satisfied, and second, the exercise of ¹³⁰ jurisdiction must comport with due process. Maryland has construed our long-arm statute to authorize the exercise of personal jurisdiction to the full extent allowable under the Due Process Clause. See, e.g., Beyond v. Realtime, 388 Md. 1, 15 , 878 A.2d 567, 576 (2005); Geelhoed v. Jensen, 277 Md. 220, 224 , 352 A.2d 818, 821 (1976).

Thus, the evaluation becomes one of determining whether the defendant’s actions satisfy the minimum contacts required by due process so that “maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int’l Shoe, 326 U.S. at 316 , 66 S.Ct. at 154 . The Court must be assured that defendant’s contacts with Maryland “are such that he should reasonably anticipate being haled into court there.” World-Wide. Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 , 100 S.Ct. 559, 567 , 62 L.Ed.2d 490 (1980). Although this question is ultimately one of Maryland statutory law, its resolution requires us to first consider whether the conspiracy theory of personal jurisdiction is consistent with the Due Process Clause.

This is so for two reasons. First, if the conspiracy theory were inconsistent with due process, that inconsistency would require us to reject the conspiracy theory as an interpretation of the long-arm statute. See Nationsbank v. Stine, 379 Md. 76, 86 , 839 A.2d 727, 733 (2003) (in deciding between competing constructions of a statute, we prefer the construction that avoids raising a constitutional issue). Maryland courts, of course, would not exercise jurisdiction over a non-resident defendant if it were inconsistent with due process.

Second, as noted above, we interpret the long-arm statute in light of the intent of the General Assembly to extend personal jurisdiction to the limits permitted by the Due Process Clause. A. Due Process and the Conspiracy Theory of Personal Jurisdiction We conclude that the conspiracy theory of personal jurisdiction is consistent with the Due Process Clause of the Fourteenth Amendment. The central due process issue raised by the conspiracy theory is whether the relationship between ¹³¹ co-conspirators specified by the conspiracy theory is sufficient to justify the attribution contemplated by the theory. The legal relationship of one party to another may affect the jurisdictional balance; under the attribution method, the legal relationship between two or more persons may be such that it is reasonable to attribute the jurisdictional contacts of one party to the other.

The effect of attribution is that the contacts that permit jurisdiction over the first party may be used against the second, thereby establishing jurisdiction over that party also. Applied to the conspiracy theory of jurisdiction, the acts of a co-conspirator in furtherance of the conspiracy may be attributed to other co-conspirators if the requirements of the conspiracy theory are met. The attribution principle enables a court to exercise jurisdiction over nonresidents involved in a conspiracy when a co-conspirator performs jurisdictionally sufficient acts in furtherance of the conspiracy. The use of contact attribution for purposes of establishing personal jurisdiction over nonresident defendants is well-established in the Supreme Court’s minimum contacts due process jurisprudence.

As discussed, supra, International Shoe itself established that attribution of the acts of an agent for personal jurisdiction purposes is consistent with due process. Likewise, courts applying the International Shoe standard have held that actions of a partner in the scope of the partnership’s business may be attributed to a partnership. See, e.g., Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir.1990) (holding that, because “[f]or purposes of personal jurisdiction, the actions of an agent are attributable to the principal,” the acts of a partner are treated as acts of the partnership for purposes of determining whether personal jurisdiction is proper over the partnership if the acts are treated as acts of the partnership under applicable state partnership law). Courts applying International Shoe and its progeny have held also that the actions of a subsidiary corporation may be attributed to a parent corporation under some circumstances, even if it would not necessarily be appropriate to pierce the corporate veil between the parent and the subsidiary.

See, e.g., Gallagher v. Mazda Motor of Am., Inc., 781 F.Supp. 1079 , 1085 ¹³² (E.D.Pa.1992) (holding that the acts of a subsidiary may be attributed to a parent for jurisdictional purposes if the parent would have done these acts itself if the subsidiary did not exist); Bulova Watch Co., Inc., v. K. Hattori & Co., Ltd., 508 F.Supp. 1322, 1342 (E.D.N.Y.1981) (same). Finally, in World-Wide Volkswagen, the Supreme Court addressed the issue of when the actions of distributors of a manufacturer’s goods may be attributed to a manufacturer for jurisdictional purposes. In World-Wide Volkswagen, the defendant, World-Wide, was a regional distributor of Volkswagen automobiles, selling to dealerships in New York, New Jersey, and Connecticut that then sold the cars to residents of those states. World-Wide Volkswagen, 444 U.S. at 298 , 100 S.Ct. at 567 .

Given that its products were not distributed to retailers who sold into Oklahoma, the forum at issue, World-Wide did not place its cars into the stream of commerce with the expectation that they would be purchased by Oklahoma consumers. Id. at 297-98 , 100 S.Ct. at 567 . Consequently, the Court concluded that World-Wide could not have reasonably anticipated facing a suit in Oklahoma based upon allegations that these automobiles were defective. Id. at 296-97 , 100 S.Ct. at 566-67 (rejecting this view because under it “[ejvery seller of chattels would in effect appoint the chattel his agent for service of process”).

The World-Wide Volkswagen Court, however, held that a manufacturer could be subject to jurisdiction in a forum state if it “delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” Id. at 298 , 100 S.Ct. at 567 . Thus, the Court effectively held that the acts distributors take in distributing a manufacturer’s products into a particular forum state may be attributed to the manufacturer for purposes of obtaining personal jurisdiction over the manufacturer in the state if the manufacturer placed its products into the stream of commerce with the expectation that they would eventually be purchased in the state. We conclude that the conspiracy theory of jurisdiction does not violate due process. We find that the relationship between co-conspirators contemplated by the conspiracy theory ¹³³ is similar to the relationship that the Supreme Court deemed sufficient in World-Wide Volkswagen to warrant attribution of the acts of a distributor of goods to the manufacturer of the goods.

We further conclude that the relationship between co-conspirators contemplated by the conspiracy theory is different than the relationships that the Supreme Court has found insufficient for attribution. In Burger King Corp. v. Rudzewicz, 471 U.S. 462 , 105 S.Ct. 2174 , 85 L.Ed.2d 528 (1985), Justice Brennan provided a helpful synthesis of the Supreme Court’s due process personal jurisdiction jurisprudence. Justice Brennan explained that a central purpose behind the due process minimum contacts requirement of International Shoe is to ensure that “individuals have ‘fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign.’ ” Id. at 471-72 , 105 S.Ct. at 2181 -82 (quoting Shaffer v. Heitner, 483 U.S. 186 , 218, 97 S.Ct. 2569, 2587 , 53 L.Ed.2d 683 (1977) (Stevens, J., concurring)). This “fair warning” requirement serves the further purpose of ensuring that potential defendants can with reasonable certainty predict the fora in which they may be forced to defend suits if they engage in certain types of conduct.

See id. at 472, 105 S.Ct. at 2182 . This in turn permits “ ‘potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.’ ” Id. (quoting World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567 ). It was this due process concern that, without fair warning that a potential defendant may be subject to suit in a particular forum, the potential defendant would be unable to plan its activities so as to take into account the possibility of defending a suit in that forum that led the World-Wide Volkswagen Court to delineate the scope of the stream of commerce theory as it did.

In Burger King, Justice Brennan explained that the fair warning requirement is satisfied if a defendant purposefully directs activities at the forum state and litigation arises out of those activities. See id. at 472-73, 105 S.Ct. at 2182 . He then applied that principle to the Court’s holding in ¹³⁴ World-Wide Volkswagen, noting that the fair warning requirement explains the Court’s conclusion in World-Wide Volkswagen that a manufacturer must expect that its products will be distributed in a particular forum when it places them in the stream of commerce in order to be subject to suits related to those products in that forum. See id.

As the World-Wide Volkswagen Court noted, World-Wide’s lack of fair warning that it may face suit in Oklahoma by selling cars to dealerships in the Northeast left it unable to “act to alleviate the risk of ... litigation by procuring insurance, passing the expected costs on to customers, or ... severing its connection with the State.” World-Wide Volkswagen, 444 U.S. at 297 , 100 S.Ct. at 567 . The relationship between co-conspirators required by the conspiracy theory ensures that a co-conspirator subjected to the personal jurisdiction of a forum state under the theory has fair warning that he or she could be subjected to suit in the forum state sufficient to satisfy the due process concerns about fair warning of the possibility of suit that motivated the World-Wide Volkswagen Court. According to the conspiracy theory, a co-conspirator can be subjected to the personal jurisdiction of a particular forum only if the co-conspirator had a reasonable expectation, at the time the co-conspirator agreed to participate in the conspiracy, that acts to be done in furtherance of the conspiracy by another co-conspirator would be sufficient to subject that other co-conspirator to personal jurisdiction in the forum. Civil co-conspirators can be held hable for the acts of other co-conspirators done in furtherance of their conspiracy.

See Hoffman v. Stamper, 385 Md. 1, 24-25 , 867 A.2d 276, 290 (2005). Thus, a co-conspirator who agrees to participate in a conspiracy that the co-conspirator reasonably anticipated or could be said to have reasonably anticipated at the time of agreeing to enter it will result in acts done in furtherance of the conspiracy sufficient to subject another co-conspirator to the personal jurisdiction of a particular forum can also reasonably anticipate being subject to suit in that forum by entering into the conspiracy. ¹³⁵ It is important to note that under the conspiracy theory, acts of one co-conspirator done in the course of the conspiracy that subject that co-conspirator to personal jurisdiction in a particular forum are attributed to another co-conspirator only if the other co-conspirator reasonably expects at the time the other conspirator agreed to participate in the conspiracy that such acts will be done and that such acts will subject the co-conspirator who performs them to the personal jurisdiction of the forum state. This requirement, that the reasonable expectation be present at the time the co-conspirator agrees to the conspiracy, satisfies the World-Wide Volkswagen requirement that personal jurisdiction is proper over a person in a particular forum. If a person contemplating entering into a conspiracy wishes to avoid being subject to the personal jurisdiction of a particular forum based on the forum-related actions of another co-conspirator, that person can simply refrain from entering into the conspiracy, or can agree to enter into the conspiracy only if it is modified so that it does not contemplate actions directed at the forum the person wishes to avoid.

Because the conspiracy theory gives one subject to personal jurisdiction in a forum the ability to avoid in advance being subject to suit in the forum, it satisfies the fundamental due process requirement that a defendant can be involuntarily subjected to the personal jurisdiction of a forum only if the defendant “purposefully avails itself of the privilege of conducting activities in the forum state.” Hanson v. Denckla, 357 U.S. 235, 253 , 78 S.Ct. 1228, 1239-40 , 2 L.Ed.2d 1283 (1958); see Burger King, 471 U.S. at 474 , 105 S.Ct. at 2183 (“the constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts’ with the forum state”). World-Wide Volkswagen recognized that if a defendant’s activities are such that the defendant can reasonably anticipate being subject to suit in a forum by virtue of his or her intentional acts, the defendant has purposefully availed itself of privilege of conducting activities within the forum: “When a corporation ‘purposefully avails itself of the privilege of conducting activities within the forum State,’ it has clear notice that it is subject to suit there, and can act to ¹³⁶ alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State. Hence if the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others.” World-Wide Volkswagen, 444 U.S. at 297 , 100 S.Ct. at 567 (citations omitted). The conspiracy theory satisfies the World-Wide Volkswagen fair warning requirement, and therefore, it also satisfies the purposeful availment requirement as well.

Our conclusion that the conspiracy theory is consistent with due process is reinforced by comparison of the relation between co-conspirators required under the theory with the situations in which the Court has held that a relation between two parties is insufficient to warrant attribution of the acts of one party to the other for purposes of obtaining personal jurisdiction over the other party. The Supreme Court has held consistently that a person cannot be subject to personal jurisdiction in a particular forum based on the unilateral forum-related activities of a third party. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416-17 , 104 S.Ct. 1868, 1873 , 80 L.Ed.2d 404 (1984) (holding that acceptance of a check from a third party drawn on a bank located in the forum state cannot be considered in determining whether the acceptor of the check can be subjected to the personal jurisdiction of the forum state because it is the “unilateral activity of a ... third person”); Kulko v. Super. Ct., 436 U.S. 84, 93-94 , 98 S.Ct. 1690, 1697-98 , 56 L.Ed.2d 132 (1978) (holding that a forum state could not obtain personal jurisdiction over a parent in a custody action simply because the parent agreed to a visitation arrangement with the other parent and the other parent took the child to the forum state ¹³⁷ and initiated suit,