                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-17-2004

Saudi v. Acomarit Maritimes
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1609




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                                                          NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                 No. 03-1609


                        SHERIFF SAUDI, CAPTAIN,
                                           Appellant

                                      v.

                 ACOMARIT MARITIMES SERVICES, S.A.


                On Appeal from the United States District Court
                   for the Eastern District of Pennsylvania
                     D.C. Civil Action No. 01-cv-04301
                      (Honorable Michael M. Baylson)


                            Argued April 22, 2004

    Before: SCIRICA, Chief Judge, ROSENN and GREENBERG, Circuit Judges

                         (Filed: September 17, 2004)


JOE ALFRED IZEN, JR., ESQUIRE (Argued)
5222 Spruce Street
Bellaire, Texas 77401
       Attorney for Appellant


THOMAS R. NORK, ESQUIRE (Argued)
Bell, Ryniker, Letourneau & Nork
5847 San Felipe, Suite 4600
Houston, Texas 77057
       Attorney for Appellee
                                   OPINION OF THE COURT


SCIRICA, Chief Judge.

          In this personal injury suit, petitioner appeals a Fed. R. Civ. P. 12(b)(6) dismissal

by the District Court for lack of specific and general personal jurisdiction. We will

affirm.

                                                 I.

          Plaintiff Sheriff Saudi was employed as a “mooring master” by American Eagle

Tankers, a global maritime services company. As a mooring master, Saudi was assigned

by his employer to moor supertankers or vessels on the high seas for the purpose of on-

loading and off-loading petroleum and other cargo. Supertankers are often unable to

enter American ports in the continental United States because the vessels’ drafts exceed

the depth of domestic ports.

          Defendant Acomarit Maritimes Services, S.A. is an international ship management

company. Acomarit is a Swiss company with headquarters in Bermuda. It neither

engaged in business in Pennsylvania nor registered to do business in Pennsylvania. It

does not maintain offices in Pennsylvania or an agent for service of process. It manages

vessels, including supertankers, handling the vessels’ crewing and provisioning, and

ensuring that it arrives at its intended destination. Acomarit managed the Marine

Atlantic, the supertanker involved in plaintiff’s accident.


                                                 2
       On M ay 17, 1999, Saudi left a vessel managed and operated by his employer,

disembarked on to a tender vessel, and was placed aboard the Marine Atlantic

supertanker. At the time, the Marine Atlantic was at anchor sixty miles southeast of

Galveston, Texas, in international waters. The crane transferring Saudi to the tender

vessel collapsed, causing him to fall fifty feet into the Gulf of Mexico. Saudi alleges he

was lashed by the wire support cable of the crane and suffered extensive injuries

including a broken arm, nerve damage, broken ribs, injured lungs, as well as lost wages

and income.

                                             II.

       Saudi filed an admiralty and maritime action in the United States District Court for

the Southern District of Texas against the owner of the Marine Atlantic, the manufacturer

and servicer of the allegedly defective crane, the owner of the crude oil being stored on

the M arine Atlantic, and Acomarit. Saudi v. Marine Atlantic, 159 F. Supp. 2d 469 (S.D.

Tex. 2000). He alleged claims of negligence, unseaworthy vessel, breach of warranty of

merchantability, and strict liability in tort. Id. at 472. On February 1, 2000, the federal

court in Texas granted without prejudice Acomarit’s motion to dismiss for lack of

personal jurisdiction. The court held Saudi failed to demonstrate sufficient minimum




                                              3
contacts to Texas or to the United States to establish specific or general personal

jurisdiction in Texas or general jurisdiction under Fed. R. Civ. P. 4(k)(2). Id. at 483.1

       On May 16, 2001, Saudi filed a complaint in Pennsylvania state court, seeking

actual and punitive damages against Acomarit for negligently failing to properly inspect

and maintain the Marine Atlantic's crane, as well as negligently failing to make the

Marine Atlantic safe for performing the operations for which he was hired. Saudi alleged

jurisdiction was proper in Pennsylvania because Acomarit “employed” Thomas Garrett, a

resident of Nazareth, Pennsylvania, who carried out Acomarit’s business partly from

Pennsylvania. Acomarit timely removed to federal court under 28 U.S.C. § 1332 and

28 U.S.C. § 1331, as the case involved admiralty and maritime jurisdiction under 28

U.S.C. § 1333.

       Acomarit filed a motion to dismiss for lack of personal jurisdiction, which was

denied with leave to refile by July 30, 2002. After a limited period of discovery,

Acomarit filed a renewed motion to dismiss for lack of personal jurisdiction, which the

District Court granted on January 31, 2003. 245 F. Supp. 2d at 667. The court found it




   1
    Saudi has also filed actions in connection with his accident against various defendants
in at least five federal jurisdictions, as well as in Texas and Wisconsin state courts. See
Saudi v. Northrop Grumman Corp., 273 F. Supp. 2d 101 (D.D.C. 2003) (products liability
action); Saudi v. S/T Marine Atlantic, 2001 U.S. Dist. LEXIS 15155, 2001 WL 893871
(S.D. Tex. Feb. 20, 2001) (maritime negligence action); Saudi v. Valmet-Appleton, Inc.,
219 F.R.D. 128 (E.D. Wis. 2003) (products liability action); Saudi v. V. Ship Switzerland,
S.A., 2004 U.S. App. LEXIS 5923 (Mar. 31, 2004). The record indicates he has not been
able to establish personal jurisdiction in any of the federal courts against Acomarit.

                                              4
lacked general jurisdiction because Acomarit’s contacts with Pennsylvania were sporadic

at best, rather than continuous and systematic, id. at 669, 675; and that it lacked specific

jurisdiction because Saudi did not allege that Acomarit purposefully directed its activities

at the forum. The court found the Southern District of Texas’s ruling on Fed. R. Civ. P.

4(k)(2) jurisdiction did not amount to claim preclusion, since a final adjudication on the

merits (one of the requirements for claim preclusion) cannot result from a dismissal

without prejudice for lack of personal jurisdiction. But the court rejected Rule 4(k)(2)

jurisdiction on its merits, holding there was no nexus to the United States since the

accident took place outside the territorial waters of the United States and had no effect

inside the Untied States. Id. at 679-80. The court also rejected Saudi’s motion to compel

discovery, finding that Acomarit properly complied with Saudi’s discovery requests. Id.

at 681.

          Saudi filed this timely appeal.

                                              III.

          We review de novo the District Court’s dismissal of a party for lack of personal

jurisdiction, Pinker v. Roche Holdings, Ltd, 292 F.3d 361, 368 (3d Cir. 2002), but we

review factual findings for clear error. Pennzoil Products Co. v. Colelli & Assoc., Inc.,

149 F.3d 197, 200 (3d Cir. 1998). We review for abuse of discretion the District Court’s

discovery rulings. Ins. Corp. of Ir. v. Companie Des Bauxites De Guinee, 456 U.S. 694,

707 (1982). We have appellate jurisdiction under 28 U.S.C. § 1291.



                                               5
                                             IV.

A. Personal Jurisdiction in Pennsylvania

       Saudi claims that the District Court erred in dismissing his suit for lack of personal

jurisdiction. Fed. R. Civ. P. 4(e) allows a district court to assert personal jurisdiction over

a non-resident to the extent allowed by the law of the forum state. Time Share Vacation

Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984). Pennsylvania’s long-arm

statute provides that a court may exercise personal jurisdiction over non-residents “to the

fullest extent allowed under the Constitution of the United States.” 42 Pa. Cons. Stat.

Ann. § 5322(b).

       The Due Process Clause of the Fourteenth Amendment guarantees in personam

jurisdiction may only be asserted over a nonresident defendant corporation if that

defendant has “certain minimum contacts with [the forum] 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 (1945) (quotation omitted). In

assessing personal jurisdiction, the court must resolve the question based on the

circumstances that the particular case presents. Burger King v. Rudzewicz, 471 U.S. 462,

485 (1985).

       A court may exercise personal jurisdiction over a defendant if the defendant has

specific or general contacts with the forum. Specific jurisdiction is appropriate only if the

cause of action is related to or arises out of the defendant’s forum-related activities, so



                                               6
that it should reasonably expect to be haled into court. Vetrotex Certainteed Corp. v.

Consol. Fiber Glass Prod. Co., 75 F.3d 147, 151 (3d Cir. 1996); Helicopteros Nacionales

de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8. The defendant must have “purposefully

directed his activities at residents of the forum” and the litigation must have resulted from

alleged injuries that “‘arise out of or relate[] to those activities.’” BP Chem. Ltd. v.

Formosa Chem. & Fibre Corp., 229 F.3d 254, 259 (3d Cir. 2000) (quoting Burger King,

471 U.S. at 472). This determination is both claim-specific and defendant-specific. See

Remick v. Manfredy, 238 F.3d 248, 255-56 (3d Cir. 2001); Rusk v. Savchuk, 444 U.S.

320, 332 (1980).

       If the cause of action does not “arise out of” the defendant foreign corporation’s

activities, a court may assert general jurisdiction if the corporation has “continuous and

systematic” contacts with the forum state. 466 U.S. at 414-15. The standard for

evaluating whether minimum contacts satisfy the test for general jurisdiction is more

stringent than the test applied to questions of specific jurisdiction. See Noonan v.

Winston Co., 135 F.3d 85, 93 (1st Cir. 1998).

       1. Specific Jurisdiction

       The District Court found no basis to exercise specific personal jurisdiction over

Acomarit, as Saudi presented no evidence demonstrating the underlying accident arose

out of or related to Acomarit’s contacts with or activities in Pennsylvania, such that

Acomarit “should reasonably expect being haled into court” in Pennsylvania. 245 F.



                                               7
Supp. 2d at 669 (quoting Vetrotex, 75 F.3d at 151). Saudi’s claims against Acomarit

relate only to an accident which occurred in the Gulf of M exico, not in Pennsylvania or its

territorial waters, and Saudi’s alleged injury did not arise from any activities Acomarit

“purposefully directed” at Pennsylvania. Id. We find no error.

       2. General Jurisdiction

       Saudi contends Acomarit had sufficient continuous and substantial contacts with

Pennsylvania to establish general jurisdiction over Acomarit through its alleged employee

Thomas Garrett. He claims that Osprey-Acomarit Ship Management employee Thomas

Garrett was actually a “hidden” employee of Acomarit. According to Saudi, Acomarit

hired Garrett as its port captain and entered into a joint venture with American Automar

to form a company called Osprey-Acomarit Ship Management (“Osprey-Acomarit”),

placed Garrett on that company’s payroll, and hid the fact that Acomarit used a resident

agent in the United States to carry out its business.

       Even if Garrett was employed by Acomarit, Saudi has not shown sufficient

contacts with Pennsylvania through Garrett’s employment to warrant general jurisdiction

over Acomarit. At most, Garrett traveled to and from Pennsylvania to Osprey-Acomarit’s

office in Maryland, where he had an office, sent some reports from his home in

Pennsylvania, and made some telephone calls and some e-mails to and from

Pennsylvania. There is no evidence that Acomarit conducted or solicited any business in

Pennsylvania. With the exception of one vessel that paid a port call after the Saudi



                                              8
accident, no Acomarit-managed vessels entered Pennsylvania waters. As such, these

actions in Pennsylvania are not sufficient to establish “continuous and systematic”

contacts with Pennsylvania. See, e.g., BP Chem. Ltd., 229 F.3d at 262 (finding lack of

continuous and systematic contacts where the defendant corporation has no personnel or

facilities in the forum and has not advertised or solicited business in the forum); Nichols

v. Searle & Co., 991 F.2d 1195, 1200 (4th Cir. 1993) (finding insufficient “continuous

and substantial activities” to justify general jurisdiction despite defendant’s solicitation

activities and employment of representatives in the forum state). The District Court did

not abuse its discretion in finding lack of general personal jurisdiction over Acomarit in

Pennsylvania.

B. Fed. R. Civ. P. 4(k)(2)

       1. Claim Preclusion and Issue Preclusion as Applied to the Rule 4(k)(2) Claim

       The federal court in Texas dismissed Saudi’s case without prejudice for lack of

personal jurisdiction. Acomarit contends Saudi already litigated whether jurisdiction lies

under Fed. R. Civ. P. 4(k)(2), so he should have been estopped from litigating the Rule

4(k)(2) claim before the District Court here. See Saudi v. S/T Marine Atlantic, 159 F.

Supp. 2d 469, 479-83 (S.D. Tex. 2000). Two types of estoppel might be applicable: res

judicata (claim preclusion) and collateral estoppel (issue preclusion).

       Claim preclusion does not apply here. Three elements are required for claim

preclusion to take effect: (1) a final judgment on the merits must have been rendered in a



                                               9
prior suit; (2) the same parties or their privies are involved; and (3) the subsequent suit is

based on the same cause of action as the original. Lubrizol Corp. v. Exxon Corp, 929

F.2d 960, 963 (3d Cir. 1991). The first prong has not been satisfied here. The federal

court in Texas dismissed Saudi’s suit for lack of personal jurisdiction, rather than issuing

a judgment “on the merits.” See Fed. R. Civ. P. 41(b); Compagnie des Bauxites de

Guinee v. L’Union Atlantique S.A. d’Assurances, 723 F.2d 357, 360 (3d Cir. 1983).

Furthermore, dismissals without prejudice are not considered to be “final judgments” as

required for claim preclusion to take effect. Trevino-Barton v. Pittsburgh Nat’l Bank,

919 F.2d 874, 877-78 (3d Cir. 1990). As the District Court correctly concluded, claim

preclusion does not bar Saudi from bringing the current Rule 4(k)(2) action.

       It is possible that issue preclusion, might bar Saudi’s Rule 4(k)(2) action.2 Issue

preclusion may apply to non-merits judgments which are conclusive as to those matters

actually adjudged. See Matosantos Commercial Corp. v. Applebee’s Int’l, Inc., 245 F.3d

1203, 1209 (10th Cir. 2001) (“Although the dismissal for lack of personal jurisdiction in

the Puerto Rico district court does not have res judicata effect, it does have collateral


   2
     While counsel for Acomarit mainly focused its arguments on claim preclusion, their
arguments appear to encompass issue preclusion as well. Counsel wrote in two separate
briefs, “the Court correctly noted that the issue of Rule 4(k)(2) jurisdiction was
‘previously resolved in the Texas litigation,’” App. 496, and “[t]he issue of Fed. R. Civ.
P. 4(k)(2) jurisdiction has already been decided by the United States District Court for the
Southern District of Texas and serves as res judicata to bar the re-litigation of that claim
in this case” (emphasis added). Furthermore, counsel for Acomarit supported its
contentions by citing to Montana v. Supreme Court of the United States, 440 U.S. 147,
153-55 (1979), a case addressing issue preclusion.

                                              10
estoppel effect, preventing the relitigation of issues decided in the Puerto Rico district

court”); Okoro v. Bohman, 164 F.3d 1059, 1063 (7th Cir. 1999). To establish issue

preclusion, Acomarit must demonstrate: “(1) the issue sought to be precluded is the same

as that involved in the prior action; (2) that issue was actually litigated; (3) it was

determined by a final and valid judgment; and (4) the determination was essential to the

prior judgment.” Burlington N. R.R. v. Hyundai Merchant Marine Co., 63 F.3d 1227,

1232 (3d Cir. 1995) (quoting In re Braen, 900 F.2d 621, 628-29 n.5 (3d Cir. 1990), cert.

denied, 498 U.S. 1066 (1991)). It appears all four elements may have been met here. The

Southern District of Texas decided the same Rule 4(k)(2) issue that Saudi now raises,

namely whether Acomarit was subject to personal jurisdiction based upon nationwide

contacts. See Saudi, 159 F.Supp.2d at 479-83, and Saudi, 245 F.Supp.2d at 676-681.

This issue was litigated in the Texas action, the Texas court issued a valid judgment

regarding Rule 4(k)(2) jurisdiction, and the issue of Rule 4(k)(2) jurisdiction was

essential to the Texas judgment in determining whether there was personal jurisdiction

over Acomarit. See 159 F.Supp.2d at 479-83. Nonetheless, the able District Court did

not specifically address issue preclusion and so we are reluctant to rule on it here,

especially since we believe plaintiff cannot prevail on the merits.

       2. Rule 4(k)(2) Discussion on the Merits

       Even if Saudi were permitted to bring a claim of personal jurisdiction under Fed.

R. Civ. P. 4(k)(2), his claim would fail. Rule 4(k)(2) allows a federal court to exert



                                               11
jurisdiction over a foreign defendant where the defendant lacks sufficient contacts in a

single state to bring it within the reach of the state’s long arm statute, yet has enough

contacts with the United States as a whole to make jurisdiction constitutional. Thomas A.

Coyne, Federal Rules of Civil Procedure II-25 (2d ed. 2002). The rule, enacted in

December 1993, provides:

       If the exercise of jurisdiction is consistent with the Constitution and laws of the
       United States, serving a summons or filing a waiver of service is also effective,
       with respect to claims arising under federal law, to establish personal jurisdiction
       over the person of any defendant who is not subject to the jurisdiction of the courts
       of general jurisdiction of any state.

Therefore, to establish personal jurisdiction, there must be: (1) a claim arising under

federal law; (2) the defendant must be beyond the jurisdictional reach of any state court of

general jurisdiction; and (3) the defendant must have sufficient contacts with the United

States so that the court’s exercise of personal jurisdiction over the defendant comports

with the due process requirements of the Constitution or other federal law. See BP Chem.

Ltd., 229 F.3d at 262; United States v. Swiss American Bank, Ltd., 191 F.3d 30, 38 (1st

Cir. 1999). The third prong of the test under Rule 4(k)(2)—minimum contacts—is

similar to that of personal jurisdiction for a particular state: “general jurisdiction is

available when the defendant’s contacts unrelated to the litigation are ‘continuous and

systematic.’” BP Chemicals, 229 F.3d at 262 (citing Helicopteros, 466 U.S. at 416.3


   3
   In Leasco, 468 F.2d 1326, a case decided before Rule 4(k)(2) was promulgated, the
Court of Appeals for the Second Circuit stated:
                                                                         (continued...)

                                               12
          Saudi claims he presented sufficient contacts with the United States, described by

the Texas court as a “laundry list” but not elaborated on, see 159 F. Supp. 2d at 483, to

ensure due process has been satisfied. He also argues his injury necessarily has an effect

within the United States.

          We do not believe that the “minimum contacts” presented by Saudi are sufficient

to establish personal jurisdiction over Acomarit. As the District Court noted, Saudi

presented even fewer contacts with the United States than the moving party in BP

Chemicals Ltd., 227 F.3d 254. In BP Chemicals, we found that a foreign defendant did

not have sufficient contacts with the United States as a whole to justify the exercise of

Rule 4(k)(2) jurisdiction. Id. at 258. Although the defendant Taiwanese corporation




   3
       (...continued)
           [T]he Restatement (Second) of Conflict of Laws, § 27, lists various bases for the
           exercise of judicial jurisdiction over an individual who is not present. Those
           relevant here are doing business in the state, § 35; doing an act in the state, § 36;
           and causing an effect in the state by an act done elsewhere, § 37.

468 F.2d at 1340. The Second Circuit chose three of the many factors under the
Restatement which apply to the facts of that particular case.
       See also, e.g., United States v. Swiss American Bank, Ltd., 191 F.3d 30 (1st Cir.
1999) (performing a Rule 4(k)(2) minimum contacts test but not limiting its analysis to
the three factors described above); Chew v. Dietrich, 143 F.3d 24 (2d Cir. 1998) (same);
World Tankers Carriers Corp., 99 F.3d 717 (5th Cir. 1996) (same); Central States v.
Reimer Express World Corp., 230 F.3d 934, 946 (7th Cir. 2000) (ERISA case); Doe v.
Unocal Corp., 27 F. Sup. 2d 1174 (C.D. Ca. 1998); aff’d, 248 F.3d 915 (9th Cir. 2001);
SEC v. Knowles, 87 F.3d 413, 416-19 (10th Cir. 1996) (involving a contract dispute);
Associated Transp. Line, Inc. v. Productos Fitosanitarios Proficol El Carmen, S.A., 197
F.3d 1070, 1074-76 (11th Cir. 1999) (tort case involving communication of
misinformation).

                                                 13
exported its products to the United States, held an ownership interest in a Delaware

corporation, and entered into contracts requiring its personnel to travel to the United

States for training, we held the cumulative effects of these contacts did not meet the

requirements for general personal jurisdiction under Rule 4(k)(2). Id. at 258-59. In this

case, there appear to be fewer jurisdictional connections than in BP Chemicals. Saudi’s

accident occurred outside the United States, and Saudi presents no evidence that

Acomarit solicited or transacted business in the United States. The District Court did not

err in finding lack of sufficient contacts with the United States.

C. Motion to Compel Discovery and Impose Sanctions

       Finally, Saudi alleges Acomarit abused the discovery process and blocked

discovery of jurisdictional facts. He alleges Acomarit committed unauthorized

redactions, submitted meritless objections to requests for telephone bills and financial

records showing reimbursements in Pennsylvania, and made unsupported claims that

documents were destroyed and cannot be produced. Saudi claims that he is entitled to a

finding of personal jurisdiction based on this alleged willful obstruction of discovery.

The District Court found no abuse of discovery. It noted, “Despite [Saudi’s] insistence

that Acomarit has not produced documents in its possession, [Saudi] has not produced

any evidence to prove that Acomarit is withholding documents.” Saudi, 245 F. Supp. at

681. We see no abuse of discretion.




                                             14
                                     V.

For the reasons stated above, we will affirm the judgment of the District Court.




                                     15
