Omeluk v. Langsten Slip & Batbyggeri A/S

Decision Date14 April 1995
Docket NumberNo. 93-35389,93-35389
Citation52 F.3d 267
PartiesJanusz OMELUK, Plaintiff-Appellant, v. LANGSTEN SLIP & BATBYGGERI A/S, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Lucy Lee Helm, Riddell, Williams, Bullitt & Walkinshaw, Seattle, WA, for defendant-appellee.

William Bishin (argued), Seattle, WA; and James M. Beard (on the briefs), Seattle, WA, for plaintiff-appellant.

Appeal from the United States District Court for the Western District of Washington.

Before: ALARCON, BEEZER and KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge:

The sole issue before us is whether the defendant's contacts with the forum adequately supported the exercise of personal jurisdiction. We affirm the district court's dismissal, because they did not.

I. FACTS

The case was dismissed on what was called a motion for summary judgment based on lack of jurisdiction, but more properly should be considered a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2). The district court did not hear testimony or make findings of fact. Instead, each side submitted declarations, deposition testimony and other evidence, and the district court dismissed based on the evidence submitted. The affidavits are not in conflict. Because the quantum of proof necessary for the plaintiff, where the district court receives only written submissions such as these, is whether the plaintiff presented a prima facie showing of jurisdictional facts, we set out the facts on the assumption that the matters so set forth could be proved. Data Disc, Inc. v. Systems Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir.1977); Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir.1990).

Omeluk, a seaman on the ship F/V ACONA, was gravely injured when a grate on the deck for storing fishing nets gave way. It dropped like a trap door, so that he fell onto a ramp a deck below, and then overboard. The accident occurred in the Bering Sea, in international waters off Alaska. Omeluk sued his employer, Panpac Corporation, and also the Norwegian company which rebuilt the fishing vessel, Langsten Slip & Batbyggeri A/S. The suit was brought in the District Court for the Western District of Washington. Only the dismissal of his claims against Langsten is before us.

Langsten is a Norwegian corporation. It runs a shipyard in Tomrefjord, Norway, where it refurbished the vessel, and installed the welds on the grate which failed. Its business is repair and rebuilding of special purpose vessels, mostly on referral from brokers and others. Langsten does not advertise or solicit business in the United States, though it occasionally advertises in Fishing News in England. It does not maintain any offices, employees, property or bank accounts in the United States. Langsten is aware that some of the vessels it works on may be used in the United States, and has worked on three United States-bound vessels in the last fifteen years, including the one at issue. Almost all of the work on the vessels is done in Norway, and they are redelivered to the owners in Norway, not the United States.

Langsten personnel make no regular trips to the United States, though they have come four times for vessel christenings and cocktail receptions. Occasionally Langsten employees will travel to the United States on a specific repair request from an owner. One such trip was made when Langsten employees travelled to Dutch Harbor, Alaska to install a roe machine on the Acona. One year Langsten personnel attended "fish expo" in Washington "for informational purposes," but no evidence of any sales activity was offered.

When Langsten agreed to refurbish the Acona, the owner was AJVS, an Alaska firm. AJVS and a broker in Norway contacted Langsten, and delivered the vessel to Norway for the work. The contract was negotiated and signed in Norway. About a year later, AJVS sold its interest in the vessel and assigned the contract to Panpac, Omeluk's employer. Panpac is a New Zealand corporation with an office in Washington. Panpac negotiated certain changes in the contract, including a change to the part of the net storage deck which failed. All the negotiations took place in Norway and Denmark, and the Panpac contract modification was signed in Copenhagen. The contract provided for delivery of the vessel in Norway. The contract provided that any disputes would be arbitrated in Norway according to Norwegian law.

The vessel was being prepared to fish in waters off New Zealand and Alaska. At Panpac's direction, some electronic parts for the vessel were purchased from a Washington firm. Panpac officers thought that since the electronics on a ship are the parts that require service most often, it was important to have repair services in the Pacific for a boat that would fish off Alaska and New Zealand and be home ported in Seattle. At least 90% of the electronics installation was performed in Norway, but up to 10% was performed in Seattle. Langsten also bought the fishing nets in Washington, at Panpac's request. Some time during the rebuilding process, Langsten became aware that Panpac intended to use Seattle as the home port for the vessel.

II. ANALYSIS
A. Threshold Issues

We review the materials presented de novo to determine whether plaintiff established a prima facie case for in personam jurisdiction over Langsten. Farmers Ins. Exch., 907 F.2d at 912.

Jurisdiction must comport with the state long-arm statute, and with the constitutional requirement of due process. Chan v. Society Expeditions, Inc., 39 F.3d 1398, 1404 (9th Cir.1994). Because the Washington long arm statute reaches as far as the Due Process Clause, all we need analyze is whether the exercise of jurisdiction would comply with due process. Id. at 1405; Deutsch v. West Coast Mach. Co., 80 Wash.2d 707, 497 P.2d 1311, 1314 (1972).

The Due Process Clause protects a defendant's "liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful 'contacts, ties or relations.' " Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 2181-82, 85 L.Ed.2d 528 (1985). "By requiring that individuals have 'fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign,' 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.' " Id. at 472, 105 S.Ct. at 2182 (internal citations omitted). The fair warning requirement is satisfied if the defendant has " 'purposefully directed' his activities at residents of the forum, and the litigation results from alleged injuries that 'arise out of or relate to' those activities." Id. (internal citations omitted).

"[F]oreseeability of causing injury in another State ... is not a 'sufficient benchmark' for exercising personal jurisdiction." Id. at 474, 105 S.Ct. at 2183 (emphasis in original). "Instead, 'the foreseeability that is critical to due process analysis ... is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.' " Id. " '[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State.' " Id. at 474-75, 105 S.Ct. at 2183. "This 'purposeful availment' requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of 'random,' 'fortuitous,' or 'attenuated' contacts, or of the 'unilateral activity of another party or a third person.' " Id. at 475, 105 S.Ct. at 2183 (internal citations omitted).

B. General Jurisdiction

Langsten did not subject itself to the general jurisdiction of courts in the State of Washington. If its activities within Washington had been "substantial," or "continuous and systematic," then its relationship to the forum would have supported jurisdiction regardless of whether the cause of action was related to its activities in Washington. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 1873, 80 L.Ed.2d 404 (1984); Data Disc, Inc., 557 F.2d at 1287. Its lack of a regular place of business in Washington is significant, and is not overcome by a few visits. Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1331 (9th Cir.1984). Langsten had no regular contact of any kind with the State of Washington, and had quite limited contact even with regard to the Acona.

C. Specific Jurisdiction

Even without general jurisdiction over the defendant, the court in Washington would have jurisdiction specific to the case at bar, if the controversy were sufficiently related to or arose out of Langsten's contacts with the forum state. Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 414, 104 S.Ct. at 1872. In our circuit, we employ a three-part test to determine whether specific jurisdiction may be applied to a particular defendant:

(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws[;] (2) [t]he claim must be one which arises out of or results from the defendant's forum-related activities[; and] (3) [e]xercise of jurisdiction must be reasonable.

Data Disc, Inc., 557 F.2d at 1287; Roth v. Garcia Marquez, 942 F.2d 617, 620-21 (9th Cir.1991). These three criteria are our circuit's approach to analyzing the single question of whether the "constitutional touchstone" of "minimum contacts" necessary for due process are satisfied. Burger King Corp., 471 U.S. at 474, 105 S.Ct. at 2183. If any of the three requirements is not satisfied, jurisdiction...

To continue reading

Request your trial
282 cases
  • Brink v. First Credit Resources
    • United States
    • U.S. District Court — District of Arizona
    • July 12, 1999
    ...with some minimum assurance as to where that conduct will and will not render them liable to suit.'" Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir.1995) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (internal citation......
  • Patterson v. Home Depot, USA, Inc.
    • United States
    • U.S. District Court — District of Arizona
    • February 16, 2010
    ...Super. Ct. of Cal., 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (plurality opinion); see also Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 271 (9th Cir.1995). This is so, even if a defendant has no physical presence within the forum. Burger King, 471 U.S. at 472-73, 10......
  • Moki Mac River Expeditions v. Drugg
    • United States
    • Texas Supreme Court
    • March 2, 2007
    ...65 F.3d 1495, 1500 (9th Cir.1995); Terracom v. Valley Nat'l Bank, 49 F.3d 555, 561 (9th Cir.1995); but see Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 271 (9th Cir.1995) (noting that "[t]he authority of our decision in Shute is questionable"). Applying the but-for test, the Shute......
  • Travelars Cas. & Sur. Co. v. Telstar Const. Co.
    • United States
    • U.S. District Court — District of Arizona
    • March 5, 2003
    ...make only a prima facie showing of jurisdictional facts to defeat the defendant's motion to dismiss. See Omeluk v. Langsten Slip & Batbyggeri AJS, 52 F.3d 267, 268 (9th Cir.1995)(citing Data Disc, 557 F.2d at 1285 and Farmers, 907 F.2d at 912); Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir......
  • Request a trial to view additional results
1 books & journal articles
  • Exercising rights in the right forum - questions of jurisdiction.
    • United States
    • Marquette Intellectual Property Law Review Vol. 11 No. 1, January 2007
    • January 1, 2007
    ...as a three-part test. See, e.g., Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995); Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir. (132.) See EC Regulation, supra note 93, art. 5(3). (133.) CODE CIVIL [C. CIV.] art. 14 (Fr.). (134.) Gulf Oil Corp. v. Gilbert, 3......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT