PERSONAL JURISDICTION OVER A FOREIGN DEFENDANT

by Richard M. Martin, Jr.

Your new maritime personal injury client, Bob, has presented you with the following unusual set of facts.  Do you tell him there is no jurisdiction?  Or do you file suit in a favorable jurisdiction? Let’s explore the facts first:

1.  Bob is from Mississippi, he’s already had a cervical neck fusion and was earning $175,000 per year overseas when he was injured.

2.  He was once employed by Offshore Rigs Inc., a Delaware corporation, offshore in the Gulf of Mexico;

3.  He was “transferred” on paper to a corporate cousin Jones Act employer, Offshore Rigs Limited, a Cayman Island corporation;

4.  He was assigned as a driller and crew-member of the D/S Jack-Up 1, owned by another corporate cousin, Offshore Rig Vessels Limited, a Cayman Island corporation;

5.  The vessel has Liberian registry;

6.  The D/S Jack-Up 1 is operating in the Persian Gulf in the territorial waters of Saudi Arabia;

7.  Bob’s payroll, employee benefits, and personnel functions are all handled by Offshore Rigs International, a corporate cousin in Houston, Texas.

8.  Another corporate cousin, Offshore Rigs Arabia, is party to the drilling contract with Saudi Aramco;

9.  Offshore Rigs PLC, formerly Offshore Rigs, Inc., of Texas, but now a British corporation headquartered in London, oversees all of the activities of its wholly owned subsidiaries

10.  Both Saudi Aramco and Bob’s employer, “Offshore Rigs Limited”, require current helicopter underwater escape training certification as a mandatory condition of working offshore on D/S Jack-Up 1;

11.  Offshore Rigs Limited does all the paperwork and sends Bob to a training course to get his helicopter escape training;

12.  Yet another corporate cousin, Offshore Rigs Financial, incorporated in another Middle East country which has yet to discover toilet paper, pays for his airfare, his hotel, his local transportation, and the training course tuition;

13.  The course is taught by Training LLC, a Malaysian corporation expressly selected by Bob’s Jones Act employer, Offshore Rigs Limited;

14.  Training LLC teaches the course at a swimming pool in Saudi Arabia;

15.  While struggling and unable to board a life raft in the pool, Bob called out for help, and was ignored by Training LLC’s employees, who don’t speak English;

16.  Other students, from the Philippines Islands, who don’t speak English either, grab Bob by the neck and pull him into the life raft; and

17.  Bob is injured and ultimately has a neck fusion.

The big question is not whether Bob is a Jones Act sailor, but where can Bob file suit? Can he file suit here in Louisiana? You figure the worst case scenario is a 28 USC § 1404 transfer to federal court in Houston. Because you like the “rocket docket” in the Eastern District, you file suit in federal court in New Orleans against Offshore Rigs PLC (British) and Offshore Rigs International (Texas). Offshore Rigs International has an agent for service in Texas, so it gets served promptly. But, how does Offshore Rigs PLC get served? Perhaps the Hague Convention?

Naturally, the defendants file a massive motion to dismiss – an associate on a 15 year track to junior partner has to show his stuff – and included in it is a section devoted to Rule 12(b)(2), lack of personal jurisdiction over the defendants.

This is where the internet becomes your friend. Five minutes of searching oftentimes yields a gold mine of useful information. Offshore Rigs PLC’s own webpage identifies its senior officers, and websites like Linked-In reveal that three of its senior vice presidents live and work in the very same Houston office building as all the Offshore Rigs International employees who handle all of plaintiff’s payroll, health insurance, and human resources benefits. These three persons include Offshore Rigs PLC’s senior vice presidents for “western hemisphere operations” and worldwide human resources. Ooooops…. maybe defense counsel should have looked too?

Now you can forget about the Hague Convention, and instead rely on FRCP 4(h)(1)(B) which allows service of summons and the complaint on “an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process.”

Yep, there’s almost nothing more satisfying than personal service on each of the three senior vice-presidents at their homes in Houston. At 10 pm at night. Especially when defense counsel has already represented face-to-face to the Court that Offshore Rigs PLC doesn’t have any employees present in the USA. No doubt defense counsel learned he had a problem before the proof of service got filed.

No, I didn’t make this stuff up. It’s what actually happened in O’Berry v. Ensco PLC, No. 16-3569 (ED La) which is now pending before US District Judge Susie Morgan. It’s my case. And I did keep jurisdiction here in New Orleans. But, before I explain the how and why, let’s look at the three ways how personal jurisdiction is obtained.

PERSONAL JURISDICTION

“Personal jurisdiction ‘is an essential element of the jurisdiction of a district court, without which it is powerless to proceed to an adjudication.’”1 When a non-resident defendant challenges personal jurisdiction in a motion to dismiss, the plaintiff bears the burden of proving that personal jurisdiction exits.2

If the district court rules on the motion without an evidentiary hearing, the plaintiff need only make a prima facie showing of personal jurisdiction.3 In determining whether the plaintiff has made a prima facie showing of personal jurisdiction, the district court must take the allegations of the complaint as true, except as controverted by opposing affidavits, and all conflicts in the facts must be resolved in favor of the plaintiff.4 Thus, the district court may consider matters outside the complaint, including affidavits, when determining whether personal jurisdiction exists.5

To exercise personal jurisdiction over a non-resident defendant, two requirements must be satisfied. “First, the forum state’s long-arm statute must confer personal jurisdiction. Second, the exercise of jurisdiction must not exceed the boundaries of the Due Process Clause of the Fourteenth Amendment.”6 Because Louisiana’s long-arm statute confers personal jurisdiction to the limits of constitutional due process, these two inquiries become one and the same.7

The Due Process Clause of the Fourteenth Amendment “operates to limit the power of a State to assert in personam jurisdiction over a nonresident defendant.”8 For a court’s exercise of personal jurisdiction over a non-resident defendant to be constitutional under the Due Process Clause, (1) “that defendant [must have] purposefully availed himself of the benefits and protection of the form state by establishing ‘minimum contacts’ with the forum state; and (2) the exercise of jurisdiction over that defendant [must] not offend ‘traditional notions of fair play and substantial justice.’”9

The “minimum contacts” test takes two forms, depending on the type of jurisdiction the court seeks to exercise over the defendant: general jurisdiction or specific jurisdiction.10 In addition, the Federal Rules of Civil Procedure provide for a third form of personal jurisdiction in cases arising under federal law known as Rule 4(k)(2) jurisdiction.

GENERAL JURISDICTION

A court may exercise general jurisdiction over a non-resident defendant when that defendant’s contacts with the forum state are “continuous and systematic,” regardless of whether such contacts are related to the plaintiff’s cause of action.11 Stated differently, “[g]eneral jurisdiction will attach, even if the act or transaction sued upon is unrelated to the defendant’s contacts with the forum state, if the defendant has engaged in ‘continuous and systematic’ activities in the forum state.”12 Examples of a foreign business entity conducting “continuous and systematic activities” is WalMart or Home Depot.

In Goodyear Dunlop Tires Operations, S.A. v. Brown, the Supreme Court explained, “for an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s domicile; for a corporation it is an equivalent place, one in which the corporation is fairly regarded as at home.”13 That is, the corporation must have substantial, continuous, and systematic contacts with the forum state so as to “render [it] essentially at home in the forum state.”14 “It is, therefore, incredibly difficult to establish general jurisdiction in a forum other than the place of incorporation or principal place of business.”15

To make a prima facie showing of general jurisdiction, the plaintiff must produce evidence that affirmatively shows that the target defendant’s contacts with Louisiana – unrelated to the plaintiff — are sufficient to satisfy due process requirements.16 These unrelated contacts must be so substantial, continuous and systematic so as to render it essentially at home in Louisiana.17

In other words, the plaintiff must show Louisiana is a place “in which [the defendant] is fairly regarded as home.”18 Given the high threshold required to show that general jurisdiction exists over a defendant in a forum other than its place of incorporation or its principal place of business, it is often impossible for the Plaintiff to make a prima facie showing of general jurisdiction.

This comports with the U.S. Supreme Court’s brand new May 30, 2017 decision in BNSF Railway Co. v. Tyrrell,19 an 8-1 opinion, which confirmed the central holding in Daimler that the paradigm forum for the exercise of general personal jurisdiction over a corporation is its state of incorporation or its principal place of business. But, while this makes sense when the defendant is a U.S. domestic corporation with its place of incorporation or principal place of business readily accessible to the plaintiff, what about the foreign corporation contending it has no presence whatsoever in the U.S.? What about specific jurisdiction?

SPECIFIC JURISDICTION

When the defendant’s contacts are less pervasive, a court may exercise specific jurisdiction over a non-resident defendant “in a suit arising out of or related to the defendant’s contacts with the forum.”20 Specific jurisdiction exists, for example, where a non-resident defendant “has ‘purposefully directed its activities at the forum state and the litigation results from alleged injuries that arise out of or relate to those activities.’”21 Specific jurisdiction also exists where a non-resident defendant “purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws.”22 The non-resident’s ‘purposeful availment’ must be such that the defendant ‘should reasonably anticipate being haled into court’ in the forum state.”23 This could be any foreign business entity which has no offices, facilities, or employees in Louisiana, but sells its products to customers in Louisiana via the internet.

The U.S. Fifth Circuit has established a three-factor analysis to guide courts in assessing the presence of specific personal jurisdiction:

(1) Whether the defendant has minimum contacts with the forum state, i.e., whether it purposely availed itself of the privileges of conducting activities there;
(2) Whether the plaintiff’s cause of action arises out of or results from the defendant’s forum-related contacts; and
(3) Whether the exercise of personal jurisdiction is fair and reasonable.24

To make a prima facie showing of specific personal jurisdiction, the plaintiff need only satisfy the first two factors.25 “Although jurisdictional allegations must be accepted as true, such acceptance does not automatically mean that a prima facie case for specific jurisdiction has been presented.26

Establishing a prima facie case still requires the plaintiff to show the nonresident defendant’s purposeful availment of the benefits and protections of and minimum contacts with the forum state.”27 A court has specific jurisdiction over a tort only if the plaintiff proves that his injuries arise out of or result from the defendant’s purposefully directed activities toward the forum state.28

A district court need not credit conclusory allegations, even if uncontroverted.29 The plaintiff may be required to produce evidence affirmatively demonstrating the defendant’s purposeful availment of the benefits and protections of and minimum contacts with the forum state.30

Meanwhile, back to the problem of the foreign corporation. If general jurisdiction isn’t available, and you can’t show specific jurisdiction exists through the defendant’s purposeful availment of the benefits and protections of the forum state, are you out of luck keeping the case in federal court in New Orleans? Maybe not. Consider Rule 4(k)(2) jurisdiction.

RULE 4(k)(2) JURISDICTION

Jurisdiction under Fed. R. Civ. P. 4(k)(2) is a second species of general jurisdiction. If your practice is mostly before the state courts of Louisiana, you will probably never need to use this Rule to keep a defendant in your local federal court. But, if you have a maritime practice mainly in the federal courts, Rule 4(k)(2) is a wonderful way to obtain personal jurisdiction over a foreign defendant. Rule 4(k)(2) provides:

For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:

(A) The defendant is not subject to jurisdiction in any state’s court of general jurisdiction; and

(B) Exercising jurisdiction is consistent with the United States Constitution and laws.31

The Rule was enacted to fill an important gap in the jurisdiction of federal courts in cases arising under federal law:

Thus, there was a gap in the court’s jurisdiction: while a defendant may have sufficient contacts with the United States as a whole to satisfy due process concerns, if she had insufficient contacts with any single state; she would not be amendable to service by a federal court sitting in that state . . . Rule 4(k)(2) was adopted in response to this problem of a gap in the courts’ jurisdiction . . .32

“The Fifth Circuit has adopted the burden-shifting framework adopted by the U.S. Court of Appeal for the Seventh Circuit.”33 Under this framework:

The Plaintiff must make a prima facie case that the rule applies by “showing (1) that the claim asserted arises under federal law, (2) that personal jurisdiction is not available under any situation-specific federal statute, and (3) that the putative defendant’s contacts with the nation as a whole suffice to satisfy the applicable constitutional requirements. Additionally, the plaintiff must certify that, based on the information that is readily available to the plaintiff and his counsel, the defendant is not subject to suit in the courts of general jurisdiction of any state. Once plaintiff has made a prima facie case, then the burden shifts to the defendant to produce evidence that demonstrates that it is subject to jurisdiction in another state and/or that it has sufficient contacts with the United States as a whole.34 (Emphasis added.)

The Fifth Circuit has concluded that (1) cases falling under a federal court’s admiralty jurisdiction are “claim[s] arising under federal law” for the purpose of Rule 4(k)(2).35 Therefore, Rule 4(k)(2) applies if the plaintiff can demonstrate that “(2) the defendant in question is not subject to the general jurisdiction of any other state, and (3) that exercising jurisdiction is consistent with the due process clause of the Fifth Amendment, meaning that the defendant has sufficient minimum contacts with the United States as a whole.”36

Making this task far easier to accomplish, “The Fifth Circuit has held that a ‘piecemeal analysis of the existence vel non of jurisdiction in all fifty states is not necessary. Rather, so long as a defendant does not concede jurisdiction in another state, a court may use 4(k)(2) to confer jurisdiction.'”37 “If . . . the defendant contends that he cannot be sued in the forum state and refuses to identify any other where suit is possible, then the federal court is entitled to use Rule 4(k)(2).”38

But a condition attached to this form of general jurisdiction, there is a temporal aspect of defendant’s “minimum contacts with the United States as a whole.” In Patterson v. Aker Solutions, Inc.,39 the Fifth Circuit held that the temporary presence of seven employees in the U.S. did not satisfy the due process concerns for exercising personal jurisdiction over Aker under Rule 4(k)(2).

This was not an issue in O’Berry, because the foreign defendant’s employees lived and worked in Houston.

THE O’BERRY CASE

Bob and his hypothetical facts are actually the real life facts in O’Berry v. Ensco PLC, et al., where ENSCO PLC, a British holding corporation, filed a Rule 12(b)(2) motion to dismiss and denied being present anywhere in the U.S. By that time, plaintiff already knew about the three senior vice-presidents living in Houston and was arranging their personal service.40 Next, instead of a issuing a Rule 30(b)(6) notice, plaintiff served a Rule 30(b)(1) notice on Texas-based ENSCO International, Inc. This notice required ENSCO to produce for deposition “the most senior employee” in its Houston office. This tactic prevented defense counsel knowing what would be asked and from designating a witness with amnesia. When the senior employee testified, he readily admitted that he knew the three senior vice-presidents, that they lived in Houston, and that they worked in the same building.

Meanwhile, the Court had required the ENSCO defendants to file a memorandum clarifying whether general jurisdiction existed in any jurisdiction in the United States over ENSCO PLC. ENSCO PLC represented, “In this case, there is no basis for jurisdiction in any specific District Court because [it does] not have any contact with the United States and [is a] foreign corporation that maintain[s] all of [its] activities overseas.”41 Judge Morgan found that ENSCO PLC had sufficient contacts with the United States as a whole such that exercising jurisdiction over it pursuant to Rule 4(k)(2) did not exceed the boundaries of the due process clause of the Fourteenth Amendment.42

Almost immediately, ENSCO PLC’s three senior vice-presidents were personally served and for the very first time, ENSCO PLC was stuck in an American federal court. Perhaps the biggest problem for ENSCO PLC (or any other defendant who is subject to Rule 4(k)(2) general personal jurisdiction) is that it can now be sued in any federal district court. Why? Because unlike the U.S.-based defendant in Tyrrell which had to be sued where it was incorporated or where it had its principal place of business, a Rule 4(k)(2) defendant by definition has no U.S. place of incorporation or U.S. principal place of business.43 Therefore, if it has sufficient contacts with the United States as a whole such that exercising jurisdiction does not exceed the boundaries of the due process clause of the Fourteenth Amendment, such a defendant can likely be sued in any federal district court.44

PROFESSOR ROBERT FORCE’S VIEW ON TYRRELL AND RULE 4(k)(2)

While preparing this article, I was fortunate to receive a scholarly analysis of O’Berry and Tyrrell from Professor Robert Force, who is the Niels F. Johnsen Professor of Maritime Law at Tulane Law School and the Director Emeritus of the Tulane Maritime Law Center. Here is what Professor Force wrote to me:

“The United States Supreme Court held that § 56 of the Federal Employers Liability Act which allows an FELA suit to be brought in any place “in which the defendant shall be doing business at the time of commencing of the action.” is a statute that deals with venue, not personal jurisdiction. BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549 (2017). Notwithstanding the fact that the railroad had 2,000 miles of track in Montana and employed over 2,000 workers in Montana, this was not sufficient to make the corporation “at home” there.

Merely doing business in the state can be insufficient to confer jurisdiction. The employee was not injured in Montana and was not a citizen of Montana, therefore, there was no basis for exercising specific jurisdiction and the claim for general jurisdiction also failed. Thus, the court’s holding in Daimler is being applied across the board.

This makes questionable the decision of the District Court for the Eastern District of Louisiana in O’Berry v. Ensco Intern’l, LLC.45 In that case, the court found that there was no basis for general jurisdiction following the lead of the Supreme Court and inasmuch as the incident did not occur in the state, there was no basis for specific jurisdiction. Instead, the court upheld jurisdiction under § 4(k)(2) of the Federal Rules of Civil Procedure.

The Supreme Court’s recent decisions cast doubt as to whether or not § 4(k)(2) can satisfy the due process clause. It should be noted, however, that suit was brought in a state court not a federal court. One may argue the Section 4(k)(2) confers jurisdiction in United States District Court. Therefore, the issue is different because the question is whether the United States District may exercise personal jurisdiction. The focus shifts from whether the defendant is at home in a particular state to whether the defendant is at home in the United States. But remember Daimler dealt with a case brought in federal court.”

A FEW FINAL THOUGHTS

In O’Berry, a Jones Act case filed originally in federal court, and where the foreign defendant had no domestic place of incorporation or principal place of business, Judge Morgan applied a “sufficient contacts with the U.S. as a whole” test, recognized a temporal factor, and upheld jurisdiction
.
In Tyrrell, a Montana state court case, jurisdiction always existed in the state courts where the domestic U.S. defendant was incorporated, or where its principal place of business was located. If the parties were diverse, jurisdiction existed in the federal courts in those respective districts. However, the plaintiff forum-shopped and an appeal from the Montana Supreme Court to the U.S. Supreme Court ended that tactic. Tyrrell presents a very simple rule for state court or diversity-based federal court: if the accident didn’t occur in the “target” forum, and the plaintiff isn’t a citizen of the “target” forum, you can’t file suit there unless the defendant is incorporated or has its principal place of business there.46

This rule does not apply to federal court cases like O’Berry because Fed. R. Civ. P. 4(k)(2) doesn’t apply in state courts. Further, in the absence of a domestic U.S. place of incorporation or principal place of business, the only jurisdictional yardstick left is whether the foreign defendant has “sufficient contacts with the U.S. as a whole”. In turn, this constitutional analysis appears to be wholly-controlled by a subjective judicial determination of time.47 Perhaps the Fifth Circuit or the U.S. Supreme Court will ultimately fashion a Chandris– type test to distinguish temporary presence from one that is “substantial in its duration”.48 Until that time, Rule 4(k)(2) jurisdiction will likely be determined on a case by case basis.

1 Anderson v. GlobalSantaFe Offshore Services, Inc., 924 F. Supp. 2d 738, 742 (E.D. La. 2013) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)).

2 Luv N’ Care, Ltd. v. Insta-Mix, Inc., 438 F. 3d 465, 469 (5th Cir. 2006) (citing Wyatt v. Kaplan, 686 F.2d 276, 280 (5th Cir. 1982)).

3 See id.

4 Id. See also Thompson v. Chrysler Motors Corp., 755 F. 2d 1162, 1165 (5th Cir. 1985).

5 Jobe v. ATR Mktg., Inc., 87 F.3d 751, 753 (5th Cir. 1996).

6 Seiferth v. Helicopters Atuneros, Inc., 472 F. 3d 266, 270 (5th Cir. 2006) (citation omitted).

7 Luv N’ Care, 438 F.3d at 469; La. R.S. 13:3201(B).

8 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14 (1984).

9 Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 21999) (citation omitted).

10 For a recent and extremely through discussion of general and specific jurisdiction, see U.S. District Judge Kurt Engelhardt’s Order and Reasons (R. Doc. 30) in Ergon Oil Purchasing, Inc. v. Canal Barge Co., Inc., No. 16-5884 (E.D. La. March 2017)

11 Id. (citing Helicopteros, 446 U.S. at 413-14).

12 721 Bourbon, Inc. v. House of Auth, LLC, 140 F. Supp. 3d 586, 592 (E.D. La. 2015) (citations omitted).

13 564 U.S. 915, 924 (2011).

14 Daimler AG v. Bauman, 134 S. Ct. 746, 754 (2014) (citing Goodyear, 564 U.S. 915).

15 Monkton Ins. Servs., Ltd. v. Ritter, 768 F. 3d 429, 432 (5th Cir. 2014) (citing Daimler AG, 134 S. Ct. AT 760; Helicopteros, 466 U.S. at 411-12).

16 See Alpine View Co.. Ltd. v. Atlas Copco AB, 205 F. 3d 208, 217 (5th Cir. 2000) (citations omitted).

17 See Id. (citations omitted); Daimler AG, 134 S. Ct. at 760.

18 See Anderson, 924 F. Supp. 2d at 744 (quoting Goodyear, 564 U.S. at 922-23).

19 581 U.S. __, 137 S. Ct. 1549 (2017)

20 Luv N’ Care, 438 F. 3d at 469.

21 Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F. 3d 865, 868 (5th Cir. 2001) (quoting Alphine View Co. v. Atlas Copco A.B., 205 F. 3d 208, 215 (5th Cir. 2000)).

22 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (citing Hanson v. Denckla, 357 U.S. 235, 253 (1958)).

23 Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F. 3d 415, 419 (5th Cir. 1993) (quoting World-Wide Volkswagen Corp. V. Woodson, 444 U.S. 286, 297 (1980)).

24 Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F. 3d 374, 378 (5th Cir. 2002); Luv N’ Care, 438 F. 3d at 469.

25 Athletic Training Innovations, LLC v. eTagz, Inc., 955 F. Supp. 2d 602, 613 (E.D. La. 2013). See also 721 Bourbon, 140 F. Supp. 3d AT 592-93; Luv N’ Care, 438 F. 3d at 469. If the plaintiff makes a prima facie showing, the burden of proof with respect to the third factor shifts to the defendant to “present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Autogenomics, Inc. v. Oxford Gene Tech., 566 F. 3d 1012, 1018-19 (Fed. Cir. 2009). See also Athletic Training Innovations, supra, at 613.

26 Panda Brandywine Corp., 253 F. 3d at 868.

27 Id. (citing Burger King, 471 U.S. AT 474 (“[T]he constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts’ in the forum State.”)).

28 Anderson, 924 F. Supp. 2d at 745 (citing Clark v. Moran Towing & Transp. Co., Inc., 738 F. Supp. 1023 (E.D. La. 1990)).

29 Id. at 869 (citing Felch v. Transportes Lar-Mex, 92 F. 3d 320, 326 n.16 (5th Cir. 1996)).

30 Id. (“Appellants’ sole evidence is their state court petition, which alleges ‘on information and belief that Appellee knew Appellants are Texas residences and knew its actions would intentionally cause harm in Appellants in Texas. Appellants present no other evidence of Appellee’s contacts with Texas relating to Appellants’ claims, and thus the district court properly concluded that the allegations are merely conclusory.”).

31 Fed. R. Civ. P. 4(k)(2). Service was made upon ENSCO plc through personal service on three of its Senior Vice Presidents. See R. Doc. 25, 26, 27.

32 Adams v. Unione Mediterranea Di Sicurta, 364 F. 3d 646, 650-51 (5th Cir. 2004) (quoting World Tanker Carriers Corp. v. M/V Ya Mawlaya, 99 F. 3d 717, 721-22 (5th Cir. 1996)).

33 Johnson v. PPI Technology Services, L.P., 926 F. Supp. 2d 873, 882-83 (E.D. La. 2013)(citing ISI Int’l Inc. v. Borden Ladner Gervais LLP, 226 F. 3d 648 (7th Cir. 2001)).

34 Id. at 883 (citing United States v. Swiss American Bank, Ltd., 191 F. 3d 30, at 41 (1st Cir. 1999)).

35 See World Tanker Carriers Corp., 99 F. 3d at 723.

36 Johnson, 926 F. Supp. 2d at 882 (E.D. La. 2013) (citing Adams 364 F. 3d at 651).

37 Ogden v. GlobalSantaFe Offshore Services, 31 F. Supp. 3d 832, 839-40 (E.D. La. 2014) (quoting Adams, 364 F. 3d at 651).

38 Id. at 840. See also, Johnson, 926 F. Supp. 2d at 884-85. In Johnson, the defendant argued it should be required to stipulate to jurisdiction in some other forum as a result of its denial of jurisdiction in the court hearing its motion to dismiss. Id. at 884. The Fifth Circuit, rejecting defendant GSF’s argument, stated, “Unfortunately for GSF, that is exactly what the Fifth Circuit has stated that Rule 4(k)(2) requires it to do.” Id. The Court also explained, “Moreover, this Court has given Defendants ample opportunity to make such an assertion and, yet, Defendants have refused to do so.” Id.

39 826 F.3d 231, 235-37 (5th Cir. 2016).

40 These three senior vice-presidents were each personally served pursuant to Fed. R. Civ. P. 4(h)(1)(B) which authorizes service “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process”.

41 O’Berry, R. Doc. 68, at 2.

42 Given that Louisiana’s long-arm statute confers personal jurisdiction to the limits of constitutional due process, the Court need not further inquire as to whether its exercise of personal jurisdiction over ENSCO plc would violate Louisiana law. See Luv N’ Care, 438 F. 3d at 469; La. R.S. 13:3201(B).

43 Please note that Tyrrell differed factually from the typical tort suit in that neither the plaintiff nor the place of the injury were in Montana, where suit was filed. Perhaps the U.S. Supreme Court has only denied personal jurisdiction under these limited circumstances, and is telling us that “doing business” in a state is not enough to confer general or specific personal jurisdiction if the accident befell a foreign plaintiff in another state.

44 This also comports with the venue provisions of 28 U.S.C. §1391(b), which provides that if there is no district in which an action may be brought as provided in this subsections (1) and (2), then an action may be brought in any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.

45 2017 WL 1048029 (E.D. La. 2017)

46 The same result would have likely have resulted in Tyrrell under the doctrine of forum non conveniens.

47 In O’Berry, personal jurisdiction under Rule 4(k)(2) was exercised over Ensco PLC because it had three senior vice-presidents semi-permanently living and working in Houston. In Patterson, the Fifth Circuit rejected personal jurisdiction under Rule 4(k)(2) because the Aker’s employees were only briefly in the U.S.

48 Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995) (Whether the employee’s connection to a vessel is substantial in both its duration and its nature.)

CategoryNews, Richard Martin

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