12-1773-cv
Bernuth v. Brise

                           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 United States Courthouse, 40 Foley Square, in the City of New York, on the
4th day of February, two thousand thirteen.

Present:    RALPH K. WINTER,
            ROSEMARY S. POOLER,
            DENNY CHIN,
                        Circuit Judges.
____________________________________________________
IN THE MATTER OF THE COMPLAINT OF MS “ANGELN”
GMBH & CO. KG, AND ANGELN SHIPPING COMPANY LTD.,
AS OWNER AND BAREBOAT CHARTERER OF THE M/V ANGELN,
FOR EXONERATION FROM OR LIMITATION OF LIABILITY
____________________________________________________

CATLIN INSURANCE COMPANY (UK) LIMITED,

                              Third-Party Plaintiff,

                        -v-                                                12-1773-cv

BERNUTH LINES LTD.,

                              Third-Party Defendant-Fourth-Party Plaintiff-Appellant,
                        -v-

BRISE BEREEDERUNGS GMBH & CO. KG,

                        Fourth-Party Defendant-Appellee.
_____________________________________________________
Appearing for Appellant:       Peter J. Gutowski, Gina M. Venezia, Eric J. Matheson, Freehill
                               Hogan & Mahar LLP, New York, NY

Appearing for Appellee:        John D. Kimball, Kate B. Belmont, of counsel, Blank Rome LLP,
                               New York, NY

       Appeal from the United States District Court for the Southern District of New York
(Daniels, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.

        Fourth-party plaintiff-appellant Bernuth Lines Ltd. (“Bernuth”) appeals from the district
court’s June 28, 2012 judgment dismissing the claims against fourth-party defendant-appellee
Brise Bereederungs GmBH & Co. KG (“Brise”) for lack of personal jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(2). The district court had granted Brise’s motion to
dismiss in a March 28, 2012 order, due to appellant’s failure to allege Brise had the requisite
minimum contacts with the United States required under Rule 4(k)(2). A final judgment in favor
of Brise was entered at the direction of the district court, after it certified under Rule 54(b) that
there was no just reason to delay. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

        “We review a district court’s dismissal of an action for want of personal jurisdiction de
novo . . . .” See Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34 (2d Cir. 2010). “In
order to survive a motion to dismiss for lack of personal jurisdiction, [the] plaintiff must make a
prima facie showing that jurisdiction exists.” Id. at 34–35 (internal quotation marks omitted). In
this case, the relevant jurisdictional statute is Federal Rule of Civil Procedure 4(k)(2), which
provides for personal jurisdiction in a case (1) “aris[ing] under federal law,” (2) where a
defendant is not subject to the general jurisdiction of any one state, and (3) where “exercising
jurisdiction [would be] consistent with the United States Constitution and laws.” Fed. R. Civ. P.
4(k)(2). A suit relying on maritime law is a claim that “arises under federal law” for the
purposes of Rule 4(k)(2). Porina v. Marward Shipping Co. Ltd, 521 F.3d 122, 127 (2d Cir.
2008).

        To satisfy the third requirement, the plaintiff must show that the defendant has sufficient
contacts with the forum state to justify the court’s exercise of personal jurisdiction. See
International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Sufficient contacts may be
established under specific jurisdiction or under the “more stringent [general jurisdiction]
minimum contacts test.” Porina, 521 F.3d at 128 (quoting Metro. Life Ins. Co. v.
Robertson-Ceco Corp., 84 F.3d 560, 567-68 (2d Cir. 1996)). A court’s general jurisdiction over
a non-resident, is based on a defendant’s business contacts with the forum, and “permits a court
to exercise its power in a case where the subject matter of the suit is unrelated to those contacts,”
Metro. Life, 84 F.3d at 568, as long as the business contacts are “continuous and systematic”
enough to find that a defendant “purposefully avail[ed] itself of the privilege of conducting
activities within the forum.” Porina, 521 F.3d at 128 (quoting Hanson v. Denckla, 357 U.S. 235,
253 (1958) (emphasis added)). If the Court determines that a defendant lacks the requisite
minimum contacts for general jurisdiction, it need not consider the second prong of the due

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process test to determine whether the exercise of jurisdiction would be reasonable under the
particular circumstances of the case. Metro. Life, 84 F.3d at 568.

        Appellant Bernuth acknowledged it must satisfy the latter, more stringent test for
general jurisdiction but alleged it had satisfied that test by showing that Brise had continuous and
systematic general business contacts with the United States. The contacts included (1) serving as
an ISM safety manager of vessels; (2) making routine trips to the United States over the last
several years; (3) the fact that charter negotiations for M/V Angeln were conducted with the
involvement of a U.S.-based charter broker; and (4) purchasing goods and services in the United
States. Appellant’s Br. at 19-29.

        The district court correctly concluded that these factors do not demonstrate that Brise
“purposefully availed itself.” Dist. Ct. Op. at 9-10 (citing Porina, 521 F.3d at 128). Here, as in
Porina, the visits made to the United States ports by Brise-managed vessels were done at the
direction of the ship’s charterers. In Porina, this Court found “unilateral activities of third
parties -- [including] charterers -- cannot, in themselves satisfy the requirement of contact with
the forum.” Porina, 521 F.3d at 128. Similarly, as in Porina, much of Brise’s supposed sales
and purchases within the United States were made at the direction of the charterers, which
cannot establish jurisdiction. Regardless, these contacts also failed to be continuous and
systematic enough to amount to general jurisdiction. Additionally, Brise did not “purposefully
avail” itself of doing business in the United States by serving as ISM manager and ensuring
compliance with a U.S. safety code mandated by an international treaty, given that Brise could
perform this task without any of its vessels entering the United States.

         Plaintiff also argues that the district court erred in failing to allow additional
jurisdictional discovery. We do not agree. We review a district court’s denial of additional
jurisdictional discovery for abuse of discretion. First City, Texas–Houston, N.A. v. Rafidain
Bank, 150 F.3d 172, 175 (2d Cir. 1998). Declining to permit jurisdictional discovery is well
within a district court’s discretion if “the plaintiff ha[s] not made out a prima facie case for
jurisdiction.” Best Van Lines Inc. v. Walker, 490 F.3d 239, 255 (2d Cir. 2007). Since we agree
with the district court that there was no prima facie case for jurisdiction, we also find that the
district court did not err in declining to allow Bernuth to engage in jurisdictional discovery.

       Accordingly, the judgment of the district court hereby is AFFIRMED. Each side to bear
its own costs.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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