Kim v. FRANK MOHN A/S

• Decision Date: 14 December 1995
• Docket Number: Civ. A. No. G-95-460.
• Parties: Sang Young KIM v. FRANK MOHN A/S.
• Court: U.S. District Court — Southern District of Texas

909 F. Supp. 474

Sang Young KIM v. FRANK MOHN A/S.

Civ. A. No. G-95-460.

United States District Court, S.D. Texas, Galveston Division.

December 14, 1995.

COPYRIGHT MATERIAL OMITTED

Thomas M. Stanley, Stanley & Associates, Houston, TX, for plaintiff.

Gavin Hugh McInnis, Jacobson Guglielmi & McInnis, Houston, TX, for defendant.

ORDER

KENT, District Judge.

Presently before the Court is the Defendant's Motion to Dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, insufficiency of service of process, and failure to state a claim upon which relief can be granted. As will be set forth in detail below, the Defendant's claims that the action should be dismissed for lack of subject matter jurisdiction and failure to state a claim are hereby DENIED, consideration of the Defendant's personal jurisdiction motion is hereby STAYED, and the the Plaintiff is hereby granted additional time to effect proper service of process upon the Defendant.

The Plaintiff is a Korean national who was employed as a seaman on the M/T World Texas, a Liberian-flagged vessel. While the Plaintiff was attempting to open the forepeak ballast pump control valve, the valve failed and struck the Plaintiff in his face and head. At the time of the accident, the vessel was in the Houston ship channel.

The Plaintiff brought this products liability action against the Defendant, who initially designed and later modified the pump which caused the Plaintiff's injuries. The Defendant is a corporation organized under the laws of Norway, with its principal place of business in Bergen, Norway. The Defendant's only United States subsidiary is Frank Mohn Houston Inc., a Texas corporation with its principal place of business in Texas.

I. SUBJECT MATTER JURISDICTION

In its Motion to Dismiss, the Defendant contends this Court lacks subject matter jurisdiction over the Plaintiff's claims because the Plaintiff and the Defendant are citizens of foreign countries, and the vessel is foreign-owned and foreign-flagged. The Court disagrees. The cases upon which the Defendant bases its argument do not involve the question of subject matter jurisdiction, but, rather, questions of the applicability of American versus foreign law, and applications of the doctrine of forum non conveniens. See, e.g., Fisher v. Agios Nicolaos V; 628 F.2d 308 (5th Cir.1980), cert. denied, 454 U.S. 816, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981). While the citizenship of the parties is relevant to choice of law and forum non conveniens considerations, citizenship is not relevant when the Court is asked to exercise its admiralty jurisdiction. See Sosa v. M/V Lago Izabal, 736 F.2d 1028, 1031 (5th Cir. 1984) (distinguishing subject matter jurisdiction and choice of law); see also Neely v. Club Med Management Servs., Inc., 63 F.3d 166 (3d Cir.1995) (distinguishing subject matter jurisdiction inquiry from choice of law and forum non conveniens inquiries).

The claim asserted by the Plaintiff against the Defendant is a basic tort claim that falls within the scope of this Court's admiralty jurisdiction. "A party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity." Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., ___ U.S. ___, ___, 115 S.Ct. 1043, 1048, 130 L.Ed.2d 1024 (1995). Thus, the injury or incident must have occurred on navigable waters, and the general character of the activity giving rise to the incident must bear a substantial relationship to traditional maritime activity. Id. at ___, 115 S.Ct. at 1051; see also Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990); Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972).

Clearly, an injury suffered by a seaman while performing traditional maritime duties aboard a vessel in navigable waters satisfies both requirements for the exercise of admiralty tort jurisdiction. See Neely, 63 F.3d at 178-80 (admiralty tort jurisdiction exists over claim of seaman injured on vessel in navigable waters); Schexnider v. McDermott Int'l, Inc., 817 F.2d 1159 (5th Cir.1987) (reversing district court's dismissal of case brought by foreign seaman against foreign vessel owner, even though foreign law governed the dispute); Sosa, 736 F.2d at 1031 (jurisdiction exists over foreign seaman's tort claim against foreign owner of foreign-flagged vessel); Sperry Rand Corp. v. Radio Corp. of America, 618 F.2d 319, 321-22 (5th Cir.1980) (products liability claim arising from damage to vessel in navigable waters caused by defects in gyro-pilot steering system is within the scope of admiralty tort jurisdiction). Accordingly, because the injury claimed by the Plaintiff occurred in navigable waters, and the activity giving rise to the injury is substantially related to traditional maritime activity, the Defendant's Motion to Dismiss for lack of subject matter jurisdiction is hereby DENIED.¹

II. PERSONAL JURISDICTION

The Defendant also contends this action should be dismissed for lack of personal jurisdiction, because the Defendant does not have sufficient contacts with the state of Texas. The Plaintiff contends the Defendant does business in Texas (largely through its subsidiary Frank Mohn Houston, Inc.) and therefore has sufficient contacts with this state to support the exercise of personal jurisdiction. Alternatively, the Plaintiff requests a stay of the consideration of this issue to allow time for discovery of information relevant to the jurisdictional issue.

In federal court, personal jurisdiction over a non-resident defendant is proper if: (1) the defendant is amenable to service of process under the forum state's long-arm statute; and (2) the exercise of personal jurisdiction over the defendant is consistent with due process. Jones v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061 (5th Cir.1992). Whether the exercise of personal jurisdiction over the Defendant is consistent with the Due Process Clause of the United States Constitution involves a two-pronged inquiry. First, the Court must conclude that the defendant has "minimum contacts" with Texas. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Second, the Court must also conclude that requiring the defendant to litigate in Texas would not offend "traditional notions of fair play and substantial justice." Id.; see also Wilson v. Belin, 20 F.3d 644, 647 (5th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 322, 130 L.Ed.2d 282 (1994); Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 418 (5th Cir.1993).

In this case, the information presently before the Court is insufficient to allow the Court to reach a reasoned determination as to whether personal jurisdiction may be exercised over the Defendant. While the parties agree that the Defendant conducts business in Texas through its Houston subsidiary, see Defendant's Motion to Dismiss at p. 3, there is no evidence before the Court of the nature of the transactions conducted through the subsidiary or the nature of any direct contacts of the Defendant. Moreover, the Court lacks sufficient information as to the history of the defective forepeak ballast pump and the Defendant's connection with the pump. The Court therefore concludes that further development of the jurisdictional facts is warranted.² See Wyatt v. Kaplan, 686 F.2d 276, 283 (5th Cir.1982) (whether to permit discovery on a motion to dismiss for lack of personal jurisdiction is a matter entrusted to the discretion of the trial court).

Accordingly, the Court hereby STAYS the consideration of the Defendant's Motion to Dismiss for Lack of Personal Jurisdiction for a period of sixty (60) days from the date of this Order, to allow the parties additional time to engage in discovery and produce information relevant to the jurisdictional issue presently before the Court. Within sixty days from the date hereof, the parties shall file supplemental briefs in support of their positions on the personal jurisdiction issue. No responses to the supplemental briefs shall be permitted; thus, the parties should endeavor to include all relevant information in their supplemental briefs. Failure of either party to file a supplemental brief within sixty days of the date hereof will constitute a representation to this Court that the documents currently on file are sufficient, and the Court will then consider the merits of the Motion to Dismiss based on the motions and responses then on file.

III. SUFFICIENCY OF SERVICE OF PROCESS

Finally, the Defendant contends this action should be dismissed on the grounds of insufficiency of service of process. The Plaintiff served the Defendant through the Defendant's Houston subsidiary, and recently mailed an additional copy directly to the Defendant in Norway. The Defendant argues service was ineffective because it was not made in accordance with the procedures set forth in the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965 (Hague Convention) 1969, 20 U.S.T. 361, T.I.A.S. No. 6638. The Court agrees.

Article 1 of the Hague Convention provides that the Convention applies in all cases "where there is occasion to transmit a judicial or extrajudicial document for service abroad." If the Hague Convention is applicable, its provisions preempt inconsistent methods of service prescribed by state law. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699, 108 S.Ct. 2104, 2107-08, 100 L.Ed.2d 722 (1988). However, if a foreign defendant can be served under state law without transmitting documents abroad, the Hague Convention is inapplicable. Id. at 707, 108 S.Ct. at 2112. In Schlunk, service on a foreign corporation's domestic subsidiary was sufficient under Illinois law to confer jurisdiction over the foreign defendant. Because Illinois law did...