143 F.3d 24 (2nd Cir. 1998), 730, Chew v. Dietrich

Docket Nº:730, Docket 97-7476.
Citation:143 F.3d 24
Party Name:Patricia CHEW, Individually and as Administratrix of the Estate of Daren Chew, deceased and William Chew, Plaintiffs-Appellants, v. Bent DIETRICH, Defendant-Appellee.
Case Date:April 01, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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143 F.3d 24 (2nd Cir. 1998)

Patricia CHEW, Individually and as Administratrix of the

Estate of Daren Chew, deceased and William Chew,



Bent DIETRICH, Defendant-Appellee.

No. 730, Docket 97-7476.

United States Court of Appeals, Second Circuit

April 1, 1998

Argued Oct. 20, 1997.

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John A. Ciraldo, Perkins, Thompson, Hinckley & Keddy (David B. McConnell, on the brief), Portland, ME, for Appellants.

Cary R. Wiener, Kirlin, Campbell & Keating (Brett M. Popolow, Richard H. Sommer, on the brief), New York City, for Appellee.

Before: WINTER, Chief Judge, MESKILL, Circuit Judge, and MARTIN, [*] District Judge.

MARTIN, District Judge:

When Daren Chew agreed to sail in a race from Newport, Rhode Island to Bermuda as a member of the crew on a yacht owned by Bent Dietrich, the Due Process Clause of the United States Constitution was no doubt the furthest thing from their minds. Yet, as a result of Chew's tragic death on the return voyage and his parents' subsequent suit against Dietrich, this Court must explore the limits of the Due Process Clause to determine whether Dietrich, a German citizen residing in Hamburg, Germany, had sufficient contacts with the United States so that its courts may exercise personal jurisdiction over him.


In the summer of 1994, Dietrich entered his yacht S/V RAINBOW in the Newport to Bermuda race. Earlier in the year, the yacht had been in Florida undergoing repairs under the supervision of Robert Sharkey, whom Dietrich had hired as boatsman. After the repairs were completed, Sharkey, Dietrich, and some of Dietrich's friends

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sailed the boat up the East Coast, stopping at the Chesapeake Bay for some additional repairs, and then on to Newport for the race.

When the RAINBOW arrived in Newport, additional people were needed to complete the nine person crew for the race. According to Dietrich, Sharkey made it known that they were looking for additional crew members and, as a result, Chew joined them. There is no evidence that anyone but Sharkey was paid anything for serving on the crew, although Dietrich did pay for hotel rooms and some meals for the crew while they were in Bermuda. In addition, Dietrich paid the airfare back to the United States for at least one of the crew members.

At the time the yacht left Newport, it was Dietrich's intent to bring it back to Newport with some of the same crew members. There is some dispute between the parties concerning Chew's original plans for his return to the United States. In any event, after the boat arrived in Bermuda, Sharkey decided not to make the return trip to Newport, and Dietrich asked Chew to serve as skipper on the return voyage. During that voyage, the boat encountered heavy seas and Chew was swept overboard in international waters. Chew's body was never recovered.


In December 1995, Chew's parents commenced this action against Dietrich in the Southern District of New York. The record does not indicate how Dietrich, a citizen and resident of Germany, was served--an affidavit of service was never filed. Although the defendant's answer asserted a claim that he was not properly served, that contention was abandoned.

Dietrich moved to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, but agreed that the action could proceed in New York if he was subject to personal jurisdiction in either New York or Rhode Island. 1 Plaintiffs agreed that Dietrich was not subject to personal jurisdiction in New York but argued that he was subject to personal jurisdiction in Rhode Island. Thus, the parties argued to the District Court that the issue was one of Rhode Island law and cited various cases from the Rhode Island District Court and the First Circuit on the question whether Dietrich's contacts with Rhode Island were sufficient to warrant the exercise of personal jurisdiction.

The District Court recognized that Rhode Island's long-arm statute authorizes the exercise of personal jurisdiction to the full extent permitted under the Constitution. Since there was no relevant Rhode Island case law on the issue, the District Court focused its opinion "on First Circuit authority, since that is the body of precedent that would have been applied had plaintiffs brought suit in the District of Rhode Island." Chew v. Dietrich, No. 95 Civ. 10201, 1997 WL 124114, at * 3 n. 4 (S.D.N.Y. Mar. 18, 1997) (citing Aerogroup Int'l, Inc. v. Marlboro Footworks, Ltd., 956 F.Supp. 427, 436 n. 14 (S.D.N.Y.1996)). The District Court then carefully analyzed the First Circuit authorities and concluded that in order to sustain personal jurisdiction, the First Circuit generally requires a proximate causal nexus between the defendant's acts within the state and the plaintiff's injury. Id. at * 3. The District Court, however, recognized that some federal courts have adopted a broader "but for" standard for determining whether the defendant's acts in the forum state are sufficient to support the exercise of personal jurisdiction and that the First Circuit has adopted a similar standard in cases arising from commercial activities within the state. Id. at * 3-4. After concluding that the First Circuit would require a proximate causal nexus in a case such as this, the District Court found that the recruiting of Chew to serve on the crew of the RAINBOW was not a proximate cause of his death on the high seas and granted the motion to dismiss. This appeal follows.

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Our analysis of the question of personal jurisdiction over Dietrich starts from a premise different from that of the court below. The District Court accepted the assertion of the parties that it could exercise personal jurisdiction over Dietrich only if Rhode Island would exercise such jurisdiction. However, plaintiffs assert federal subject matter jurisdiction under the Jones Act, 46 U.S.C. app. § 688 (1994), the Death on the High Seas Act, 46 U.S.C. app. §§ 761-768 (1994), and general federal maritime law. When a complaint asserts federal jurisdiction, Rule 4 of the Federal Rules of Civil Procedure now "extends the reach of federal courts to impose jurisdiction over the person of all defendants against whom federal law claims are made and who can be constitutionally subjected to the jurisdiction of the courts of the United States." Purposes of Revision, Advisory Committee Notes, 1993 Amendments.

Rule 4(k) provides, in relevant part:

(1) Service of a summons or filing a waiver of service is effective to establish jurisdiction over the person of a defendant

(A) who could be subjected to the jurisdiction of a court of general jurisdiction in...

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