                                                                          FILED
                                                              United States Court of Appeals
                                        PUBLISH                       Tenth Circuit

                     UNITED STATES COURT OF APPEALS               December 19, 2012

                                                                  Elisabeth A. Shumaker
                                  TENTH CIRCUIT                       Clerk of Court



 FIREMAN'S FUND INSURANCE
 COMPANY; ZURICH INSURANCE
 COMPANY, LTD., as Subrogees to Boart
 Longyear, Inc.,

             Plaintiffs - Appellants,

 v.                                                     No. 12-2021

 THYSSEN MINING CONSTRUCTION
 OF CANADA, LTD.; MUDJATIK
 THYSSEN MINING JOINT VENTURE,

             Defendants - Appellees,

 and

 COMINCO ENGINEERING SERVICES,
 LTD., DOES 1 - 10 INCLUSIVE,

             Defendant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW MEXICO
                   (D.C. NO. 6:10-CV-00401-MV-LFG)


Thomas M. Dunford, Cozen O’Connor, Denver, Colorado, appearing for Appellants.
Jennifer L. Collins (Ada B. Priest, with her on the brief), Madison & Mroz, P.A.,
Albuquerque, New Mexico, appearing for Appellees.


Before MURPHY, EBEL, and MATHESON, Circuit Judges.


MATHESON, Circuit Judge.


      Fireman’s Fund Insurance Company and Zurich Insurance Company Ltd.

(collectively “Plaintiffs”), as subrogees of Boart Longyear, Inc., sued Thyssen Mining

Construction of Canada Ltd. (“Thyssen”) and Mudjatik Thyssen Mining Joint Venture

(“MTM”) (collectively “Defendants”) in New Mexico for negligence relating to the

collapse of a mine that MTM was excavating in Canada. The district court dismissed

MTM for lack of personal jurisdiction and dismissed the entire case under the forum non

conveniens doctrine. The Plaintiffs filed a timely appeal. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm the dismissal of MTM for lack of personal jurisdiction and

reverse the dismissal of Plaintiffs’ complaint under forum non conveniens.

                                I.     BACKGROUND

      A. Factual Background

      This case arises from the partial collapse of the Cigar Lake Uranium Mine in

Saskatchewan, Canada, during an MTM excavation project. MTM is a joint venture

formed by two independent companies—Thyssen, the sponsor and managing partner, and

Mudjatik Enterprises, Inc., a Saskatchewan-based business corporation—to undertake



                                           -2-
mining and contracting work in Northern Saskatchewan and to excavate the Cigar Lake

Mine.

        In November 2004, Boart Longyear, Inc., an excavation company headquartered

in Salt Lake City, Utah, contracted with Cameco Corporation, a Saskatchewan uranium

producer with mines in Canada and the United States, to provide skilled labor and drilling

equipment for uranium ore extraction at the Cigar Lake Mine. Cameco then contracted

with MTM to excavate underground tunnels at the Cigar Lake Mine by drilling and

blasting. On October 22, 2006, while MTM was excavating an underground tunnel at

this mine, a portion of the tunnel collapsed and flooded, causing $3,766,000 of damage to

Boart Longyear’s drilling equipment.

        Plaintiffs Fireman’s Fund Insurance Company and Zurich Insurance Company

Ltd. insured Boart Longyear before the Cigar Lake Mine collapse. Boart Longyear

submitted insurance claims to Plaintiffs after the mine collapsed and received payment

equal to the $3,766,000 in damages caused by the collapsed tunnel and partial flooding.

Plaintiffs, as subrogees of Boart Longyear, now seek damages for Defendants’ allegedly

negligent drilling and blasting excavation procedures at the Cigar Lake Mine.

        B. Procedural Background

        Plaintiffs sued the Defendants for negligence in Saskatchewan, Canada, on July

20, 2009. The Defendants have asserted a statute of limitations defense in that lawsuit,

which, if successful, would result in dismissal of Plaintiffs’ case. The court has not

decided this issue.
                                            -3-
       Plaintiffs also sued the same Defendants for the same claims in New Mexico state

court on December 21, 2009. Defendants removed the suit to federal court based on

diversity jurisdiction. No party is a New Mexico resident. Thyssen conducts business

there, but MTM itself has no contacts with New Mexico. Defendants filed a motion to

dismiss based on lack of personal jurisdiction and improper venue.

       The district court held that Thyssen had sufficient contacts with New Mexico to

confer personal jurisdiction but that Plaintiffs had not alleged sufficient facts to subject

MTM to personal jurisdiction. The court explained that Plaintiffs had not made a prima

facie showing of personal jurisdiction over MTM or requested an evidentiary hearing to

determine whether MTM has sufficient minimum contacts with New Mexico.1 Thus, the

court held that it lacked personal jurisdiction over MTM.

       The district court also exercised its discretion to dismiss the entire case under the

forum non conveniens doctrine. It found that New Mexico is an inconvenient forum and

that Canada provided a presently available adequate alternative forum despite the

pending statute of limitations issue in the Canadian case.

       Plaintiffs filed a timely appeal. They contest (1) the dismissal of MTM for lack of

personal jurisdiction and (2) the grant of Defendants’ motion to dismiss under the forum

non conveniens doctrine. Thyssen did not cross-appeal on the personal jurisdiction issue.

       1
         The Plaintiffs did request the opportunity for discovery or an evidentiary hearing
on whether Thyssen’s contacts in New Mexico were sufficient to confer personal
jurisdiction over MTM, but this request relied on the agency theory discussed below, not
on a showing of personal jurisdiction over MTM based on MTM’s contacts.

                                              -4-
                                   II.     DISCUSSION

       A. Personal Jurisdiction

       When a district court has dismissed a defendant for lack of personal jurisdiction

based on the plaintiff’s failure to allege sufficient contacts of the defendant with the

forum, “[w]e review [the] district court’s ruling on [the] jurisdictional question de novo.

Thus, our task is to determine whether the plaintiffs’ allegations . . . make a prima facie

showing of the minimum contacts necessary to establish jurisdiction over each

defendant.” Rambo v. Am. S. Ins. Co., 839 F.2d 1415, 1417 (10th Cir. 1988) (citations

omitted).

       Personal jurisdiction is established by the laws of the forum state and must comport

with constitutional due process. Intercon, Inc. v. Bell Atl. Internet Solutions, Inc., 205 F.3d

1244, 1247 (10th Cir. 2000). New Mexico’s long-arm statute, N.M. Stat. Ann. § 38-1-16

(1971), “is coextensive with constitutional limitations imposed by the Due Process

Clause.” Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006); see also Tercero v.

Roman Catholic Diocese of Norwich, 48 P.3d 50, 54 (N.M. 2002). Personal jurisdiction

over a nonresident defendant satisfies due process if there are sufficient “minimum

contacts between the defendant and the forum State.” World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 291 (1980) (quotations omitted); Intercon, 205 F.3d at 1247. The

minimum contacts may support specific jurisdiction or general jurisdiction. Id.

       For specific jurisdiction, the defendant must have sufficient minimum contacts

with the forum state, and jurisdiction over the defendant cannot offend “traditional
                                              -5-
notions of fair play and substantial justice.” Asahi Metal Indus. Co., Ltd. v. Super. Ct. of

Cal., Solano Cnty., 480 U.S. 102, 113 (1987). The minimum contacts must show that

“the defendant ‘purposefully avail[ed] itself of the privilege of conducting activities

within the forum State.’” Id. at 109 (quotations omitted). The contacts with the forum

must make being sued there foreseeable so that the defendant could “reasonably

anticipate” the suit. World-Wide Volkswagen, 444 U.S. at 297. The litigation must

“result[] from alleged injuries that arise out of or relate to those activities.” Intercon, 205

F.3d at 1247 (quotations omitted).

       General jurisdiction requires that a defendant have contacts with the forum “so

continuous and systematic as to render [it] essentially at home in the forum State.”

Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011)

(quotations omitted); see also Trujillo, 465 F.3d at 1218 n.7 (general jurisdiction requires

“‘continuous and systematic’ general business contacts with the forum state” (quoting

Helicopteros Nacionales v. Hall, 466 U.S. 408, 415 (1984))). Unlike for specific

jurisdiction, the litigation need not arise from the defendant’s activities in the forum.

       The district court found that New Mexico courts have general jurisdiction over

Thyssen but neither general nor specific jurisdiction over MTM. The court explained that




                                              -6-
although New Mexico courts have jurisdiction over businesses that are registered and

doing business in the state,2 jurisdiction over Thyssen does not extend to MTM.

       Plaintiffs argue on appeal that personal jurisdiction over MTM can be based on an

“agency theory.” Some courts have held that the actions of an agent, such as a partner,

can confer personal jurisdiction over a partnership or joint venture. See, e.g., Donatelli v.

Nat’l Hockey League, 893 F.2d 459, 466 (1st Cir. 1990) (stating that under the agency

theory, a “partner is deemed by law and contract to be the partnership’s general agent”).

The Tenth Circuit has recognized that “a principal may be subject to the jurisdiction of

the court because of the activities of its agent within the forum state,” but this agency

theory applies only when the agent’s “acts are committed in the course of or within the

scope of the agent’s employment.” Taylor v. Phelan, 912 F.2d 429, 433 (10th Cir. 1990)

(emphasis added).

       Plaintiffs argue that the district court has jurisdiction over MTM because it has

jurisdiction over Thyssen, the managing partner of the MTM joint venture.3 They


       2
         New Mexico’s long-arm statute provides for personal jurisdiction over “[a]ny
person, whether or not a citizen or resident of this state, who. . . submits himself or his
personal representative to the jurisdiction of the courts of this state as to any cause of
action arising from . . . the transaction of any business within this state.” N.M. Stat. Ann.
§ 38-1-16(A)(1) (1971).
       3
         Plaintiffs cite Curtis Publishing Co. v. Cassel, 302 F.2d 132, 138 (10th Cir.
1962) to support this contention. That case involved actions of a “wholly owned but
independent subsidiary” which was essentially an alter ego of the principal corporation.
Actions of alter egos confer jurisdiction on principal corporations because the nature of
the alter ego gives it implied actual authority to act for the corporation. Id. Thyssen is

                                             -7-
contend that Thyssen’s actions need only be incidental to the joint venture to confer

personal jurisdiction over MTM.

       Plaintiffs’ arguments stretch the agency theory too far. Thyssen’s actions in New

Mexico—registering to do business in the state, conducting transactions there, and

designating an agent for service of process—were completely unrelated to the MTM joint

venture, which was created for the sole purpose of completing the Canadian drilling

project. See Quarles v. Fuqua Industries, Inc., 504 F.2d 1358, 1364-65 (10th Cir. 1974).

Thus, the agency theory is inapplicable.

       Plaintiffs’ arguments for personal jurisdiction over MTM therefore fail. They did

not allege any facts to establish that MTM has the requisite minimum contacts with New

Mexico to confer personal jurisdiction, nor did they allege facts showing that the New

Mexico district court had personal jurisdiction over MTM under the agency theory.

Thyssen’s acts were not “committed in the course of or within the scope of the agent’s

[i.e., Thyssen’s] employment.” Taylor, 912 F.2d at 433.

        Finally, Plaintiffs contend that the district court erred by failing to grant an

evidentiary hearing on the agency basis for jurisdiction. District courts have discretion to

hold or deny an evidentiary hearing to determine personal jurisdiction. Dudnikov v.

Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1069 (10th Cir. 2008). Plaintiffs

asked for an evidentiary hearing to show that Thyssen’s contacts in New Mexico confer

not a wholly owned subsidiary or alter ego of MTM. Instead, MTM was formed by two
independent companies, as a joint venture to complete the Cigar Lake Mines.

                                             -8-
personal jurisdiction over MTM, but they did not allege that Thyssen’s contacts with

New Mexico relate to the Canadian project. See Melea, Ltd. v. Jawer SA, 511 F.3d 1060,

1065 (10th Cir. 2007) (explaining that plaintiffs must make at least a prima facie showing

of personal jurisdiction when there is no evidentiary hearing). Instead, they relied on the

argument that Thyssen is an agent of MTM with respect to the Canadian mining project

and does business in New Mexico. As noted above, this argument fails to support

personal jurisdiction, much less justify an evidentiary hearing.

       We therefore affirm the district court’s dismissal of MTM for lack of personal

jurisdiction.

       B. Forum Non Conveniens

       “The forum non conveniens determination is committed to the sound discretion of

the trial court.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). This court may

reverse the district court’s discretionary decision on this issue only “when there has been

a clear abuse of discretion; where the court has considered all relevant public and private

interest factors, and where its balancing of these factors is reasonable, its decision

deserves substantial deference.” Id.

       Although the district court’s decision is entitled to substantial deference, its

discretion is not unlimited. Courts have less discretion to dismiss cases based on forum

non conveniens than they have to transfer cases within our unified federal courts. See id.

at 253 (“District courts were given more discretion to transfer . . . than they had to

dismiss on grounds of forum non conveniens.”); Chrysler Credit Corp. v. Country
                                             -9-
Chrysler, Inc., 928 F.2d 1509, 1515 (10th Cir. 1991). This is especially true when

dismissal in favor of a foreign forum creates a “danger that [the plaintiffs] will be

deprived of any remedy” or “the remedy provided by the alternative forum is so clearly

inadequate or unsatisfactory that it is no remedy at all.” Piper Aircraft, 454 U.S. at 254-

55. In such cases, dismissal may “not be in the interests of justice.” Id. at 254; see also

Gschwind v. Cessna Aircraft Co., 161 F.3d 602, 607 (10th Cir. 1998) (noting that despite

the deference given to the district court’s decision in forum non conveniens cases,

dismissal may still be barred if there is no way to ensure that the merits of the case will

be heard in the foreign jurisdiction).

       Courts apply a two-step test to determine whether a case may be dismissed under

the forum non conveniens doctrine when the only alternative forum is in a foreign

country. First, there must be “an adequate alternative forum in which the defendant is

amenable to process.” Id. at 605. Second, the court must confirm that foreign law is

applicable. Id.; Rivendell Forest Prod., Ltd. v. Can. Pac. Ltd., 2 F.3d 990, 994 (10th Cir.

1993) (holding that the doctrine of “forum non conveniens is not applicable if American

law controls”). “If the answer to either of these questions is no, the forum non

conveniens doctrine is inapplicable.” Gschwind, 161 F.3d at 605-06. All parties agree

that Canadian law applies, so the question here is whether an adequate alternative forum

exists in which Defendants are amenable to process.

       “At the outset of any forum non conveniens inquiry, the court must determine

whether there exists an alternative forum. Ordinarily, this requirement will be satisfied
                                             -10-
when the defendant is amenable to process in the other jurisdiction.” Piper Aircraft, 454

U.S. at 254 n. 22 (quotations omitted). But that is not the end of the analysis. The

Supreme Court further explained that a defendant’s amenability to process is necessary

but not sufficient to create an adequate alternative forum in a foreign jurisdiction. If the

remedy provided by the foreign forum is “clearly unsatisfactory, the other forum may not

be an adequate alternative, and the initial requirement may not be satisfied.” Id.

(emphasis added). For example, dismissal is inappropriate if “the alternative forum does

not permit litigation of the subject.” Id.

       The district court was premature in determining that the Canadian court is an

adequate alternative forum. The forum non conveniens decision focused on the

applicability of Canadian law and the inconvenience of New Mexico as a forum. All

parties agree that Canadian law applies. And we agree with the district court that the

public and private interests make New Mexico an inconvenient forum. No party is a New

Mexico resident, and trying the case thousands of miles away from the Canadian mine

where the events occurred would complicate management of witnesses and evidence.

       Even so, an adequate alternative forum must be available. See Gschwind, 161 F.3d

at 605. Sometimes an inconvenient forum is the only available forum.

       Defendants must show that an adequate alternative forum exists. Id. at 606 (“The

defendant must prove that the alternative forum is both available and adequate.”

(citations omitted)). Defendants have not yet met this burden. They argue that the court

in Canada is an adequate alternative forum. But they also claim they cannot be sued
                                             -11-
there based on the statute of limitations. Defendants’ position in the Canadian

proceedings creates the undeniable possibility that the Canadian forum will be

unavailable to the Plaintiffs.

         Defendants are trying to have it both ways—arguing that Canada is an adequate

alternative forum while simultaneously raising a statute of limitations defense to the

proceedings there. If the Canadian court rules in Defendants’ favor on whether the

statute of limitations bars Plaintiffs’ claims, Plaintiffs will have no adequate alternative

forum.

         Defendants’ argue they have shown that Canada is an adequate alternative forum

because forum non conveniens should only require a “presently available” alternative

forum. The Canadian court is presently available, they contend, because it has not yet

ruled on the statute of limitations defense. Their reliance for this argument on Norex

Petroleum Ltd. v. Access Industries, Inc., 416 F.3d 146, 159 (2d Cir. 2005), is misplaced.

Indeed, Norex supports Plaintiffs’ position here rather than Defendants’.

         In Norex, the Second Circuit reversed a district court’s forum non conveniens

dismissal because the alternative forum’s filing deadlines had already lapsed, leaving no

adequate alternative forum. See id. at 159-60. Here, Plaintiffs face the real possibility

that their claims will be similarly time-barred in the Canadian court. As the Norex court

recognized, an alternative forum cannot be adequate “‘if a statute of limitations bars the

bringing of [a] case’ in a foreign forum that would be timely in the United States.” Id. at

159 (quoting Bank of Credit & Commerce Int’l (Overseas) Ltd. v. Bank of Pakistan, 273
                                             -12-
F.3d 241, 246 (2d Cir. 2001)). Merely because plaintiffs in Norex brought their case after

the statute of limitations had run and Plaintiffs here brought their case while the statute of

limitations issue is pending should not produce different conclusions on the availability

of an adequate alternative forum.

         The district court’s dismissal of Plaintiffs’ claims was premature because the

Canadian court has not yet ruled on Defendants’ statute of limitations defense. Until this

ruling occurs, the availability of the Canadian court as an adequate alternative forum is

unclear and dismissal of the case in New Mexico risks depriving the Plaintiffs of any

forum.

                                   III.   CONCLUSION

         We affirm the district court’s dismissal of MTM for lack of personal jurisdiction.

We reverse the district court’s dismissal of Plaintiffs’ case under the forum non

conveniens doctrine. If the Canadian court decides that the Defendants’ statute of

limitations defense bars Plaintiffs’ case, Plaintiffs would be left without an adequate

alternative forum. We remand this case to the district court for further proceedings

consistent with this decision.




                                             -13-
