Ganpat v. E. Pac. Shipping, Pte. Ltd., CIVIL DOCKET NO. 18-13556

• Decision Date: 17 January 2020
• Docket Number: CIVIL DOCKET NO. 18-13556
• Citation: 434 F.Supp.3d 441
• Parties: Kholkar Vishveshwar GANPAT, Plaintiff v. EASTERN PACIFIC SHIPPING, PTE. LTD., Defendant
• Court: U.S. District Court — Eastern District of Louisiana

434 F.Supp.3d 441

Kholkar Vishveshwar GANPAT, Plaintiff

v.EASTERN PACIFIC SHIPPING, PTE. LTD., Defendant

CIVIL DOCKET NO. 18-13556

United States District Court, E.D. Louisiana.

Signed January 17, 2020

Richard Massie Martin, Jr., Lamothe Law Firm, LLC, New Orleans, LA, Alejandro J. Gonzalez, Pro Hac Vice, Quintairos, Prieto, Wood & Boyer, P.A., Miami, FL, for Plaintiff.

John Stephen Simms, Pro Hac Vice, Marios J. Monopolis, Pro Hac Vice, Simms Showers, LLP, Hunt Valley, MD, Cecil Gordon Starling, Jr., Law Offices of Gordon Starling, LLC, G. Beauregard Gelpi, Wagner, Bagot & Rayer LLP, New Orleans, LA, for Defendant.

SECTION: "E" (4)

ORDER AND REASONS

SUSIE MORGAN, UNITED STATES DISTRICT JUDGE

Before the Court is a Motion to Dismiss for Insufficient Service of Process filed by Defendant Eastern Pacific Shipping, PTE. LTD ("Eastern Pacific") pursuant to Federal Rule of Civil Procedure 12(b)(5).¹ Plaintiff Kholkar Vishveshwar Ganpat opposes the motion.² Eastern Pacific filed a supplemental memorandum in support of its motion to dismiss.³ Plaintiff filed a reply to Eastern Pacific’s supplemental memorandum in support of its motion to dismiss.⁴

BACKGROUND

Plaintiff alleges he contracted malaria

while working as a crew member aboard the M/V STARGATE.⁵ On December 12, 2018, Plaintiff filed the instant suit, bringing claims against Eastern Pacific under the Jones Act, general maritime law, and contract law.⁶ Eastern Pacific is a Singapore private limited company and its principal place of business is in Singapore.⁷ On December 17, 2019, Plaintiff filed into the record his purported proof of service on Eastern Pacific.⁸ The return on the summons reflects Plaintiff served Captain Owen Bona⁹ aboard the M/V BANDA SEA on December 15, 2018¹⁰ while the ship lay at anchor in the Mississippi River just below New Orleans, Louisiana.¹¹ On January 4, 2019, counsel for Eastern Pacific made an appearance, limited to contesting service of process and personal jurisdiction.¹²

On January 5, 2019, Eastern Pacific filed a motion to dismiss, moving to dismiss Plaintiff’s claims against it pursuant to Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process.¹³ Eastern Pacific alternatively moved to require proper service in Singapore through the Hague Service Convention.¹⁴ Eastern Pacific further sought dismissal under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction.¹⁵ Plaintiff opposed this motion, arguing service upon Eastern Pacific was proper because Plaintiff made personal service on Captain Bona, who Plaintiff argued is a "managing agent" of Eastern Pacific.¹⁶ In a conference with the Court on April 18, 2019, Eastern Pacific represented that it "withdrew its objection to personal jurisdiction and will not object to venue in this Court."¹⁷ In the minute entry for the conference, the Court granted Eastern Pacific leave to file an amended and restated motion to dismiss.¹⁸ Eastern Pacific did so, filing the instant Motion to Dismiss for Insufficient Service of Process on April 25, 2019.¹⁹ Eastern Pacific asks the Court "either to dismiss the complaint or require its proper service on Eastern Pacific in Singapore pursuant to a Letter Rogatory."²⁰ Accordingly, on April 30, 2019, the Court denied as moot Eastern Pacific’s original motion to dismiss.²¹

On April 30, 2019, Plaintiff filed a motion for leave to take discovery on the "managing agent" issue.²² On June 4, 2019, the Court granted this motion.²³ After completing discovery on the "managing agent" issue, Plaintiff filed his opposition to Eastern Pacific’s instant motion to dismiss.²⁴ Plaintiff argues depositions and written discovery demonstrate personal service on Captain Bona was proper service upon Eastern Pacific because (1) Captain Bona was Eastern Pacific’s actual or borrowed employee and/or (2) Captain Bona was a "managing agent" of Eastern Pacific vested with "general powers involving the exercise of independent judgment and discretion."²⁵ Eastern Pacific argues Captain Bona is neither Eastern Pacific’s actual or borrowed employee nor its managing agent, but rather is an employee of Ventnor Navigation, Inc. ("Ventnor"), a Liberian corporation.²⁶ Anil Arjun Singh, the Chief Operating Officer of Eastern Pacific,²⁷ attested "Eastern Pacific manages but does not own the M/V STARGATE."²⁸ With respect to Eastern Pacific’s "management" role, Singh testified in his deposition that Eastern Pacific "find[s] commercial employment for the vessel on behalf of the shipowner, and ... ensure[s] that the vessel has sufficient provisions, stores, spare parts, [and] competent crew ..."²⁹ With respect to Captain Bona, Singh attested:

Captain Owen Bona is not and has never been a corporate officer, or managing or general agent of Eastern Pacific. Captain Owen Bona is not and has never been an employee of Eastern Pacific. Eastern Pacific has never expressly or impliedly authorized Captain Owen Bona to accept service of any legal process for Eastern Pacific. In connection with the M/V BANDA SEA, Captain Bona is an employee of Vent[n]or Navigation, Inc., a Liberian corporation.³⁰

Eastern Pacific alternatively asks the Court to certify the question to the Fifth Circuit Court of Appeal, should the Court deny Eastern Pacific’s motion to dismiss.³¹

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of a claim if service of process is not completed in the proper manner. Service is not completed in the proper manner if not made in compliance with the requirements of Rule 4.³² "In the absence of valid service of process, proceedings against a party are void."³³

Because Eastern Pacific objects to the legal sufficiency of the service of process, the plaintiff has the burden to demonstrate by a preponderance of the evidence the validity of service.³⁴ "The district court enjoys a broad discretion in determining whether to dismiss an action for ineffective service of process."³⁵

LAW AND ANALYSIS

Initially, Eastern Pacific challenged the Court’s personal jurisdiction over Eastern Pacific, in addition to challenging the sufficiency of the service of process.³⁶ Eastern Pacific subsequently filed an amended motion to dismiss in which it challenged the legal sufficiency of the service of process but did not challenge the Court’s personal jurisdiction.³⁷ Under Federal Rule of Civil Procedure 12(h), a party waives any objection to personal jurisdiction by failing to assert it in the party’s answer or responsive pleading.³⁸ In this case, Eastern Pacific’s amended motion to dismiss does not include an objection to personal jurisdiction, and, as a result, Eastern Pacific has waived this objection pursuant to Rule 12(h). Nevertheless, a party’s waiver of an objection to personal jurisdiction does not constitute a finding that facts exist which justify the exercise of personal jurisdiction by the Court. Instead, such a waiver creates a presumption that personal jurisdiction exists.³⁹

Even though Eastern Pacific has legally submitted to the personal jurisdiction of the Court by waiving any objection it might have, the Court still must determine whether the service of process on Eastern Pacific is legally sufficient. "[P]ersonal jurisdiction and service of process a[re] conceptually distinct issues."⁴⁰ As the Fifth Circuit has explained:

[An] analysis of personal jurisdiction is based on a combination of two elements, amenability to jurisdiction and service of process. By amenability we refer to the substantive reach of a forum’s jurisdiction. Service of process is the physical means by which jurisdiction is asserted. These elements are related but distinct ... If the law of the forum does not authorize the means by which service on a party has been accomplished, the court lacks personal jurisdiction over the party even though the party is amenable to the court's jurisdiction.⁴¹

Federal Rule of Civil Procedure 4(h) provides the method of service of process on a corporation, partnership, or association. The rule provides different means of service when service is effectuated within the United States as opposed to outside of the United States.⁴² When service is effected within the United States, it may take place in two ways:

(A) in the manner prescribed by [ Rule 4(h)(1)(A) and] Rule 4(e)(1) for serving an individual by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made"⁴³ ; or

(B) in the manner prescribed by Rule 4(h)(1)(B) 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 and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant.⁴⁴

Plaintiff argues service on Captain Bona aboard the M/V BANDA SEA while the vessel lay at anchor in the Mississippi River was proper either under Rule 4(h)(1)(A) and Rule 4(e)(1) because Captain Bona is an actual or borrowed employee of Eastern Pacific, or, alternatively, under Rule 4(h)(1)(B) because Captain Bona is a managing agent of Eastern Pacific. Eastern Pacific argues it was not properly served under these rules.

I. Rule 4(h)(1)(A) and Rule 4(e)(1)

Plaintiff argues service of process was proper under Rule 4(h)(1)(A) and Rule 4(e)(1), which incorporate Louisiana state law. Rule 4(h)(1)(A) allows service to be made as permitted by Rule 4(e)(1) when a domestic or foreign corporation must be served in a judicial district of the United States. Rule 4(e)(1) in turn allows service to be made as permitted by Louisiana state law. La. Code Civ. P. art. 1261(B) provides, in pertinent part:

B. If the corporation has failed to designate an agent for service of process, if there is no registered agent by reason of death, resignation, or removal, or if the person attempting to make service certifies that he is

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