Tetrev v. Pride Intern., Inc., C.A. No.: 2:04-23161-23.

• Decision Date: 22 November 2006
• Docket Number: C.A. No.: 2:04-23161-23.
• Parties: Peter V. TETREV, Plaintiff, v. PRIDE INTERNATIONAL, INC., Petrodrill Four, Ltd. A/K/A Petrodrill Construction and Petroleum International PTE, LTD, Defendants.
• Court: U.S. District Court — District of South Carolina

Page 555

465 F.Supp.2d 555

Peter V. TETREV, Plaintiff, v. PRIDE INTERNATIONAL, INC., Petrodrill Four, Ltd. A/K/A Petrodrill Construction and Petroleum International PTE, LTD, Defendants.

C.A. No.: 2:04-23161-23.

United States District Court, D. South Carolina, Charleston Division.

November 22, 2006.

Coming Ball Gibbs, Jr., Gibbs and Holmes, David B. Marvel, Robertson and Hollingsworth, Jeffrey A. Barnwell, Leath Bouch and Crawford, Charleston, SC, for Plaintiff.

Carol B. Ervin, Nancy Bloodgood, Young Clement Rivers, Anne Louise Ross, Marvin Dewitt Infinger, Haynsworth Sinkler Boyd, Charleston, SC, Stephen B. Crain, Bracewell and Giuliani, Houston, TX, for Defendants.

ORDER

DUFFY, District Judge.

This matter is before the court on Defendant Petrodrill Four Limited's ("Petrodrill") Motion to Dismiss Plaintiff Peter V. Tetrev's ("Plaintiff or "Tetrev") cause of action against it for lack of personal jurisdiction. In response, Plaintiff argues that this court has specific jurisdiction over Petrodrill, or, in the alternative, that Petrodrill is subject to this court's jurisdiction pursuant to Rule 4(k)(2) of the Federal Rules of Civil Procedure.

BACKGROUND

Petrodrill is an international company organized under the laws of the British Virgin Islands with its registered office in Tortola, British Virgin Islands. Petrodrill is the legal owner of the drilling vessel PRIDE RIO DE JANEIRO. It is undisputed that Petrodrill has never done business in South Carolina, and that the vessel has never been located in South Carolina. The record before the court shows that Petrodrill has had the following contacts with the United States: In 1998, Petrodrill's predecessor in interest contracted to have the hull which was to become the PRIDE RIO DE JANEIRO constructed in Mississippi. In 1999, Petrodrill entered into an agreement with Petrodrill Engineering N.V. ("PENV"), a corporation incorporated in the Netherlands Antilles, whereby PENV would be the construction manager and would oversee the construction of the hull. In 2001, the Mississippi contractors declared bankruptcy, and Petrodrill ordered the removal of the incomplete hull from the Mississippi port. On April 25, 2002, Petrodrill and Cianbro Corporation of Maine entered into a construction contract to have the hull completed in Portland, Maine. [Def. Mot. to Dismiss, Ex. A, ¶¶ 8, 16-22.] The hull of the PRIDE RIO DE JANEIRO was towed directly from Mississippi to Maine without stopping in any other ports. In 2004, Cianbro completed the PRIDE RIO DE JANEIRO. Thereafter, the vessel was towed to Netherlands Antilles, and then went on to Brazil. [Id.] Since then, the PRIDE RIO DE JANEIRO has been used to perform drilling work for Petroleo Brasilieriro S.A. off the coast of Brazil.

Pride International, Inc. ("Pride") is a corporation organized in Delaware and with principle place of business in Texas. Pride was the operator and owner pro hoc vice of the PRIDE RIO DE JANEIRO. The exact nature of the relationship between Pride and Petrodrill remains unclear at this time; however, it is clear that they are distinct and separate entities. Plaintiff Peter Tetrev is a seaman with experience on oil rigs. Tetrev alleges that in July 2003 he entered into an employment contract with the defendant Pride to work as a second mate of the navigation crew of the PRIDE RIO DE JANEIRO. Tetrev spent several hitches aboard ship, usually for a month at a time. During 2003, Tetrev made several complaints to Pride regarding the safety and poor conditions of the ship. Further, Tetrev complained about Pride's failure to properly pay him for overtime.

In February of 2004, a new unilateral contract of employment was sent to Tetrev in Charleston, South Carolina. This new contract purported to be between Petroleum International Pte Ltd. ("PIPL") and Tetrev. PIPL, a corporation organized and existing under the laws of Singapore with principal place of business in Monoco, is a wholly owned subsidiary of Pride. Tetrev signed the employment contract and returned it.

On or about April 26, 2004, Pride/PIPL fired Tetrev, allegedly for failing to secure a visa. Tetrev asserts that this accusation was false and was only pretext. Tetrev claims that he was really fired for repeatedly requesting his earned wages and because he had expressed several safety concerns about the PRIDE RIO DE JNEIRO.

On November 4, 2004, Tetrev filed this action in the Court of Common Pleas for Charleston County against Pride alleging (1) breach of contract accompanied by a fraudulent act; (2) intentional misrepresentation; (3) wages pursuant to 46 U.S.C. § 10313, the Seaman's Wages Statute; (4) defamation; (5) outrage; and (6) civil conspiracy. The action was subsequently removed to this court on the basis of diversity jurisdiction.

Pride moved to be dismissed, claiming that it was not subject to personal jurisdiction in South Carolina. On March 29, 2005, this court denied Pride's Motion to Dismiss, concluding that Pride had sufficient contacts with the forum because it had sent mail and communications to Tetrev in South Carolina and had paid Tetrev through direct deposit to an account in South Carolina. Tetrev subsequently amended his complaint to include Defendants PIPL, with whom Tetrev had entered the 2004 employment contract, and Petrodrill, the registered owner of the PRIDE RIO DE JANEIRO. PIPL moved for dismissal of Tetrev's claims for lack of personal jurisdiction and for failing to state a claim upon which relief could be granted. On February 27, 2006, the court issued an Order finding that PIPL was subject to the personal jurisdiction of this court, due to PIPL's contacts with Tetrev within South Carolina. In this Order, the court further found that the 2004 employment contract between Tetrev and PIPL contained an enforceable forum selection clause which specified that Singapore is the exclusive venue for disputes regarding the contract. For this reason, the court dismissed those of Tetrev's claims which arose under the 2004 employment contract. The causes of action now remaining before the court are: (1) defamation, (2) outrage, (3) civil conspiracy, and (4) a claim for those wages not arising under the 2004 employment contract.

Petrodrill answered on May 11, 2006, and reserved the right to challenge personal jurisdiction. Petrodrill now moves for dismissal on the ground that the court, lacks personal jurisdiction over it for the remaining claims.

STANDARD OF REVIEW

Rule 12(b)(2) of the Federal Rules of Civil Procedure is applicable to motions to dismiss for lack of personal jurisdiction. When personal jurisdiction is challenged by the defendant, the plaintiff has the burden of showing that jurisdiction exists. See In re Celotex Corp., 124 F.3d 619, 628 (4th Cir.1997). When the court decides a pretrial personal jurisdiction dismissal motion without an evidentiary hearing, the plaintiff need only prove a prima facie case of personal jurisdiction. Combs v. Bakker, 886 F.2d 673, 675 (4th Cir.1989). "A prima facie case is established if the plaintiff presents enough evidence to withstand a motion for directed verdict." Meier ex rel. Meier v. Sun Intern. Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir.2002). In deciding the jurisdictional issue, the court may consider affidavits, interrogatories, depositions or any other recognized methods of discovery. Med-Therapy Rehabilitation Servs., Inc. v. Diversicare Corp. of Am., 768 F.Supp. 513, 516 (W.D.N.C.1991) (citing Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir.1985)); see also Magic Toyota, Inc. v. Southeast Toyota Distribs., Inc., 784 F.Supp. 306, 310 (D.S.C.1992). In determining the existence of personal jurisdiction, the court is mindful that it must draw all reasonable inferences from both parties' pleadings, even if they conflict, in the plaintiffs favor. See, e.g., Meier ex. Rel. Meier, 288 F.3d at 1269 ("[w]here the plaintiffs complaint and supporting evidence conflict with the defendant's affidavits, the court must construe all reasonable inferences in favor of the plaintiff); Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir.1994) (on a motion to dismiss, the court is charged with "taking facts affirmatively alleged by plaintiff as true and construing disputed facts in the light most hospitable to plaintiff."); Precept Med. Products, Inc., v. Klus, 282 F.Supp.2d 381, 385 (W.D.N.C.2003) ("for the purposes of a Rule 12(b)(2) motion, the Court will accept the Plaintiffs version of disputed facts").

DISCUSSION

To validly assert personal jurisdiction over a non-resident defendant, two conditions must be satisfied. See Christian Sci. Bd. of Dirs. of the First Church of Christ v. Nolan, 259 F.3d 209, 215 (4th Cir.2001). First, the exercise of jurisdiction must be authorized by the long-arm statute of the forum state, and second, the exercise of personal jurisdiction must not "overstep the bounds" of Fourteenth Amendment due process. See Anita's New Mexico Style Mexican Food, Inc. v Anita's Mexican Foods Corp., 201 F.3d 314, 317 (4th Cir.2000). South Carolina's long-arm statute has been construed to extend to the outer limits allowed by the Due Process Clause. Foster v. Arletty 3 Sari, 278 F.3d 409, 414 (4th Cir.2002). "Consequently, the statutory inquiry necessarily merges with the constitutional inquiry, and the two inquiries essentially become one." ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 623 (4th Cir. 1997) (internal quotation marks omitted).

Under the constitutional inquiry, a court has personal jurisdiction over those persons with sufficient "minimum contacts with [the forum] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.' " Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (citations omitted). The minimum contacts prong is satisfied either through specific or general jurisdiction. Fortis Corporate Ins. v. Viken Ship...