Dickson Marine Inc. v. Panalpina, Inc.

• Decision Date: 23 June 1999
• Docket Number: I,No. 97-30872,No. 4,4,97-30872
• Parties: DICKSON MARINE INCORPORATED; Dickson GMP International, Incorporated; Power Offshore Services Incorporated; Power Well Servicencorporated, Plaintiffs-Appellants, v. PANALPINA, INC.; Panalpina New Orleans; Panalpina Port Gentil; Air Sea Broker, A.G.; Air Sea Broker, S.A.; Air Sea Broker, Ltd.; SATRAM; SEMTS; and L'Union des Assurances de Paris, (UAP), Defendants, and Air Sea Broker, Ltd. and Panalpina Transports Mondiaux Gabon S.A., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 331

179 F.3d 331

DICKSON MARINE INCORPORATED; Dickson GMP International Incorporated; Power Offshore Services Incorporated; Power Well Service No. 4 Incorporated, Plaintiffs-Appellants, v. PANALPINA, INC.; Panalpina New Orleans; Panalpina Port Gentil; Air Sea Broker, A.G.; Air Sea Broker S.A.; Air Sea Broker, Ltd.; SATRAM SEMTS; and L'Union des Assurances de Paris, (UAP), Defendants, and Air Sea Broker, Ltd. and Panalpina Transports Mondiaux Gabon S.A., Defendants-Appellees.

No. 97-30872.

United States Court of Appeals, Fifth Circuit.

June 23, 1999.

David Sinnott Bland, King, LeBlanc & Bland, New Orleans, LA, for Plaintiffs-Appellants.

Andrew Struben deKlerk, Joseph Dwight LeBlanc, III, Frilot, Partridge, Kohnke & Clements, New Orleans, LA, for Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before DeMOSS, PARKER and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

The district court dismissed the Louisiana plaintiffs' actions against two foreign corporate subsidiaries of a multinational corporation on grounds of lack of personal jurisdiction in Louisiana as to one defendant and forum non conveniens as to the other. The Plaintiff argues that Louisiana is the proper forum for the actions because of an agency relationship or a lack of separate corporate identity between the corporations. For essentially the same reasons assigned by the district court, we affirm the district court's decision to reject the plaintiffs' arguments and dismiss their actions.

I.

The Plaintiffs, Dickson Marine, Inc., Dickson GMP International, Inc., Power Offshore Services, Inc., and Power Well Service No. 4, Inc. (collectively referred to as "Dickson"), brought these actions to recover for significant property damage to the DICKSON IV, a vessel owned and operated by Dickson.

In 1992 the DICKSON IV was operating off the coast of West Africa and was in need of repairs. To arrange for these repairs, Dickson contacted the New Orleans office of Panalpina, Inc., an American corporation based in New Jersey ("Panalpina-N.J."). Unable to help directly, Panalpina-N.J. referred Dickson to Air Sea Broker, Ltd. ("Air Sea"). Air Sea put Dickson in touch with Panalpina Transports Mondiaux Gabon S.A ("Panalpina Gabon") in Port Gentil, Gabon to handle the repairs. Panalpina Gabon did not have actual repair capabilities, but it subcontracted with SATRAM and SEMTS to conduct the necessary work. During the repair work, the DICKSON IV capsized.

In 1993, Dickson and its hull underwriters filed a "Zahlungsbefehl" in Switzerland against Air Sea. A Zahlungsbefehl (an order to pay) is a legal document that interrupts the statute of limitations and preserves a party's legal rights. Thereafter, in 1995 Dickson filed this suit in Louisiana state court against Panalpina-N.J., Panalpina Gabon (Incorrectly identified as Panalpina Port Gentil), Air Sea (Incorrectly identified as three separate companies), SATRAM, SEMUS, and L'Union des Assurance de Paris. Panalpina-N.J., Panalpina Gabon, and Air Sea removed the suit to Federal Court.

In the district court, Dickson released and dismissed SEMTS and L'Union des Assurance de Paris. SATRAM has not appeared and Dickson has not sought a default judgment against them. The action against Panalpina-N.J. was dismissed on summary judgment. Thus, the only defendants on appeal are Panalpina Gabon and Air Sea.

Panalpina Gabon is a Gabonese corporation with its principal place of business in Port Gentil, Gabon. Air Sea is a Swiss corporation with its principal place of business in Basel, Switzerland. Air Sea and Panalpina Gabon are subsidiaries of Panalpina World Transport, Inc. ("Panalpina World"), an international conglomerate having operations through subsidiaries on six continents. Air Sea acts as a coordination/liaison office for Panalpina World's subsidiaries on the Western Coast of Africa.

Panalpina Gabon filed a motion to dismiss for a lack of personal jurisdiction and Air Sea filed a motion for dismissal due to forum non conveniens in the district court. The district court granted both motions. Dickson is appealing the orders of the district court.

II.

The only issues Dickson brings before this Court are (1) did the district court commit error in granting Panalpina Gabon's motion to dismiss for lack of personal jurisdiction, and (2) did the district court abuse its discretion in granting Air Sea's motion of forum non conveniens.

III.

Absent any dispute as to the relevant facts, whether in personam jurisdiction can be exercised over a defendant is a question of law and subject to de novo review. Ruston Gas Turbines, Inc. v. Donaldson Co., Inc., 9 F.3d 415, 418 (5th Cir.1993).

A district court's dismissal for forum non conveniens is reviewed by a court of appeal for an abuse of discretion. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981). Appellate courts "review the lower court's decisionmaking process and conclusion and determine if it is reasonable," they do not "perform a de novo analysis and make the initial determination for the district court." In re Air Crash Disaster Near New Orleans, Louisiana, 821 F.2d 1147, 1167 (5th Cir.1987).

IV.

To exercise personal jurisdiction over a nonresident defendant, two requirements must be met. First, the nonresident defendant must be amenable to service of process under a State's long-arm statute. Jones v. Petty-Ray Geophysical, Geosource, Inc., 954 F.2d 1061, 1067 (5th Cir.1992). Second, the assertion of in personam jurisdiction must be consistent with the 14th Amendment's Due Process Clause. Id. Because Louisiana's long-arm statute extends to the limits of due process, we only need to determine if subjecting Panalpina Gabon to suit in Louisiana would offend the Due Process Clause of the 14th Amendment. See LSA-R.S. 13:3201(B). See also Petroleum Helicopters, Inc. v. Avco Corp., 513 So.2d 1188, 1191 (La.1987).

The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which the individual has established no meaningful "contacts, ties, or relations." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985), citing International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Requiring that individuals have "fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign," Shaffer v. Heitner, 433 U.S. 186, 218, 97 S.Ct. 2569, 2587, 53 L.Ed.2d 683 (1977) (Stevens, J., concurring), the Due Process Clause "gives a degree of predictability to the legal system that allows 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." Burger King, 471 U.S. at 474, 105 S.Ct. at 2183, citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

Due process will not be offended if the nonresident defendant has "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " International Shoe, 326 U.S. at 316, 66 S.Ct. at 158, quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940). When an action "arises out of" a defendant's contacts with the forum, a "relationship among the defendant, the forum, and the litigation" is the essential foundation of in personam jurisdiction. Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977). This type of jurisdiction, in which the suit arises out of or is related to the defendant's contacts with the forum, is commonly referred to as "specific jurisdiction." Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 1872 n. 8, 80 L.Ed.2d 404 (1984). Additionally, there may be instances "in which the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against [a foreign defendant] on causes of action arising from dealings entirely distinct from those activities." International Shoe, 326 U.S. at 318, 66 S.Ct. at 159. When this situation prevails, enabling the state to exercise personal jurisdiction over a defendant in a suit not arising out of or not related to the defendant's contacts with the forum, the forum is said to have "general jurisdiction." Helicopteros, 466 U.S. at 414 n. 9, 104 S.Ct. at 1872 n. 9. Defendants can be subject to general in personam jurisdiction if they have "continuous and systematic" contacts with the forum state. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 445, 72 S.Ct. 413, 418, 96 L.Ed. 485 (1952)

In the present case, Dickson avers that Panalpina Gabon is subject to in personam jurisdiction in Louisiana under a specific jurisdiction theory because of the contacts created when Air Sea assisted Dickson in contracting for vessel repairs with Panalpina Gabon in Gabon. In the alternative, Dickson claims Panalpina Gabon has continuous and systematic contacts with Louisiana to warrant general jurisdiction. We will consider Dickson's arguments in turn.

A.

As we stated above, when the litigation "arises out of" a defendant's contacts with the forum, a "relationship among the defendant, the forum, and the litigation" is the essential foundation of specific jurisdiction. Shaffer, 433 U.S. at 204, 97 S.Ct. at 2579. There must be "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958). The "purposeful availment" element "ensures that a defendant will not be haled into a jurisdiction solely as a result of 'random,' 'fortuitous,' or 'attenuated' contacts,...