Shute v. Carnival Cruise Lines, 87-4063

• Decision Date: 27 April 1989
• Docket Number: No. 87-4063,87-4063
• Citation: 863 F.2d 1437
• Parties: Eulala SHUTE, and Russel Shute, Plaintiffs-Appellants, v. CARNIVAL CRUISE LINES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1437

863 F.2d 1437

1989 A.M.C. 305

Eulala SHUTE, and Russel Shute, Plaintiffs-Appellants, v. CARNIVAL CRUISE LINES, Defendant-Appellee.

No. 87-4063.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 5, 1988.

Decided Dec. 12, 1988.

Withdrawn April 27, 1989.

See 897 F.2d 377 for Amended Opinion

Gregory J. Wall, Brousseau, Wall & Jankovich, Seattle, Wash., for plaintiffs-appellants.

Jonathan Rodriguez-Atkatz, Bogle & Gates, Seattle, Wash., for defendant-appellee.

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

Before FLETCHER, BOOCHEVER and TROTT, Circuit Judges.

FLETCHER, Circuit Judge:

Plaintiffs Eulala and Russell Shute appeal the district court's decision to grant the defendant's motion for summary judgment, dismissing their suit for damages. The district court granted the motion on the grounds that the defendant's forum-related activities were insufficient to support the exercise of personal jurisdiction in a manner consistent with due process. We reverse.

BACKGROUND

The defendant-appellee, Carnival Cruise Lines, is a Panamanian corporation with its principal place of business in Miami, Florida. It is undisputed that Carnival is not registered to do business in the State of Washington. It owns no property in Washington, maintains no office or bank account in Washington and pays no business taxes in Washington. It has never operated ships which have called at Washington ports. It has no exclusive agent in Washington. Carnival does, however, advertise its cruises in local Washington newspapers. It also provides brochures to travel agents in Washington, which in turn are distributed to potential customers. Carnival also periodically holds seminars for travel agents in the State of Washington to inform them about, and encourage them to sell, Carnival cruises. Carnival pays travel agencies a 10% commission on proceeds from tickets sold for Carnival cruises.

The plaintiff-appellants, who are Washington residents, purchased tickets through Smokey Point Travel in Arlington, Washington for a seven day cruise on a Carnival Cruise Lines ship, the TROPICALE. The appellants were to embark in Los Angeles The passage contract ticket contained a forum selection clause that provided as follows:

California, sailing from there to Puerto Vallarta, Mexico. The tickets were purchased through the travel agent, who forwarded payment to Carnival in Miami. The tickets were issued in Florida, then forwarded to the appellants in Washington.

It is agreed by and between the passenger and the Carrier that all disputes and matters whatsoever arising under, in connection with or incident to this Contract shall be litigated, if at all, in and before a Court located in the State of Florida, U.S.A., to the exclusion of the courts of any other state or country.

The appellants' cause of action arises from injuries suffered by Mrs. Shute when she slipped on a deck mat while on a guided tour of the ship's galley. This incident occurred in international waters off the coast of Mexico. The Shutes allege that the fall was due to the negligence of Carnival and its employees, and request damages arising out of personal injuries to Mrs. Shute.

Carnival moved for summary judgment on two grounds: first, that the district court lacked personal jurisdiction over Carnival; and second, that the passenger ticket contract required the Shutes to bring all claims against Carnival in the Florida courts. In the alternative, Carnival requested a transfer of the case to the U.S. District Court for the Southern District of Florida. The court addressed only the first issue, ruling that it lacked personal jurisdiction over Carnival. The Shutes timely appeal.

DISCUSSION

I. Burden of Proof/Standard of Review

The plaintiff has the burden of establishing that the court has personal jurisdiction. Cubbage v. Merchent, 744 F.2d 665, 667 (9th Cir.1984), cert. denied, 470 U.S. 1005, 105 S.Ct. 1359, 84 L.Ed.2d 380 (1985). Where the trial court's ruling is based solely upon a review of affidavits and discovery materials, dismissal is appropriate only if the plaintiff fails to make a prima facie showing of personal jurisdiction. Fields v. Sedgwick Associated Risks, Ltd., 796 F.2d 299, 301 (9th Cir.1986); Data Disc, Inc. v. Systems Tech. Assoc., 557 F.2d 1280, 1285-86 (9th Cir.1977). Cf. Haisten v. Grass Valley Med. Reimbursement Fund, 784 F.2d 1392, 1396, n. 1 (9th Cir.1986) (where defendant challenges judgment entered against it on the merits, the plaintiff bears the full burden of proof of personal jurisdiction by the preponderance of the evidence).

A district court's determination that personal jurisdiction can properly be exercised is a question of law reviewable de novo when the underlying facts are undisputed. Haisten, 784 F.2d at 1396. For the purposes of this appeal, we treat the plaintiffs' allegations as correct. Fields, 796 F.2d at 301.

II. Personal Jurisdiction

This action was brought in admiralty in the U.S. District Court for the Western District of Washington. In order to establish personal jurisdiction, the Shutes must demonstrate that the forum state's jurisdictional statute confers personal jurisdiction, and that the exercise of jurisdiction accords with federal constitutional principles of due process. Pacific Atlantic Trading Co. v. M/V Main Express, 758 F.2d 1325, 1327 (9th Cir.1985).

Washington's jurisdictional statute provides, in relevant part, as follows:

(1) Any person whether or not a citizen or resident of this state, who, in person or through an agent does any of the acts in this section enumerated, thereby submits said person, and if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of said acts: (a) the transaction of any business within the state....

Wash. Rev.Code 4.28.185. (West 1988). This statute has been construed by the Supreme Court of Washington to permit the assertion of jurisdiction to the extent permitted by due process, except where limited by the terms of the statute. Deutsch v. West Coast Machinery Co., 80 Wash.2d 707, 497 P.2d 1311 (1972). For our purposes, "the statutory and constitutional standards merge into a single due process test." Pedersen Fisheries, Inc. v. Patti Industries, 563 F.Supp. 72, 74 (W.D.Wash.1983). ¹

Considerations of due process require that non-resident defendants have certain minimum contacts with the forum state, so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. International Shoe v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). However, the nature and quality of the necessary contacts required vary, depending upon the type of jurisdiction asserted.

Courts may exercise either general or specific jurisdiction over non-resident defendants. General jurisdiction exists where the non-resident defendant has " 'substantial' or 'continuous and systematic' contacts with the forum state." Fields, 796 F.2d at 301 (quoting Haisten, 784 F.2d at 1396). A court exercising general jurisdiction over a defendant may hear cases unrelated to the defendant's forum-related activities. Id.

The level of contact with the forum state necessary to establish general jurisdiction is quite high. See, e.g., Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984) (no jurisdiction over foreign corporation that sent officers to forum for a negotiating session, accepted checks drawn from a forum bank, purchased equipment from the forum, and sent personnel to the forum to be trained); Cubbage, 744 F.2d at 667-68 (no general jurisdiction over non-resident doctors despite significant number of patients in forum, use of forum's state medical insurance system and telephone directory listing that reached forum); Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1330-31 (9th Cir.1984) (no general jurisdiction over defendants despite several visits and purchases in forum, solicitation of contract in forum which included choice of law provision favoring forum, and extensive communication with forum), cert. denied, 471 U.S. 1066, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985); Congoleum Corp. v. DLW Aktiengesellschaft, 729 F.2d 1240, 1242-43 (9th Cir.1984) (foreign corporation's sales and marketing efforts in forum state, including solicitation of orders, promotion of products to potential customers through the mail and through showroom displays, and attendance at trade shows and sales meetings, were insufficient contact to assert general jurisdiction).

Carnival's contacts with the State of Washington are insufficient to support an exercise of general jurisdiction. Carnival has no offices and no exclusive agents in Washington, it is not registered to do business there, and it pays no taxes there. These factors militate against the exercise of general jurisdiction. See Fields, 796 F.2d at 302. Its contacts are limited to advertising in the local media, the mailing of brochures and the payment of commissions to travel agents, the conducting of promotional seminars, and the sale of its vacation cruises to residents of Washington. Only 1.29% and 1.06% of Carnival's cruise business was derived from residents of Washington in 1985 and 1986, respectively. This court has held under somewhat similar facts that the exercise of general jurisdiction would violate due process. See Congoleum, 729 F.2d at 1243.

If the non-resident defendant's activities within the forum are not sufficiently pervasive to justify the exercise of general jurisdiction, a court may nevertheless assert jurisdiction for a cause of action arising out of the defendant's activities within the forum. The Ninth Circuit has devised a three-part test to determine whether the exercise of this "specific" jurisdiction comports with due process: (1) The defendant must have done some act by whic...