Vinten v. Jeantot Marine Alliances, S.A., No. C/A 2:99-3660-18.

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Writing for the Court: Norton
• Citation: 191 F.Supp.2d 642
• Parties: Gary VINTEN, Plaintiff, v. JEANTOT MARINE ALLIANCES, S.A., Jeantot Marine Alliaura, S.A., and Groupe Alliaura Marine, Defendants.
• Decision Date: 13 March 2002
• Docket Number: No. C/A 2:99-3660-18.

191 F.Supp.2d 642 Gary VINTEN, Plaintiff,
v.
JEANTOT MARINE ALLIANCES, S.A., Jeantot Marine Alliaura, S.A., and Groupe Alliaura Marine, Defendants. No. C/A 2:99-3660-18. United States District Court, D. South Carolina, Charleston Division. March 13, 2002.

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Marvin D. Infinger, George E. Campsen, Jr., Charleston, SC, for plaintiff.

Wade H. Logan, III, Charleston, SC, for defendants.

ORDER

NORTON, District Judge.

This matter is before the court on Groupe Kirie, S.A.'s Motion to Set Aside the Default Judgment.¹ The court heard oral argument on January 17, 2002.

I. Background

A. Defendants

Alliaura Marine was a French business entity with its principal place of business in France. (Bocquillon Second Supp.Aff. ¶ 2). In 1996, Alliaura Marine purchased the assets of a bankrupt company known as Jeantot Marine through the French Commercial Court. (Bocquillon Aff. ¶ 5;² Def's Suppl.Mem. in Supp. of Motion to Set Aside Default Exh. B, C). Alliaura Marine had no relationship with Jeantot Marine prior to purchasing its assets. (Bocquillon Aff. ¶ 5). In March 2000, Alliaura Marine ceased to exist as a business entity after a merger with another company. (Bocquillon Aff. ¶ 9). The merged companies now operate as a corporation named Groupe Kirie.³ (Bocquillon Aff. ¶ 9).

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B. Procedural Background

This matter was originally filed as a maritime and admiralty tort claim. Plaintiff, a resident of Australia, sought damages allegedly resulting from an accident on a catamaran named "Forty Roses," which was anchored at a pier in Charleston, South Carolina. (Complaint at 2). Plaintiff alleged that all of defendants collectively manufactured the "Forty Roses" and placed it into the stream of commerce. (Complaint ¶ 7).

Although the Complaint was originally filed on November 4, 1999, service was not attempted on any of defendants until March 13, 2000. (Infinger Aff. in Supp. of Request for Entry of Default ¶ 4). Plaintiff's counsel retained the services of APS International, Ltd. to assist with the service of defendants in France. (Infinger Aff. in Supp. of Request for Entry of Default ¶ 6). On March 13, 2000, a copy of the Summons and Complaint was delivered to Alliaura Marine in Les Sables d'Olonne, France. (Bocquillon Aff. ¶¶ 2, 3). The Summons and Complaint were served pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters⁴ ("Hague Convention") by a "huissier"—a person authorized under French law to effect service of process. (Pl's Mem. in Opp.Exh. A). The documents served upon Alliaura Marine were in French and English and contained an explanation of how and when to respond, as well as the address and phone number of the huissier. (Pl's Mem. in Opp.Exh. A).

Alliaura Marine did not respond within the prescribed twenty days, and on October 31, 2000, plaintiff sought an entry of default against all defendants. On May 8, 2001, a default judgment for $2,029,886.00 was entered by the court as to all defendants, and notice of that judgment was faxed to Groupe Kirie. (Bocquillon Aff. ¶ 10). Groupe Kirie did not respond. (Bocquillon Aff. ¶ 11). After plaintiff petitioned the court for an injunction and an order allowing discovery to attempt to satisfy the judgment, Groupe Kirie responded by filing this motion.

II. Legal Analysis

Groupe Kirie is seeking relief from the default judgment under Rule 60(b)(1) and (4). Under Rule 60(b), "[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding" based upon six potential grounds. Fed.R.Civ.P. 60(b). Groupe Kirie claims that the judgment is void for lack of personal jurisdiction and relief should be granted under Rule 60(b)(4). (Def's Motion to Set Aside Default at 1). In the alternative, Groupe Kirie asserts that even if the judgment is not void, relief should be granted under Rule 60(b)(1). (Def's Motion to Set Aside Default at 1-2). Finally, Groupe Kirie argues that it has satisfied all of the threshold requirements for bringing a motion under Rule 60(b). (Def's Mem. in Supp. of Motion to Set Aside Default at 5).

Plaintiff argues that this court does have personal jurisdiction over Groupe Kirie and that Groupe Kirie has failed to meet even the threshold requirements for bringing a motion under Rule 60(b). (Pl's Mem. in Opp. at 5-6).

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A. Void Judgment—Rule 60(b)(4)

Groupe Kirie argues that it is entitled to relief from the default judgment pursuant to Rule 60(b)(4) because this court lacks personal jurisdiction. (Def's Mem. in Supp. of Motion to Set Aside Default at 12). In order for a court to validly exercise personal jurisdiction over a non-resident defendant, a statute must authorize the service of process, and the exercise of jurisdiction must comport with the Due Process Clause of the Fourteenth Amendment. Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.1993). "South Carolina has interpreted its long-arm statute to extend personal jurisdiction to the constitutional limits imposed by federal due process," and therefore this court's "inquiry must focus on due process." Foster v. Arletty 3 Sarl, 278 F.3d 409, 414 (4th Cir.2002).

In determining whether the exercise of personal jurisdiction comports with due process, "the constitutional touchstone remains whether the defendant purposefully established `minimum contacts' in the forum State." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Once minimum contacts have been established, "these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with `fair play and substantial justice.'"⁵ Id. at 476, 105 S.Ct. 2174.

The Supreme Court has found that "due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotations omitted). The Court has noted that "`it 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, thus invoking the benefits and protections of its laws.'" Burger King Corp., 471 U.S. at 475, 105 S.Ct. 2174 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)) (emphasis added). The "`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. (internal citations omitted). Due process is satisfied, however, "where the contacts proximately result from actions by the defendant himself that create a `substantial connection' with the forum State." Id. (emphasis in original).

In this case, Groupe Kirie does not have minimum contacts with South Carolina. Groupe Kirie transacts no business in South Carolina, and none of its agents or employees are in South Carolina. (Bocquillon Supp.Aff. ¶¶ 6, 7).⁶ Since 1996, no agents of Groupe Kirie or Alliaura Marine have visited South Carolina for business purposes. (Bocquillon Supp.Aff. ¶ 8). Further, Groupe Kirie owns no property in

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this state, does not advertise here, is not licensed to do business in South Carolina, does not hold itself out as doing business here, does not provide any services or advice to customers in this state, and does not maintain a customer relations network for customers in this state. (Bocquillon Supp.Aff. ¶¶ 9-13).

The Catamaran Company, located in Florida, is the exclusive distributor of Groupe Kirie catamarans, which it markets and sells in the United States under the brand name "Privilège." (Bocquillon Supp.Aff. ¶ 14). The Catamaran Company performed all advertising, marketing, and distribution of "Privilège" catamarans in the United States. (Bocquillon Supp.Aff. ¶ 15). As a result of the distribution agreement, Groupe Kirie has sold a total of 23 "Privilège" catamarans exclusively to The Catamaran Company. No sales have been made to any other residents of the United States. (Bocquillon Supp.Aff. ¶ 16). Alliaura Marine and Groupe Kirie have never sold a "Privilège" catamaran to a resident of South Carolina.⁷ (Bocquillon Supp.Aff. ¶ 17).

In response, plaintiff does not contest any of the evidence presented by Groupe Kirie but instead argues that Groupe Kirie's website as well as its national advertisement provides the necessary minimum contacts for personal jurisdiction.⁸ Further, plaintiff argues that Groupe Kirie has waived its personal jurisdiction defense. The court finds plaintiff's arguments unpersuasive.⁹

1. Groupe Kirie's Website

Plaintiff argues that Groupe Kirie's website constitutes sufficient contacts with South Carolina for personal jurisdiction. (Pl's Mem. in Opp. at 6). The Fourth Circuit has not directly addressed when a website can satisfy the minimum contacts required for personal jurisdiction. However, in dicta, the court noted that it would be hesitant to exercise personal jurisdiction based solely on a website that, although partially interactive, only invited visitors to the site to e-mail questions and information requests. Christian Science Bd. of Directors of First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 218 n. 11 (4th Cir.2001). In Nolan, the court cited approvingly to Mink v. AAAA Dev. LLC, 190 F.3d 333, 337 (5th Cir.1999), where the Fifth Circuit found no personal jurisdiction based on a website, even though the website provided visitors with a printable mailin form, a toll-free telephone number, and the defendant's mailing address.

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