Fireman's Fund Ins. Co. v. Thyssen Mining Constr. of Canada, Ltd.

• Decision Date: 19 December 2012
• Docket Number: No. 12–2021.,12–2021.
• Citation: 703 F.3d 488
• Parties: FIREMAN'S FUND INSURANCE COMPANY; Zurich Insurance Company, Ltd., as Subrogees to Boart Longyear, Inc., Plaintiffs–Appellants, v. THYSSEN MINING CONSTRUCTION OF CANADA, LTD.; Mudjatik Thyssen Mining Joint Venture, Defendants–Appellees, and Cominco Engineering Services, Ltd., Does 1–10 Inclusive, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

703 F.3d 488

FIREMAN'S FUND INSURANCE COMPANY; Zurich Insurance Company, Ltd., as Subrogees to Boart Longyear, Inc., Plaintiffs–Appellants,

v. THYSSEN MINING CONSTRUCTION OF CANADA, LTD.; Mudjatik Thyssen Mining Joint Venture, Defendants–Appellees,andCominco Engineering Services, Ltd., Does 1–10 Inclusive, Defendant.

No. 12–2021.

United States Court of Appeals, Tenth Circuit.

Dec. 19, 2012.

Thomas M. Dunford, Cozen O'Connor, Denver, CO, appearing for Appellants.

Jennifer L. Collins, (Ada B. Priest, with her on the brief), Madison & Mroz, P.A., Albuquerque, NM, appearing for Appellees.

Before MURPHY, EBEL, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

Fireman's Fund Insurance Company and Zurich Insurance Company Ltd. (collectively “Plaintiffs”), as subrogees of Boart Longyear, Inc., sued Thyssen Mining Construction of Canada Ltd. (“Thyssen”) and Mudjatik Thyssen Mining Joint Venture (“MTM”) (collectively “Defendants”) in New Mexico for negligence relating to the collapse of a mine that MTM was excavating in Canada. The district court dismissed MTM for lack of personal jurisdiction and dismissed the entire case under the forum non conveniens doctrine. The Plaintiffs filed a timely appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the dismissal of MTM for lack of personal jurisdiction and reverse the dismissal of Plaintiffs' complaint under forum non conveniens.

I. BACKGROUND

A. Factual Background

This case arises from the partial collapse of the Cigar Lake Uranium Mine in Saskatchewan, Canada, during an MTM excavation project. MTM is a joint venture formed by two independent companies—Thyssen, the sponsor and managing partner, and Mudjatik Enterprises, Inc., a Saskatchewan-based business corporation—to undertake mining and contracting work in Northern Saskatchewan and to excavate the Cigar Lake Mine.

In November 2004, Boart Longyear, Inc., an excavation company headquartered in Salt Lake City, Utah, contracted with Cameco Corporation, a Saskatchewan uranium producer with mines in Canada and the United States, to provide skilled labor and drilling equipment for uranium ore extraction at the Cigar Lake Mine. Cameco then contracted with MTM to excavate underground tunnels at the Cigar Lake Mine by drilling and blasting. On October 22, 2006, while MTM was excavating an underground tunnel at this mine, a portion of the tunnel collapsed and flooded, causing $3,766,000 of damage to Boart Longyear's drilling equipment.

Plaintiffs Fireman's Fund Insurance Company and Zurich Insurance Company Ltd. insured Boart Longyear before the Cigar Lake Mine collapse. Boart Longyear submitted insurance claims to Plaintiffs after the mine collapsed and received payment equal to the $3,766,000 in damages caused by the collapsed tunnel and partial flooding. Plaintiffs, as subrogees of Boart Longyear, now seek damages for Defendants' allegedly negligent drilling and blasting excavation procedures at the Cigar Lake Mine.

B. Procedural Background

Plaintiffs sued the Defendants for negligence in Saskatchewan, Canada, on July 20, 2009. The Defendants have asserted a statute of limitations defense in that lawsuit, which, if successful, would result in dismissal of Plaintiffs' case. The court has not decided this issue.

Plaintiffs also sued the same Defendants for the same claims in New Mexico state court on December 21, 2009. Defendants removed the suit to federal court based on diversity jurisdiction. No party is a New Mexico resident. Thyssen conducts business there, but MTM itself has no contacts with New Mexico. Defendants filed a motion to dismiss based on lack of personal jurisdiction and improper venue.

The district court held that Thyssen had sufficient contacts with New Mexico to confer personal jurisdiction but that Plaintiffs had not alleged sufficient facts to subject MTM to personal jurisdiction. The court explained that Plaintiffs had not made a prima facie showing of personal jurisdiction over MTM or requested an evidentiary hearing to determine whether MTM has sufficient minimum contacts with New Mexico.¹ Thus, the court held that it lacked personal jurisdiction over MTM.

The district court also exercised its discretion to dismiss the entire case under the forum non conveniens doctrine. It found that New Mexico is an inconvenient forum and that Canada provided a presently available adequate alternative forum despite the pending statute of limitations issue in the Canadian case.

Plaintiffs filed a timely appeal. They contest (1) the dismissal of MTM for lack of personal jurisdiction and (2) the grant of Defendants' motion to dismiss under the forum non conveniens doctrine. Thyssen did not cross-appeal on the personal jurisdiction issue.

II. DISCUSSION

A. Personal Jurisdiction

When a district court has dismissed a defendant for lack of personal jurisdiction based on the plaintiff's failure to allege sufficient contacts of the defendant with the forum, “[w]e review [the] district court's ruling on [the] jurisdictional question de novo. Thus, our task is to determine whether the plaintiffs' allegations ... make a prima facie showing of the minimum contacts necessary to establish jurisdiction over each defendant.” Rambo v. Am. S. Ins. Co., 839 F.2d 1415, 1417 (10th Cir.1988) (citations omitted).

Personal jurisdiction is established by the laws of the forum state and must comport with constitutional due process. Intercon, Inc. v. Bell Atl. Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir.2000). New Mexico's long-arm statute, N.M. Stat. Ann. § 38–1–16 (1971), “is coextensive with constitutional limitations imposed by the Due Process Clause.” Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir.2006); see also Tercero v. Roman Catholic Diocese of Norwich, 132 N.M. 312, 48 P.3d 50, 54 (2002). Personal jurisdiction over a nonresident defendant satisfies due process if there are sufficient “minimum contacts between the defendant and the forum State.” World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (quotations omitted); Intercon, 205 F.3d at 1247. The minimum contacts may support specific jurisdiction or general jurisdiction. Id.

For specific jurisdiction, the defendant must have sufficient minimum contacts with the forum state, and jurisdiction over the defendant cannot offend “traditional notions of fair play and substantial justice.” Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., Solano Cnty., 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). The minimum contacts must show that “the defendant ‘purposefully avail[ed] itself of the privilege of conducting activities within the forum State.’ ” Id. at 109, 107 S.Ct. 1026 (quotations omitted). The contacts with the forum must make being sued there foreseeable so that the defendant could “reasonably anticipate” the suit. World–Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. 559. The litigation must “result[ ] from alleged injuries that arise out of or relate to those activities.” Intercon, 205 F.3d at 1247 (quotations omitted).

General jurisdiction requires that a defendant have contacts with the forum “so continuous and systematic as to render [it] essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, ––– U.S. ––––, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011) (quotations omitted); see also Trujillo, 465 F.3d at 1218 n. 7 (general jurisdiction requires “ ‘continuous and systematic’ general business contacts with the forum state” (quoting Helicopteros Nacionales v. Hall, 466 U.S. 408, 415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984))). Unlike for specific jurisdiction, the litigation need not arise from the defendant's activities in the forum.

The district court found that New Mexico courts have general jurisdiction over Thyssen but neither general nor specific jurisdiction over MTM. The court explained that although New Mexico courts have jurisdiction over businesses that are registered and doing business in the state,² jurisdiction over Thyssen does not extend to MTM.

Plaintiffs argue on appeal that personal jurisdiction over MTM can be based on an “agency theory.” Some courts have held that the actions of an agent, such as a partner, can confer personal jurisdiction over a partnership or joint venture. See, e.g., Donatelli v. Nat'l Hockey League, 893 F.2d 459, 466 (1st Cir.1990) (stating that under the agency theory, a “partner is deemed by law and contract to be the partnership's general agent”). The Tenth Circuit has recognized that “a principal may be subject to the jurisdiction of the court because of the activities of its agent within the forum state,” but this agency theory applies only when the agent's “acts are committed in the course of or within the scope of the agent's employment.” Taylor v. Phelan, 912 F.2d 429, 433 (10th Cir.1990) (emphasis added).

Plaintiffs argue that the district court has jurisdiction over MTM because it has jurisdiction over Thyssen, the managing partner of the MTM joint venture. ³ They contend that Thyssen's actions need only be incidental to the joint venture to confer personal jurisdiction over MTM.

Plaintiffs' arguments stretch the agency theory too far. Thyssen's actions in New Mexico—registering to do business in the state, conducting transactions there, and designating an agent for service of process—were completely unrelated to the MTM joint venture, which was created for the sole purpose of completing the Canadian drilling project. See Quarles v. Fuqua Industries, Inc., 504 F.2d 1358, 1364–65 (10th Cir.1974). Thus, the agency theory is inapplicable.

Plaintiffs' arguments for personal jurisdiction over MTM therefore fail. They did not allege any facts to establish that MTM has the requisite minimum contacts with New Mexico to confer personal jurisdiction, nor did they allege facts showing that the New Mexico district court had personal jurisdiction over MTM under the agency theory. Thyssen's acts were not ...