13-4734-cv
Chirag v. MT Marida Marguerite Schiffahrts

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall Courthouse, 40 Foley Square, in the City of New York, on the 11th day of
March, two thousand fifteen.

Present:
            ROBERT A. KATZMANN,
                       Chief Judge,
            JOHN M. WALKER, JR.,
            DENNY CHIN,
                       Circuit Judges.

________________________________________________

BAHRI CHIRAG and DANGWAL SANDEEP,

            Plaintiffs-Appellants,

                    v.                                          No. 13-4734-cv

MT MARIDA MARGUERITE SCHIFFAHRTS, MARIDA
TANKERS, INC., and HEIDMAR, INC.,

            Defendants-Appellees,

XYZ SHIP OWNER and XYZ SHIP EMPLOYER,

         Defendants.
________________________________________________

For Plaintiffs-Appellants:                   MICHAEL A. WINKLEMAN, Lipcon, Margulies, Alsina &
                                             Winkleman, P.A., Miami, FL.
For Defendant-Appellee MT
Marida Marguerite Schiffahrts:             JOHN J. WALSH, Freehill, Hogan & Mahar, LLP, New
                                           York, NY.

For Defendant-Appellee Marida
Tankers, Inc.:                             PATRICK F. LENNON, Lennon, Murphy, Caufield &
                                           Phillips, LLC, New York, NY.

For Defendant-Appellee Heidmar,
Inc.:                                      TODD P. KENYON (Alton J. Evans, Jr., on the brief),
                                           Betancourt, Van Hemmen, Greco & Kenyon, LLC,
                                           New York, NY.


       Appeal from the United States District Court for the District of Connecticut (Underhill,
J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiffs-Appellants appeal from a final judgment entered on November 15, 2013, by the

United States District Court for the District of Connecticut (Underhill, J.). On appeal, plaintiffs

challenge four orders of the district court, two denying jurisdictional discovery entered on

November 21, 2012,1 and May 22, 2013, one dismissing the complaint with respect to MT

Marida Marguerite Schiffahrts (“Marida Marguerite”) for lack of personal jurisdiction, and one

dismissing the complaint with respect to Marida Tankers, Inc. (“Marida Tankers”) and Heidmar,

Inc. (“Heidmar US”) on grounds of forum non conveniens. We assume the parties’ familiarity

with the underlying facts, procedural history, and issues presented for review.




       1
         The district court granted the plaintiffs’ motion for jurisdictional discovery in the first
instance on August 15, 2012, before granting defendants’ motion for reconsideration and
denying jurisdictional discovery.

                                                  2
       We review a district court’s denial of jurisdictional discovery for abuse of discretion. See

Lehigh Valley Indus., Inc. v. Birenbaum, 527 F.2d 87, 93–94 (2d Cir. 1975). “Where, as here, the

district court relies on the pleadings and affidavits, and does not conduct a full-blown evidentiary

hearing, we review the district court’s resulting legal conclusions de novo.” Dorchester Fin.

Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 85 (2d Cir. 2013) (per curiam) (internal quotation

marks omitted). We review the district court’s dismissal of a complaint on grounds of forum non

conveniens for abuse of discretion. See Iragorri v. United Tech. Corp., 274 F.3d 65, 72 (2d Cir.

2001) (en banc). “Discretion is abused in the context of forum non conveniens when a decision

(1) rests either on an error of law or on a clearly erroneous finding of fact, or (2) cannot be

located within the range of permissible decisions, or (3) fails to consider all the relevant factors

or unreasonably balances those factors.” Pollux Holding Ltd. v. Chase Manhattan Bank, 329

F.3d 64, 70 (2d Cir. 2003) (internal citations omitted).

       First, the district court did not abuse its discretion in its November 21, 2012 order

denying plaintiffs’ motion for jurisdictional discovery with respect to Marida Marguerite prior to

adjudicating the defendant’s motion to dismiss for lack of personal jurisdiction. Where plaintiffs

do not establish a prima facie case that the district court has jurisdiction over the defendant, the

district court does not err in denying jurisdictional discovery. See Jazini v. Nissan Motor Co.,

Ltd., 148 F.3d 181, 186 (2d Cir. 1998). A prima facie case requires non-conclusory fact-specific

allegations or evidence showing that activity that constitutes the basis of jurisdiction has taken

place. Id. at 185. Here, with the exception of a single statement that “[t]he Subject Vessel . . .

regularly call[s] on ports in Connecticut,” all other allegations in the complaint are purely

conclusory. J.A. 2. And nothing contained in the two exhibits attached to plaintiffs’ motion for




                                                  3
jurisdictional discovery with respect to Marida Marguerite either supports plaintiffs’ single non-

conclusory allegation, or establishes a prima facie case2 for jurisdiction.

       Second, the district court correctly dismissed the complaint with respect to Marida

Marguerite for lack of personal jurisdiction. “In a federal question case,” as is the case here,

“where a defendant resides outside the forum state, a federal court applies the forum state’s

personal jurisdiction rules,” here, Connecticut. See PDK Labs, Inc. v. Friedlander, 103 F.3d

1105, 1108 (2d Cir. 1997). As explained by the Connecticut Supreme Court, the resolution of

jurisdictional questions involves a two-step analysis: first, the court must determine whether

Connecticut’s “long-arm statute authorizes the assertion of jurisdiction over the defendant[;]”

second, the court must determine if the exercise of jurisdiction over the defendant “violate[s]

constitutional principles of due process.” Knipple v. Viking Comm’ns, Ltd., 674 A.2d 426,

428–29 (Conn. 1996) (internal quotation marks omitted). The Due Process Clause requires that

personal jurisdiction over a nonresident corporation be based upon “certain minimum contacts

with the forum such that the maintenance of the suit does not offend traditional notions of fair

play and substantial justice.” Helicopteros Nacionales De Colombia S.A. v. Hall, 466 U.S. 408,



       2
         The strongest argument in support of a prima facie case for jurisdiction is an exhibit
attached to plaintiffs’ motion to conduct limited jurisdictional discovery, which states that
“Marida [Tankers] Inc. is managed by Nordic WOMAR, with offices in Singapore, Mumbai,
London, Copenhagen, Stamford, Houston, Bogota, Mexico City, and Buenos Aires, as general
agents.” J.A. 47 (emphasis added). Plaintiffs assert that this document, along with the allegation
that Marida Marguerite had contractual relations with Marida Tankers, satisfies the Connecticut
Long Arm Statute’s provision that “a court may exercise personal jurisdiction over any . . .
foreign partnership . . . who in person or through an agent (1) [t]ransacts any business within the
state.” Connecticut General Statute § 52-59b. But this document provides at most evidence that
Marida Tankers, a Marshall Islands company, had a Connecticut office or address; it provides no
evidence that Marida Marguerite, a German company, by virtue of having contractual relations
with a Marshall Islands company with a Connecticut address, therefore transacted any business
within the state of Connecticut.

                                                  4
414 (1984) (alteration and internal quotation marks). Where, as here, the cause of action does not

arise from the defendants’ contacts with the forum, defendants’ activities within the forum must

be of a “‘continuous and systematic’ nature,” id. at 416, such that the defendant “should

reasonably anticipate being haled into court there,” Burger King Corp. v. Rudzewicz, 471 U.S.

462, 474 (1985), by virtue of “there be[ing] 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,” id. at 475 (internal quotation marks omitted). Here, there is no

plausible allegation that Marida Marguerite had sufficient continuous and systematic contacts

with Connecticut that invoked the protections and benefits of Connecticut’s laws. Thus, the

district court appropriately dismissed the complaint against Marida Marguerite for lack of

personal jurisdiction.

       Third, the district court did not abuse its discretion in its May 22, 2013 order denying

plaintiffs’ motion for jurisdictional discovery with respect to Marida Tankers prior to

adjudicating defendants’ motion to dismiss on grounds of forum non conveniens. Although

plaintiffs contend that jurisdictional discovery was necessary to litigate defendants’ substantive

forum non conveniens motion, in fact, the Supreme Court has held that a district court is not

required to first establish its own jurisdiction before dismissing a suit on grounds of forum non

conveniens. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007).

Furthermore, the plaintiffs’ motion sought discovery with respect to defendants’ “base of

operations,” which is one of the factors considered by the court in a Jones Act choice of law

analysis. Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 309 (1970). But this court has held in

binding precedent that “maritime choice of law principles are not involved in a forum non




                                                 5
conveniens analysis.” Cruz v. Maritime Co. of Phillippines, 702 F.2d 47, 48 (2d Cir. 1983) (per

curiam).3 Thus, the district court did not abuse its discretion in denying jurisdictional discovery.

       Finally, the district court did not abuse its discretion in dismissing the complaint with

respect to Marida Tankers and Heidmar US on forum non conveniens grounds. The Second

Circuit has outlined a three-step forum non conveniens analysis in which this court must first,

determine the degree of deference properly accorded to the plaintiffs’ choice of forum; second,

consider whether the alternative forum proposed by the defendants is adequate to adjudicate the

dispute at issue; and third, balance the private and public interests implicated in the choice of

forum. See Norex Petroleum Ltd. v. Access Indus., 416 F.3d 146, 153 (2d Cir. 2005); Iragorri,

274 F.3d at 73–74. First, the district court correctly found “that the plaintiff’s choice of forum

should receive less deference in this case,” J.A. 654, as, inter alia, “plaintiffs are nationals and

residents of India,” id., and a lesser degree of deference is given to plaintiffs’ choice of forum

when they are foreign, see generally Iragorri, 274 F.3d at 74.

       Second, an adequate alternative forum exists in Germany. An alternative forum is

“available” where defendants are “‘amenable to process’ in the [alternative] jurisdiction,” and

“adequate” if it provides for “litigation of the subject matter of the dispute.” Piper Aircraft Co. v.



       3
           To the extent that plaintiffs contend the district court erred by not conducting a choice
of law analysis prior to its forum non conveniens analysis, that argument fails as well for the
same reason. Specifically, plaintiffs cite Antypas for the proposition that “[w]here the Jones Act
applies . . . a district court has no power to dismiss on grounds of forum non conveniens.”
Antypas v. Cia. Maritima San Basilio, S.A., 541 F.2d 307, 310 (2d Cir. 1976) (citation omitted).
However, that statement is non-binding dicta, as later explicitly clarified in Cruz. 702 F.2d at 48
(“Confusion may understandably have arisen from dicta in Antypas . . . which indicated that if
the Jones Act applied, the court was without power to dismiss on forum non conveniens grounds
. . . . [H]owever, in exceptional situations, . . . the district court may dismiss despite the
applicability of federal law. A case involving forum non conveniens . . . presents just such an
exceptional situation.” (internal quotation marks omitted)).

                                                  6
Reyno, 454 U.S. 235, 255 n. 22 (1981). First, Marida Marguerite and Marida Tankers are

amenable to process in Germany, as Marida Marguerite is a German limited partnership, and

Marida Tankers stipulated to jurisdiction in Germany.4 Second, as the district court properly

found, “[a]lthough plaintiffs seek a remedy under the Jones Act,” plaintiffs’ “underlying

allegations sound in negligence.” J.A. 656. And the district court here cited several other district

court decisions in this circuit finding that German courts have been found to be available to

adequately adjudicate negligence claims. See, e.g., Banculescu v. Compania Sud Americana De

Vapores, SA, No. 11-CV-2681, 2012 WL 5909696, at *7 (S.D.N.Y. Nov. 26, 2012).

       Third, both private and public interests weigh in favor of litigating this case in an

alternative forum. Under Gilbert, district courts consider as private interest factors “the relative

ease of access to sources of proof; availability of compulsory process for attendance of

unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of

premises, if view would be appropriate to the action; and all other practical problems that make

trial of a case easy, expeditious, and inexpensive.” Iragorri, 274 F.3d at 73–74 (quoting Gulf Oil

Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). The district court appropriately determined that the

private interest factors supported a forum non conveniens dismissal, because, inter alia,

documentary evidence is located in Germany, the ship’s owner and operator has its base of

operations in Germany, plaintiffs’ employment contracts were entered into in India, the crew

consisted of nineteen Indians, two Bangladeshis, and one Ukrainian, the plaintiffs’ injuries were

caused by Somali pirates, several of the hijacking parties are located in Ireland, and witnesses



       4
           Heidmar US, for its part, is likely not a proper party to the suit, as it is “only connected
to this litigation because a Heidmar affiliate was acting as [Marida Tankers’] general agent at the
relevant time.” J.A. 656.

                                                   7
and evidence are likely to be located all over the globe, and little, if any evidence or witnesses,

are likely to be found in the United States. As for public interest factors, such as congested

calendars of the Court, the “local interest in having localized controversies decided at home . . . .

[and the] appropriateness . . . in having the trial of a diversity case in a forum that is at home,” id.

at 74 (quoting Gulf Oil Corp., 330 U.S. at 509), the district court reasonably found that “this case

will place a heavy administrative burden on the court and present a difficult task for the jury

because the heart of the dispute is essentially foreign,” J.A. 659, “would involve ‘untangl[ing]

problems in conflicts of laws’ and making determinations about foreign law,” J.A. 660, and that

the United States “has no real interest in the subject matter of this dispute, which is a negligence

action brought by Indian plaintiffs against a German defendant, a Marshall Islands defendant,

and a U.S. defendant that additional discovery likely would reveal is not a proper party to this

action,” J.A. 659. Thus, the district court did not abuse its discretion in dismissing the complaint

against Marida Tankers and Heidmar US on grounds of forum non conveniens.

        We have considered all of the Plaintiffs-Appellants’ remaining arguments and find them

to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is

AFFIRMED.



                                            FOR THE COURT:
                                            CATHERINE O’HAGAN WOLFE, CLERK




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