Douglass v. Kabushiki Kaisha, 043021 FED5, 20-30382

Docket Nº20-30382, 20-30379
Opinion JudgePER CURIAM.
Party NameStephen Douglass, individually and as personal representative of the Estate of Shingo Alexander Douglass; Dora Hernandez, individually and as personal representative of the Estate of Noe Hernandez; Lan Huynh, individually and as personal representative of the Estate of Ngoc Truong Huynh; Darrold Martin, individually and as personal...
Judge PanelBefore King, Elrod, and Willett, Circuit Judges. Jennifer Walker Elrod, Circuit Judge, joined by Don R. Willett, Circuit Judge, specially concurring:
Case DateApril 30, 2021
CourtUnited States Courts of Appeals, United States Court of Appeals (5th Circuit)

Stephen Douglass, individually and as personal representative of the Estate of Shingo Alexander Douglass; Dora Hernandez, individually and as personal representative of the Estate of Noe Hernandez; Lan Huynh, individually and as personal representative of the Estate of Ngoc Truong Huynh; Darrold Martin, individually and as personal representative of the Estate of Xavier Alec Martin; Erin Rehm, individually and as personal representative of the Estate of Gary Leo Rehm, Jr.; Lloyd Wayne Rigsby, Jr., individually and as personal representative of the Estate of Dakota Kyle Rigsby; Carmen Sibayan, individually and as personal representative of the Estate of Carlos Victor Ganzon Sibayan, Plaintiffs-Appellants,

v.

Nippon Yusen Kabushiki Kaisha, Defendant-Appellee,

Jhon Alcide; Richard Allen-Easmon; Dustin Angle; Jesus Arguello; Valerie Arguello, Et al., Plaintiffs-Appellants,

v.

Nippon Yusen Kabushiki Kaisha, Defendant-Appellee.

Nos. 20-30382, 20-30379

United States Court of Appeals, Fifth Circuit

April 30, 2021

Appeals from the United States District Court for the Eastern District of Louisiana USDC Nos. 2:19-CV-13688 & 2:19-CV-13691

Before King, Elrod, and Willett, Circuit Judges.

PER CURIAM.

Nippon Yusen Kabushiki Kaisha chartered a ship that collided with a U.S. Navy destroyer in Japanese territorial waters. The collision killed seven sailors, injured at least forty others, and prompted the two lawsuits consolidated before us on appeal. The district court dismissed the cases, concluding that personal jurisdiction, under Fed.R.Civ.P. 4(k)(2), over Nippon Yusen Kabushiki Kaisha could not be established. For the reasons that follow, we AFFIRM.

I.

Defendant-appellee Nippon Yusen Kabushiki Kaisha ("NYK Line") was involved in the operation and navigation of its chartered ship that collided with the U.S.S. Fitzgerald, a U.S. Navy destroyer, in the territorial waters of Japan. The collision killed seven sailors and injured at least forty others. After the incident, two sets of plaintiffs filed suit against NYK Line in the U.S. District Court for the Eastern District of Louisiana. The Douglass plaintiffs are personal representatives of the seven U.S. sailors killed. They filed wrongful death and survival claims under the Death on the High Seas Act, 46 U.S.C. §§ 30301-08. The many U.S. sailors who were injured in the collision, along with seventeen family members with consortium claims, sued separately as the Alcide plaintiffs. The plaintiffs-appellants in both cases asserted personal jurisdiction over NYK Line pursuant to Fed.R.Civ.P. 4(k)(2), alleging that, despite NYK Line's status as a foreign corporation, its substantial, systematic, and continuous contacts with the United States should make NYK Line amenable to suit in federal court.

NYK Line moved to dismiss for lack of personal jurisdiction under Fed.R.Civ.P. 12 (b)(2). The district court granted NYK Line's motions and entered identical judgments in both cases accordingly. The plaintiffs-appellants timely appealed, and those appeals were subsequently consolidated before us. We are asked to address whether the district court could constitutionally exercise personal jurisdiction over NYK Line. Because we are bound by the rule of orderliness, existing Fifth Circuit precedent leaves us with only one proper outcome, and we affirm.

II.

Our review of a district court's Rule 12(b)(2) dismissal for lack of personal jurisdiction is de novo, and we apply the same standards as the district court. Patterson v. Aker Sols., Inc., 826 F.3d 231, 233 (5th Cir. 2016) (citing Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002)).

III.

A. Personal Jurisdiction and Fifth Amendment Due Process

In deciding whether an exercise of personal jurisdiction over NYK Line is constitutional, we run up against two threshold questions. First, we have to establish which constitutional test governs our analysis. And, second, once we have discerned which test governs, we must then decide how that test is applied. We begin by establishing that the Fifth Amendment's due process inquiry controls our analysis here. No one disputes as much. But some background will be helpful to understanding the answer to the second question-the crux of this dispute. That is, how the Fifth Amendment due process test is applied in the personal jurisdiction context, and whether-and to what extent-Fourteenth Amendment due process caselaw in that same context constrains a Fifth Amendment due process analysis.

1. Discerning the Relevant Constitutional Test

As with any personal jurisdiction analysis in federal court, we begin with Rule 4(k) of the Federal Rules of Civil Procedure. Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com de Equip. Medico, 563 F.3d 1285, 1293 (Fed. Cir. 2009) ("Rule 4 is the starting point for any personal jurisdictional analysis in federal court."). This is so, because, usually, whether a "defendant is amenable to service" is a "prerequisite" to a court's exercise of personal jurisdiction. See Omni Cap. Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104-05 (1987) ("Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied."). Here, NYK Line is a foreign defendant and not subject to jurisdiction in any state's courts of general jurisdiction, and the claims asserted against it arise under federal law. As a consequence, everyone agrees that NYK Line may be properly served, and hence personal jurisdiction can be established, only pursuant to Rule 4(k)(2). See generally Fed. R. Civ. P. 4(k)(2).

Rule 4(k)(2) was drafted in response to the Supreme Court's decision in Omni Capital International v Rudolf Wolff & Co., 484 U.S. at 104. In Omni, the Supreme Court affirmed the Fifth Circuit's en banc ruling, concluding that a district court lacked personal jurisdiction over the defendants where the case arose under federal law, the federal law at issue was silent as to service of process, and the long-arm statute of the state in which the district court sat did not reach the defendants. Id. at 100-01, 108.

In doing so, the Court recognized that its holding would result in a peculiar hiatus in the rules. Id. at 111. Although, under the Federal Rules of Civil Procedure as they then existed, it was proper to look to the state long-arm statute to determine whether service of process was authorized, this left private litigants unable to bring an action under federal law against a foreign defendant outside of the reach of the state long-arm statute. Id. Nevertheless, the Court reasoned that it was not its place to fashion a "narrowly tailored service of process provision, authorizing service on an alien in a federal-question case when the alien is not amenable to service under the applicable state long-arm statute." Id. Rather, the Court called for amending the Federal Rules to include such a provision to fill in this gap. Id. at 103.

The Omni decision spawned Rule 4(k)(2). Rule 4(k)(2) provides that, if the case is one "aris[ing] under federal law," federal courts have personal jurisdiction to the constitutional limit provided that no state could exercise jurisdiction. See Fed. R. Civ. P. 4(k)(2). An exercise of personal jurisdiction is "consistent with the United States Constitution," id, if it comports with due process, see Omni, 484 U.S. at 104. There are two due process clauses in the United States Constitution. One is part of the Fourteenth Amendment, and it is aimed at regulating the conduct of the several states.

See U.S. Const. amend. XIV, § 1. Another is part of the Fifth Amendment, and it constrains federal authority. See U.S. Const. amend. V. As Rule 4(k)(2) is directed at federal courts and contemplates a defendant's contacts with the entire United States, as opposed to the state in which the district court sits, the constitutional limits contemplated by the rule flow from the Fifth Amendment's Due Process Clause. See Fed. R. Civ. P. 4(k)(2) advisory committee's note to 1993 amendment (explaining that the Fifth Amendment, the basis of jurisdiction under Rule 4(k)(2), "requires that any defendant have affiliating contacts with the United States sufficient to justify the exercise of personal jurisdiction over that party").

The plaintiffs-appellants asserted personal jurisdiction over NYK Line pursuant to Fed.R.Civ.P. 4(k)(2), and therefore, everyone agrees that any exercise of personal jurisdiction over NYK Line must comport with the Fifth Amendment's due process requirements.

2. Fifth Amendment Due Process and Existing Caselaw

This brings us to the core of this dispute. Having established that personal jurisdiction is only proper in this case if the Fifth Amendment due process test is satisfied, we must now decide how this test is applied. And, on this point, the parties disagree.

NYK Line argues that Fourteenth Amendment due process caselaw in this context constrains a Fifth Amendment due process analysis and that the jurisdictional test set forth in Daimler AG v. Bauman, 571 U.S. 117 (2014), is our guide. Plaintiffs-appellants, supported by distinguished amici, 1 argue to the contrary. Because we find plaintiffs-appellants' position persuasive, we explain their position in full here. Ultimately, however, as we explain below, we are bound by the rule of orderliness to resolve this case under Daimler.

The upshot of the plaintiffs-appellants' argument is this: The requirements of Fourteenth Amendment due process differ from those of the Fifth Amendment. Therefore, in deciding whether a court's exercise of personal jurisdiction over a defendant comports with the Fifth Amendment's Due Process Clause, we ought not to turn to recent Supreme Court cases interpreting the Fourteenth Amendment...

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