Patterson v. Blue Offshore BV et al
Filing
145
ORDER AND REASONS that Defendant FMC Kongsberg's "Re-Urged Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to Rule 12(b)(2)" is GRANTED. FURTHER ORDERED that Aker Subsea's "Motion to Dismiss" is GRANTED. Signed by Judge Nannette Jolivette Brown on 7/6/2015. (cms)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DANNY PATTERSON
CIVIL ACTION
VERSUS
CASE NO. 13-337
BLUE OFFSHORE BV, et al.
SECTION: “G”(3)
ORDER AND REASONS
This litigation arises from an accident that occurred at sea off the coast of Russia. Presently
pending before the Court are a “Re-Urged Motion [to] Dismiss for Lack of Personal Jurisdiction
Pursuant to Rule 12(b)(2)”1 filed by Defendant FMC Kongsberg Subsea AS (“FMC Kongsberg”)
and a “Motion to Dismiss”2 filed by Defendant Aker Subsea AS (“Aker Subsea”). Having reviewed
the motions, the memoranda in support, the memoranda in opposition, the record, and the applicable
law, the Court will grant the pending motions.
I. Background
A.
Factual Background3
In his complaint, Plaintiff Danny Patterson alleges that he injured his knee and leg on August
21, 2012 while working for Blue Offshore as a Jones Act Seaman on the vessel “M/V Simon
Stevin,” then located off the coast of the Russian Federation.4 Patterson, claiming negligence, alleges
that Defendants Blue Offshore BV, Aker Solutions, Inc. (“Aker Solutions”), and
1
Rec. Doc. 127.
2
FMC
Rec. Doc. 97.
3
The factual background of this case has been summarized in several of the Court’s prior Orders. This
summary is taken from the Court’s March 3, 2015 Order denying the “Motion for Summary Judgment” filed by
Defendant FMC Technologies, Inc. (Rec. Doc. 132).
4
Rec. Doc. 1 at p. 2; Rec. Doc. 20 at p. 1.
Technologies, Inc. (“FMCTI”) “jointly and severally” caused his injuries, which rendered him unfit
for duty.5 In an amended complaint, Patterson identifies FMC Eurasia, LLC (“FMC Eurasia”), FMC
Kongsberg Subsea AS (“FMC Kongsberg”), and Aker Subsea AS (“Aker Subsea”) as likewise
“indebted unto [him] for all damages to which he is entitled to receive[.]”6 Patterson alleges that
FMCTI, FMC Eurasia, FMC Kongsberg, Aker Solutions, and Aker Subsea served as contractors
charged with providing sub-sea umbilical equipment and/or technical supervision on the project
where he sustained his injuries while working for Blue Offshore, and that each defendant is liable
to him in connection with their performance of their role in the project.7 His allegations against each
party are as follows.
First, Patterson contends that FMCTI failed to: (1) “provide proper and safe umbilical
equipment for the job in question;” (2) “take steps to ensure that the contracted work was performed
in a safe and workmanlike manner;” (3) “take steps to remedy the improper and unsafe umbilical
equipment once it was known or should have been known to it through the exercise of reasonable
care;” and (4) “satisfy, and hence breach of [sic] the terms of its contract of which [he] was a third
party beneficiary.”8
Second, Patterson asserts that Aker Solutions failed to: (1) “provide proper and safe
umbilical equipment for the job in question;” (2) “take steps to remedy the improper and unsafe
umbilical equipment once it was known or should have been known to it through the exercise of
reasonable care;” (3) “satisfy, and hence breach of [sic] the terms of its contract of which [he] was
5
Rec. Doc. 1 at 2–3, 5.
6
Rec. Doc. 73 at pp. 1–2.
7
Rec. Doc. 1 at pp. 3–4; Rec. Doc. 73 at pp. 1–2.
8
Rec. Doc. 1 at p. 3.
2
a third party beneficiary.”9
Third, Patterson contends that Blue Offshore failed to “provide [him] with a safe place to
work and [committed] other violations of the Jones Act as will be shown at trial.”10 Fourth,
Patterson contends that FMC Eurasia and Aker Subsea “failed to properly provide . . . technical
supervision.”11
Fifth,
Patterson
asserts
that
FMC
Kongsberg
“failed
to
properly
provide . . . equipment” for the project.12
B.
Procedural Background13
Patterson filed the present lawsuit on February 22, 2013.14 On July 11, 2013, Patterson filed
a “First Supplemental and Amended Complaint,” adding allegations regarding his residence, the
location of the accident, and a jury demand.15 On May 13, 2014, Patterson filed a “First
Supplemental and Amending Complaint,” adding FMC Eurasia, FMC Kongsberg, and Aker Subsea
as defendants.16
On August 26, 2014, FMC Kongsberg filed a “Motion to Dismiss for Lack of Personal
9
Id. at pp. 3–4.
10
Id. at p. 4.
11
Rec. Doc. 73 at p. 2.
12
Id. The instant motions address only whether this Court has personal jurisdiction over FMC Kongsberg
and Aker Subsea.
13
Significant motion practice has occurred in this case, and has been comprehensively summarized in prior
Orders. See Rec. Doc. 132 at pp. 3–6. Here, the Court summarizes only the procedural history related to FMC
Kongsberg and Aker Subsea.
14
Rec. Doc. 1.
15
Rec. Doc. 20.
16
Rec. Doc. 73.
3
Jurisdiction Pursuant to Rule 12(b)(2).”17 On September 16, 2014, Aker Subsea filed a “Motion to
Dismiss.”18 On October 2, 2014, Patterson moved to continue the submission of Aker Subsea’s
“Motion to Dismiss” in order to allow Patterson to conduct jurisdictional discovery.19 The Court
granted that motion on October 3, 2014, re-setting the submission date of Aker Subsea’s “Motion
to Dismiss” to January 7, 2015.20 On November 10, 2014, the Court denied without prejudice FMC
Kongsberg’s “Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to Rule 12(b)(2),”
permitting the parties to conduct jurisdictional discovery and granting FMC Kongsberg leave to reurge its pending motion after January 12, 2015.21 On February 10, 2015, FMC Kongsberg re-urged
its “Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to Rule 12(b)(2).”22 On March 4,
2015, the Court heard oral argument on FMC Kongsberg’s re-urged “Motion to Dismiss for Lack
of Jurisdiction Pursuant to Rule 12(b)(2).”23
17
Rec. Doc. 90. Patterson filed an opposition to the motion on September 9, 2014. Rec. Doc. 91. On
September 15, 2014, with leave of Court, FMC Kongsberg filed a reply in further support of its motion. Rec. Doc.
95.
18
Rec. Doc. 97. Patterson filed an opposition to that motion on September 23, 2014. Rec. Doc. 99. On
December 30, 2014, Patterson filed a supplemental opposition to Aker Subsea’s motion. Rec. Doc. 122. On January
5, 2015, with leave of Court, Aker Subsea filed a reply in further support of its motion. Rec. Doc. 125. On March 11,
2015, with leave of Court, Patterson filed a second supplemental opposition to Aker Subsea’s motion. Rec. Doc.
139.
19
Rec. Doc. 100.
20
Rec. Doc. 101.
21
Rec. Doc. 106.
22
Rec. Doc. 127. Patterson filed an opposition to the motion on February 24, 2015. Rec. Doc. 129. On
March 3, 2015, with leave of Court, FMC Kongsberg filed a reply in further support of the motion. Rec. Doc. 134.
23
Rec. Doc. 135.
4
II. Parties’ Arguments
A.
FMC Kongsberg’s “Re-Urged Motion [to] Dismiss for Lack of Personal Jurisdiction
Pursuant to Rule 12(b)(2)”24
1.
Arguments in Support
In support of its motion, FMC Kongsberg argues that the Court should dismiss Patterson’s
claims against it for lack of personal jurisdiction, because Patterson “is unable to point to any facts
that establish that FMC Kongsberg has sufficient contacts with Louisiana or the United States
necessary to support this Court’s exercise of specific or general personal jurisdiction over it.”25
FMC Kongsberg contends that the Court lacks general jurisdiction over it, because FMC
Kongsberg: (1) is a Norwegian entity with its registered offices in Norway; (2) conducts “absolutely
no” business in the United States; (3) “has no offices in the United States;” (4) does not maintain
a registered agent for service of process here; (5) “has never been registered to do business in
Louisiana or the United States;” (6) “has no bank accounts in the United States;” (7) “has never filed
or paid taxes in the United States or in Louisiana;” (8) and “does not hold board meetings in the
United States and has no shareholders with registered business addresses in the United States.”26
Thus, FMC Kongsberg argues, it “does not have any type of significant, continuous, or systematic
contacts in the United States.”27
FMC Kongsberg further avers that it did not employ Patterson, did not own the vessel at
issue here, “did not enter into any contracts with the United States or obtain any products from the
24
Rec. Doc. 127.
25
Rec. Doc. 127-1 at p. 2.
26
Id. at pp. 3–4.
27
Id. at p. 4.
5
United States,” did not visit or contact any person in the United States in connection with the
Russian project where Patterson allegedly sustained his injuries, and conducted no other act or
omission in the United States in connection with the incident at issue here.28
a.
General Jurisdiction
FMC Kongsberg argues that even if Patterson “could show that FMC Kongsberg did engage
in some limited regular business within the United States,” any “conceivable contacts” it had “would
be insufficient to support this Court’s exercise of general jurisdiction over FMC Kongsberg.”29 In
support of this assertion, FMC Kongsberg points to statements made in a deposition by Tomas Bille,
its senior legal counsel, that: (1) FMC Kongsberg’s offices are located in Norway; (2) FMC
Kongsberg has never been sued in the United States; and (3) FMC Kongsberg has not, “arranged
for work visas to be obtained” for work in the United States on behalf of FMC Kongsberg.30 FMC
Kongsberg maintains that “under any interpretation of the facts and allegations, FMC Kongsberg
is ‘in no sense at home’ in Louisiana or the United States.”31 Therefore, FMC Kongsberg argues,
Patterson has “failed to establish a prima facie case” in support of general jurisdiction.32
28
Id.
29
Id.
30
Id. at pp. 8–9 (citing Rec. Doc. 127-2).
31
Id. FMC Kongsberg further indicates that Patterson “did not dispute that this Court lacked general
jurisdiction over FMC Kongsberg” in opposing its original motion to dismiss. Id. In opposition to FMC
Kongsberg’s original motion to dismiss, Patterson asserted that the motion was premature, and requested additional
time to conduct jurisdictional discovery. See Rec. Doc. 91. The Court, in turn, denied the motion without prejudice
and granted Patterson and FMC Kongsberg up to sixty days to conduct jurisdictional discovery. See Rec. Doc. 106 at
p. 10. It is not clear to the Court how Patterson’s opposition to the original motion is relevant to the instant re-urged
motion.
32
Rec. Doc. 127-1 at p. 9.
6
b.
Specific Jurisdiction
FMC Kongsberg further maintains that this Court lacks specific jurisdiction over it, because
“there is no claimed relationship between the alleged acts and/or omissions of FMC Kongsberg set
forth in plaintiff’s Complaint and the State of Louisiana or the United States.”33 Rather, FMC
Kongsberg argues, the events at issue here “occurred wholly outside the United States and in the
territorial waters of a foreign country,” and Patterson cannot allege or show that “any contract under
which FMC Kongsbeg was providing equipment” onboard the vessel involved here “was negotiated,
delivered, entered into, executed, or performed in Louisiana or the United States,” nor any other
contractual relationship between Patterson and FMC Kongsberg “related to his cause of action.”34
Thus, FMC Kongsberg contends, Patterson has failed to allege the “purposeful availment” required
to establish specific jurisdiction.35
In support of these assertions, FMC Kongsberg points to statements made in Bille’s
deposition regarding the contractual structure under which FMC Kongsberg provided equipment for
the project at issue here.36 According to FMC Kongsberg, these statements, along with an affidavit
previously submitted by FMC Kongsberg,37 show that Patterson’s claim against it “relates only to
alleged acts or omissions that occurred in a foreign country.”38 Further, FMC Kongsberg argues,
there is “no factual nexus” between Patterson’s tort claims and “any activities alleged to have [been]
33
Id. at p. 10.
34
Id.
35
Id.
36
Id. at pp. 10–11 (citing Rec. Doc. 127-2).
37
Rec. Doc. 59-5.
38
Id. at p. 11.
7
conducted by FMC Kongsberg in Louisiana or the United States,” depriving the Court of any basis
to exercise specific jurisdiction.39 Additionally, FMC Kongsberg notes that Bille stated in his
deposition that FMC Kongsberg “does not employ any US citizens in the United States,” and that
“as to the Russian project, which is the subject matter of this litigation, there were no secondment
agreements in place for any FMC Kongsberg employees.”40
c.
Results of Jurisdictional Discovery
Finally FMC Kongsberg contends that although Mike Turner of FMCTI stated in a
deposition that there were “14 secondment agreements in effect” between March 2012 and February
2013, these employees “worked and lived in Houston, Texas, not Louisiana;” and FMCTI was not
involved in work with the Russian gas company at issue here.41 In light of these statements, and in
light of Bille’s statements, discussed above, FMC Kongsberg argues that Patterson cannot meet his
burden of showing that FMC Kongsberg purposefully availed itself of Louisiana law, or that FMC
Kongsberg has “continuous and systematic contacts” with Louisiana.42 Indeed, FMC Kongsberg
contends, Patterson “has failed to present evidence of any contacts between FMC Kongsberg and
Louisiana,” rendering the exercise of general jurisdiction inappropriate.43 Further, FMC Kongsberg
asserts, Patterson cannot make the requisite showing in support of specific jurisdiction, because
FMC Kongsberg has presented evidence that (1) “nothing it did” related to the project at issue here
“occurred in the State of Louisiana,” and that (2) none of the seconded FMC Kongsberg employees
39
Id. at pp. 11–12.
40
Id. at p. 12.
41
Id. at p. 13 (citing Rec. Doc. 127-5).
42
Id. at p. 14.
43
Id.
8
“worked in Louisiana . . . worked on the Russian project in question . . . [or] worked with FMC
Kongsberg’s ultimate customer in Russia.”44
Patterson’s Opposition45
2.
In opposition to FMC Kongsberg’s motion, Patterson contends that this Court may exercise
general jurisdiction over FMC Kongsberg, for several reasons.46 First, Patterson argues, FMC
Kongsberg seconded 17 employees to Texas between 2009 to 2012.47 According to Patterson, FMC
Kongsberg maintained an “employment relationship” with these seconded employees.48
Patterson argues that the depositions of Bille and Turner provide “further indications of the
ongoing continuous contacts that FMC Kongsberg has with the United States.”49 According to
Patterson, Bille stated that he “frequently” traveled to Texas to attend meetings with the “global
legal team.”50 Patterson asserts that Bille also stated that the FMC “subsea” entities all perform
“essentially the same type of work,” subsea work, distinguishing the present case from a situation
in which a large multinational corporation “has different product lines manufactured from entirely
44
Id.
45
Rec. Doc. 129.
46
Id. at p. 3.
47
Id. pp. 3–4.
48
Id. at pp. 4–7. Specifically, Patterson avers that FMC Kongsberg’s secondment agreements: (1) provide
that seconded employees retain certain benefits; (2) forbid seconded employees from violating its code of conduct or
engaging in activities that may “conflict” with their service to FMC Kongsberg; (3) reserve to FMC Kongsberg the
right to reassign seconded employees during their term of secondment; (4) are governed by “home country” law,
rather than “host country” law; (5) keep all employees on the “home country” payroll; and (6) hold FMC Kongsberg
and secondment candidates “mutual [sic] responsible” for initiating the required visa or work permit application
process. Id.
49
Id. at p. 7.
50
Id. at pp. 7–8.
9
separate and distinct entities across the globe,”51 or from a scenario in which “individuals from
Norway are being temporarily trained in the United States on specialized technology that is
controlled out of Houston.”52 Patterson further indicates that Turner stated in his deposition that he
had been seconded from FMCTI to FMC Kongsberg from 2010 to 2014, and “made clear” at that
time that FMCTI also seconds employees from its office in Houston to FMC Kongsberg.53
Patterson contends that although “case law has rejected the theory of general jurisdiction
based upon a few employees working in a state,”54 the present case is different, because FMC
Kongsberg maintains a “specific ‘system’” of secondment agreements.55Additionally, Patterson
argues, it is “uncontested that [FMC] Kongsberg anticipates” making further secondments “on an
ongoing . . . basis” in the future.56 Patterson further maintains that the number of FMC Kongsberg
employees stationed in the United States distinguishes the present case from others.57 For the
foregoing reasons, Patterson contends, “FMC Kongsberg is all but operating out of Houston.”58
Patterson argues that although this issue may be a novel one, the requisite “continuous and
systematic connections” with the United States are present here, because FMC Kongsberg’s practice
of forming secondment agreements “clearly evidences” its “intention . . . to move its employees
51
Id. at p. 8.
52
Id. at p. 9 (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984)).
53
Id. at p. 8.
54
Id. at pp. 8–9 (citing Ratliff v. Cooper Labs, Inc., 444 F.2d 745, 746–48 (4th Cir. 1971)).
55
Id. at p. 9.
56
Id.
57
Id.
58
Id.
10
back and forth” between Norway and the United States, and sets this case apart from those involving
the “potentially fortuitous occurrence of a few workers in a jurisdiction.”59
3.
FMC Kongsberg’s Reply60
In further support of the instant motion, FMC Kongsberg argues that Patterson has failed to
demonstrate that it has “any contacts with the State of Louisiana, much less the . . . continuous and
systematic contacts necessary to support the exercise of general jurisdiction.”61 FMC Kongsberg also
contends that Patterson asserts a broader interpretation of Federal Rule of Civil Procedure 4(k)(2)
“than this Court has accepted,” by arguing that this Court may exercise personal jurisdiction over
it based solely on its ties to the United States a whole.62 According to FMC Kongsberg, personal
jurisdiction is only appropriate under Rule 4(k)(2) if a defendant has the requisite minimum contacts
with the forum state.63 Here, FMC Kongsberg maintains, these contacts are lacking.64
In the alternative, FMC Kongsberg argues that even if personal jurisdiction could be founded
upon a defendant’s contacts with the United States, the secondment agreements at issue here do not
support the exercise of general jurisdiction.65 According to FMC Kongsberg, Patterson’s claim that
the entity is “all but operating out of Houston” is overstated, because FMC Kongsberg employs over
4600 people in Norway, but has only entered into secondment agreements with 14 of its
59
Id. at p. 10 n. 10.
60
Rec. Doc. 134.
61
Id. at p. 2.
62
Id. at pp. 3–4.
63
Id. at p. 3.
64
Id. at pp. 3–4.
65
Id. at p. 4.
11
employees.66 FMC Kongsberg further argues that Patterson fails to acknowledge provisions in the
secondment agreements and statements in Bille’s and Turner’s depositions “that demonstrate that
the costs associated with payroll and expenses” of the seconded employees “were paid by
[FMCTI].”67 The secondment agreements, FMC Kongsberg contends, also state that FMCTI was
responsible for seconded employees’ schedules, work assignments, and supervision.68
FMC Kongsberg asserts that no legal authority supports the exercise of general jurisdiction
because: (1) “an employee of a foreign corporation travels to the United States;” or because (2) a
“foreign company divides its product [or] services” in a certain way, or because (3) FMC Kongsberg
“has established a policy or procedure for orderly secondment of employees to work on other
projects where they may be needed.”69 Additionally, FMC Kongsberg maintains, “no case has held
[that] a foreign corporation is subject to general jurisdiction in Louisiana because there is an affiliate
company located in Houston.”70 Finally, FMC Kongsberg contends that although the secondment
agreements at issue here are “possibly sufficient to constitute a presence in Houston,” that presence
is “minimal,” “sporadic” at best, “and of small consequence,” and does not rise to the level of
“continuous contacts necessary for the exercise of general jurisdiction.”71 Thus, FMC Kongsberg
argues, “this Court has no authority to assume jurisdiction over FMC Kongsberg,” even under
66
Id. at pp. 4–5.
67
Id. at p. 5.
68
Id.
69
Id. at pp. 5–6.
70
Id.
71
Id. at p. 6.
12
Patterson’s “expanded interpretation” of Rule 4(k)(2).72
B.
Aker Subsea’s “Motion to Dismiss”73
1.
Arguments in Support
In support of its motion to dismiss, Aker Subsea maintains that “the actions giving rise to
this lawsuit . . . did not occur in the state of Louisiana or the United States,” preventing the Court
from exercising specific jurisdiction over it.74 Aker Subsea further argues that it “does not have
systematic and continuous contacts with the Eastern District of Louisiana,” and is therefore not
subject to general jurisdiction in this forum.75
a.
Specific Jurisdiction
Aker Subsea first contends that this Court lacks specific jurisdiction over it, because its
“alleged involvement in the events giving rise to the accident” at issue here “have no connection to
this jurisdiction.”76 Specifically, Aker Subsea argues that the accident giving rise to this lawsuit
occurred in the territorial waters of a foreign country, and any alleged failure on its part to properly
provide technical supervision of the project did not take place in Louisiana or have “any connection
to Louisiana.”77 Further, Aker Subsea asserts, the events giving rise to this litigation “did not arise
from a contact between Aker Subsea and this forum,” because Aker Subsea lacks “any contacts”
72
Id.
73
Rec. Doc. 97.
74
Rec. Doc. 97-1 at p. 1.
75
Id.
76
Id. at p. 7.
77
Id.
13
with Louisiana.78 Additionally, Aker Subsea avers, Patterson has “not shown that any contract
entered into by Aker Subsea was negotiated, delivered, executed, or performed” in Louisiana.79
Thus, Aker Subsea contends, it lacks the requisite “minimum contacts” with Louisiana, and has not
invoked the protections and benefits of Louisiana, such that “it should reasonably anticipate being
haled into court” here.80 Finally, Aker Subsea argues that “it would be easy to demonstrate that the
exercise of personal jurisdiction over Aker Subsea would be unfair.”81
b.
General Jurisdiction
Aker Subsea next argues that Patterson’s allegation that it “does business in the jurisdiction”
is “vague and overgeneralized,” and should be rejected as a basis for general jurisdiction.82
According to Aker Subsea, it:
[1] [D]oes not maintain an agent for receipt of service of process in Louisiana . . . [2]
does not have any directors, officers, agents, or representatives located in Louisiana
. . . [3] does not have any facilities or offices in Louisiana . . . [4] owns no property
in Louisiana . . . [5] does not have any bank accounts in the United States or
Louisiana . . . [6] has not filed a tax return in Louisiana nor has it paid Louisiana
state taxes . . . [7] has never held any board meetings in the state of Louisiana . . . [8]
does not have any shareholders with registered addresses in the state of Louisiana
. . . [9] has never entered into any contracts, service agreements, purchase orders or
any other agreements for the purpose of selling, promoting, advertising, or supplying
any product or service within the state of Louisiana . . . [10] does not send
representatives to the state of Louisiana for the service or repair of its products . . .
[11] does not share employees with any Aker affiliated companies in the state of
Louisiana . . . [12] has never consented to personal jurisdiction in Louisiana . . . [and
] [13] does not sell products in Louisiana and has never sold products over the
78
Id. at pp. 7–8.
79
Id. at p. 8.
80
Id.
81
Id.
82
Id. at p. 9.
14
internet to customers in the state of Louisiana.83
Therefore, Aker Subsea maintains, it lacks continuous and systematic contacts with Louisiana.84Aker
Subsea further argues that its contacts with Louisiana “fall far short of purposeful availment,”85 and
the exercise of personal jurisdiction over it “would offend the traditional notions of fair play and
substantial justice.86 Further, Aker Subsea contends, Patterson’s “unsubstantiated and conclusory
allegation that Aker Subsea does business within this jurisdiction” is “refuted by the evidence,” and
Patterson has failed to carry his burden of establishing that this court may properly exercise personal
jurisdiction over it.87
Patterson’s Opposition88
2.
In opposition, Patterson requests additional time for discovery.89 Patterson also contends that
although Aker Subsea contests personal jurisdiction based on its contacts with Louisiana, Federal
Rule of Civil Procedure 4(k)(2) may support the exercise of personal jurisdiction based upon its
contacts with the United States as a whole.90 Patterson avers that Aker Subsea’s participation in
“secondment agreements,” in which employees are sent to work in the United States or perform
83
Id. at pp. 9–10 (citing Rec. Doc. 97-2 at pp. 1–3).
84
Id. at p. 10.
85
Id.
86
Id.
87
Id.
88
Rec. Doc. 99.
89
Id. at p. 1. Patterson filed an ex parte motion to continue submission of the instant motion in order to
allow jurisdictional discovery to be conducted. Rec. Doc. 100. In that motion, he represented that counsel for Aker
Subsea “agreed to allow [him] 90 days” to conduct jurisdictional discovery. Rec. Doc. 100-1 at p. 1. The Court
continued hearing on the motion to January 7, 2015. Rec. Doc. 101.
90
Rec. Doc. 99 at pp. 1–2.
15
work on behalf of a United States entity, “may provide a basis for jurisdiction.”91
Patterson’s Supplemental Opposition92
3.
In further opposition to Aker Subsea’s motion,93 Patterson avers that “additional discovery
and information is needed before the issue of personal jurisdiction can be determined.”94 Patterson
contends that jurisdictional discovery “produced a single [s]econdment [a]greement in response to
a request for complete copies of all [s]econdment [a]greements between any and all Aker Subsea
AS employees and any other party for a six year period.”95 According to Patterson, Mr. Even
Funnemark, an Aker Subsea employee responsible for approving secondment agreements, stated in
a deposition that the secondment agreement initially produced “was not a single isolated agreement,”
and that Aker Subsea “regularly sent its employees to the United States to work under [s]econdment
[a]greements,” which is not disputed by Aker Subsea.96
Patterson contends that employees sent to work in the United States in this manner “retained
their employment status” with Aker Subsea while working in the United States.97 Thus, Patterson
contends, he anticipates that “multiple other Secondment Agreements are forthcoming.”98 Patterson
91
Id. at p. 2.
92
Rec. Doc. 122.
93
Patterson filed this opposition on December 30, 2014, slightly less than three months after the Court
continued hearing of the instant motion on October 3, 2014.
94
Rec. Doc. 122 at p. 1.
95
Id. at p. 2.
96
Id. (citing Rec. Doc. 122-1 at p. 5).
97
Id.
98
Id.
16
further avers that he wants to depose individuals employed in the Houston office of an “Aker entity,”
because Funnemark mentioned that these individuals were involved in the secondment agreements.99
Patterson argues that Funnemark’s testimony regarding “the expansiveness of the [s]econdment
[a]greements” and the agreement produced by Aker Subsea “should constitute a prima facie showing
that Aker Subsea AS is subject to personal jurisdiction in the United States,” because employees sent
to work in the United States “remain Aker Subsea AS employees,” indicating Aker Subsea’s
“purposeful,” “systematic,” and non-fortuitous contacts with the United States.100
Alternatively, Patterson contends, the instant motion should be denied as premature pending
further discovery into the nature of Aker Subsea’s secondment agreements.101 On this point,
Patterson points to a case in which a district court in this district denied a Rule 12(b)(2) motion as
premature, pending discovery related to a company’s involvement in the activities of its subsidiaries
and “other factual questions relevant to the personal jurisdiction issues in that case.”102 However,
Patterson argues, no other federal cases exist addressing whether “multiple secondment agreements
may establish personal jurisdiction.”103 Thus, Patterson contends, “[a]s this appears to be an issue
of first impression,” further discovery should be permitted if the requisite prima facie showing has
not been made.104
99
Id. at p. 3.
100
Id. at pp. 3–4.
101
Id. at p. 4.
102
Id. (citing Lotherington v. Sedgwick Group, PLC, No. 96-2316, 1996 WL 655797 (E.D. La. Nov. 7.
1996) (McNamara, J.)).
103
Id.
104
Id.
17
Aker Subsea’s Reply105
4.
a.
General Jurisdiction
In further support of its motion, Aker Subsea contends that its secondment agreements create
“few and tenuous connections with the United States,” and “no contact with the State of Louisiana
or the Eastern District of Louisiana.”106 Aker contends that it is “undisputed that no specific
jurisdiction exists arising from the facts of this case,” and that its reply is therefore “limited to
general personal jurisdiction arguments.”107 According to Aker Subsea, Patterson “has no evidence
of any kind that [it] has contacts with this forum,” warranting dismissal of Patterson’s claims against
it.108
Aker Subsea argues that it has sent only eleven employees to the Houston, Texas office of
Aker Solutions between 2011 and 2014, “which is insufficient to maintain personal jurisdiction.”109
According to Aker Subsea, it sent seconded employees to its United States affiliate, Aker Solutions,
and maintained the employee’s benefits, while the host company “would ultimately absorb any costs
of the secondment and be responsible for the day to day direction and control of the employee,” as
well as the employee’s local costs.110 Therefore, Aker Subsea argues, its “only participation in the
secondment arrangement is to maintain, in Norway, the seconded employee’s benefits.”111 Aker
105
Rec. Doc. 125.
106
Id. at pp. 1–2.
107
Id. at p. 2.
108
Id.
109
Id.
110
Id. at pp. 2–3.
111
Id. at p. 3.
18
Subsea contends that its secondments are merely “attenuated and sporadic” contacts, and that it has
not “availed itself of the privilege of undertaking activities in the United States” or the “benefits
thereof” by “maintain[ing] benefits” in Norway for seconded employees.112 According to Aker,
“[t]here is no legal basis or precedent for exercising general jurisdiction over a foreign corporation
due to the mere existence of a secondment agreement” such as those at issue here.113
Aker Subsea further maintains that the act of seconding employees to Texas “should not give
rise to the expectation that [it] should get haled into court in Louisiana for an incident occurring off
the coast of Russia for which the seconded employees played no role.”114 According to Aker Subsea,
it has not sought the benefit of any Louisiana law, because it “conducted no activities in
Louisiana.”115 Indeed, Aker Subsea argues, Mr. Funnemark “confirmed that no Aker Subsea
employees were sent to any location other than Houston, Texas.”116 Therefore, Aker Subsea argues,
although it denies having sufficient contacts with the United States to warrant the exercise of
personal jurisdiction in any court, federal jurisdiction is “possibly” proper, if at all, only in Texas.117
b.
Jurisdictional Discovery
Aker Subsea also argues that additional discovery is not necessary, because it has produced
to Patterson all eleven secondment agreements formed between January 1, 2011 and January 1,
112
Id.
113
Id.
114
Id. at p. 4.
115
Id.
116
Id. (citing Rec. Doc. 125-4 at p. 31).
117
Id. at p. 5.
19
2014, and arranged for the deposition of Mr. Funnemark during the discovery period.118
Patterson’s Second Supplemental Opposition119
5.
In further opposition to the instant motion, Patterson notes that the jurisdictional questions
at issue here are “identical” to those at issue in FMC Kongsberg’s “Re-Urged Motion to Dismiss for
Lack of Personal Jurisdiction Pursuant to Rule 12(b)(2).”120 Patterson further represents that he
received additional secondment agreements from Aker Subsea on January 2, 2015, after deposing
a “representative” of Aker, and that he now seeks to add these agreements to the record.121 Patterson
argues that he has now made the requisite prima facie showing of jurisdiction, and further maintains
that Aker Subsea “cannot systematically and continuously send its foreign workers into the United
States to work for years at a time and yet claim lack of jurisdiction in this matter.”122 According to
Patterson, the exercise of jurisdiction here, premised upon Aker Subsea’s contacts with the United
States as a whole, “does not offend the notions of fair play and due process.”123
III. Law and Analysis
A.
Legal Standard
FMC Kongsberg and Aker Subsea urge the Court to dismiss Patterson’s claims against them
for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). When
118
Id. Finally, Aker Subsea contends that Patterson’s cited case on this point, Lotherington v. Sedgwick
Group, PLC is inapposite, because that case addressed a question of whether a parent company’s subsidiary was an
alter ego of the parent company, which is not at issue here. Id. at p. 6 (citing No. 96-2316, 1996 WL 655797 (E.D.
La. Nov. 7, 1996) (McNamara, J.)).
119
Rec. Doc. 139.
120
Id. at p. 1 (citing Rec. Doc. 129, Patterson’s opposition to Rec. Doc. 127).
121
Id. at pp. 1–2.
122
Id. at p. 2.
123
Id.
20
opposing a motion to dismiss pursuant to Rule 12(b)(2), “[t]he plaintiff bears the burden of
establishing jurisdiction, but need only present prima facie evidence.”124 In deciding the motion, the
Court may consider “affidavits, interrogatories, depositions, oral testimony, or any combination of
the recognized methods of discovery.”125 In this inquiry, the Court accepts as true the plaintiff’s
uncontroverted allegations, and resolves in the plaintiff’s favor “all conflicts between the facts
contained in the parties’ affidavits and other documentation.”126
Here, Patterson contends that this Court may properly exercise personal jurisdiction over
both FMC Kongsberg and Aker Subsea pursuant to Federal Rule of Civil Procedure 4(k)(2). That
rule provides:
(2)
Federal Claim Outside State-Court Jurisdiction. For a claim that arises under
federal law, serving a summons or filing a waiver of service establishes
personal jurisdiction over a defendant if:
(A)
the defendant is not subject to jurisdiction in any state's courts of
general jurisdiction; and
(B)
exercising jurisdiction is consistent with the United States
Constitution and laws.
As this Court has previously noted,127 jurisdiction pursuant to Rule 4(k)(2) is proper where:
(1) the claims against the defendant arise under federal law; (2) the defendant “does not concede to
jurisdiction in another state;” and (3) “the defendant has sufficient ties to the United States as a
124
Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002) (citations omitted).
125
Id.
126
Id.
127
Rec. Doc. 98 at p. 17.
21
whole to satisfy due process concerns.”128
The sole issue in dispute here concerns the third prong of the Rule 4(k)(2) analysis: whether
FMC Kongsberg and Aker Subsea have sufficient ties to the United States to satisfy due process.
On this point, Fifth Circuit precedent instructs that Federal Rule of Civil Procedure 4(k)(2) “draws
its authority directly from federal law,” and the due process to which parties are entitled under the
Rule “is measured with reference to the Fifth Amendment, rather than the Fourteenth
Amendment.”129 Therefore, when applying Rule 4(k)(2), the Fifth Circuit has regularly adhered to
the same legal standards developed in the Fourteenth Amendment context—the “now-familiar
minimum contacts analysis”130—but with one significant distinction, noted in a prior Order in this
case.131 Namely, where Rule 4(k)(2), and thus Fifth Amendment due process, is at issue, the Fifth
Circuit looks to the sufficiency of a party’s ties with the United States as a whole, rather than to the
128
Adams v. Unione Mediterranea di Sicurta, 364 F.3d 646, 651 (5th Cir. 2004). See also World Tanker
Carriers Corp. v. MV Ya Mawlaya, 99 F.3d 717, 721 (5th Cir.1996) (holding that Federal Rule of Civil Procedure
4(k)(2) permits courts to exercise jurisdiction in cases where a defendant has “insufficient contacts with any single
state” to support jurisdiction under state long-arm statutes, but has “sufficient contacts with the United States as a
whole to satisfy due process concerns.”).
129
Submersible Systems, Inc. v. Perforadora Central, S.A. de C.V., 249 F.3d 413, 420 (5th Cir. 2001). See
also Rec. Doc. 98 at p. 17.
130
Quick Technologies, Inc. v. Sage Group PLC, 313 F.3d 338, 344 (5th Cir.2002) (finding contacts
insufficient to support specific jurisdiction). See, e.g., Adams, 364 F.3d at 651 (finding “continuous and systematic”
contacts); Submersible Systems, 249 F.3d at 420 (finding a lack of “continuous and systematic” contacts); System
Pipe & Supply, Inc. v. M/V Viktor Kurnatovskiy, 242 F.3d 322, 325 (5th Cir.2001) (noting that alleged contacts, if
proven, would support general jurisdiction); World Tanker Carriers, 99 F.3d at 723 (noting that the minimum
contacts analysis applies). See also Nabulsi v. Bin Zayed al Nahyan, 383 Fed. App'x 380 (5th Cir.2010) (affirming
dismissal predicated, in part, upon lack of general jurisdiction pursuant to Rule 4(k)(2)); De Leon v. Shih Wei Nav.
Co., Ltd., 269 Fed. App'x 487, 489–90 (5th Cir.2008) (finding insufficient contacts to support general jurisdiction);
Stutzman v. Rainbow Yacht Adventures Ltd., 265 Fed. App'x 402, 403-4 (5th Cir. 2008) (reaching the same
conclusion, and finding plaintiff’s assertion of error based upon the district court’s reliance on specific jurisdiction
“unavailing,” because the general jurisdiction analysis is “more demanding” than the specific jurisdiction analysis);
R & B Falcon Drilling (Intern. & Deepwater), Inc. v. Noble Denton Group, 91 Fed. App'x 317, 321 (5th Cir.2004)
(finding insufficient contacts to support personal jurisdiction pursuant to Rule 4(k)(2)).
131
See Rec Doc. 98 at pp. 19–20.
22
sufficiency of its ties with any individual state, in order to determine whether the requisite showing
of minimum contacts has been made.132 The parties dispute whether Rule 4(k)(2) requires contacts
with a specific state, but the Court’s prior order addressing this point acknowledged—and
applied—binding Fifth Circuit authority holding that the applicable inquiry looks to a defendant’s
contacts with the United States as a whole, rather than with any state.133
Under this framework, the Court may exercise personal jurisdiction over a nonresident
defendant when: (1) the defendant has purposefully availed himself of the benefits and protections
of the forum (here, the United States); and (2) the exercise of jurisdiction over the defendant does
not offend “traditional notions of fair play and substantial justice.”134 Minimum contacts may be
established “either through contacts sufficient to assert specific jurisdiction, or contacts sufficient
to assert general jurisdiction.”135
B.
Analysis
1.
Personal Jurisdiction
Although FMC Kongsberg’s initial motion papers addressed both specific and general
jurisdiction, Patterson subsequently conceded that he cannot make a showing of specific jurisdiction
132
See, e.g., Submersible Systems, 249 F.3d at 420 (“The due process required in federal cases governed by
Rule 4(k)(2) is measured with reference to the Fifth Amendment, rather than the Fourteenth Amendment. That is,
Rule 4(k)(2) requires us to consider Central's contacts with the United States as a whole, and not just Central's
contacts with the state of Mississippi.”).
133
Rec. Doc. 98 at pp. 16–20 (setting forth the applicable standards); Id. at p. 34 (“Patterson has met his
burden of making a prima facie showing that his claims arise from Blue Offshore’s alleged contacts with the United
States.”).
134
Central Freight Lines v. APA Transport Corp., 322 F.3d 376, 381 (5th Cir. 2003) (internal citations and
quotation marks omitted).
135
Id. (citations omitted).
23
as to FMC Kongsberg.136 Therefore, as far as FMC Kongsberg is concerned, only general
jurisdiction remains disputed here.
Aker Subsea’s original motion also addressed both specific and general jurisdiction.137 In
opposition to that motion, Patterson argues that the issues in dispute on this motion are “identical”
to those in dispute on the “Re-Urged Motion to Dismiss Pursuant to Rule 12(b)(2),”138 filed by
Defendant FMC Kongsberg, and on this basis “refers” the Court to his briefing on that motion.139
In that briefing, as just noted, Patterson represents that he asserts“general jurisdiction as opposed
to specific jurisdiction” against FMC Kongsberg.140 Likewise, Patterson contends as to Aker Subsea
that personal jurisdiction is appropriate due to Aker Subsea’s “continuous and systematic process”
of sending employees to work in the United States pursuant to secondment agreements.141 Thus, it
appears that Patterson invokes only general jurisdiction against Aker Subsea. Nonetheless, Patterson
has not expressly represented that he invokes only general jurisdiction. Accordingly, the Court will
address both specific and general jurisdiction over Aker Subsea.
a.
General Jurisdiction
General jurisdiction is appropriate when an entity’s ties to the forum are “so continuous and
136
See Rec. Doc. 129 at p. 3 n.3 (“In this matter, as against FMC Kongsberg, Patterson is asserting general
jurisdiction as opposed to specific jurisdiction. It does not appear [that] any actions relating specifically to the
Russian project took place in the United States, thus the basis for jurisdiction is general as against FMC Kongsberg,
and the facts support such.”).
137
Rec. Doc. 97-1 at pp. 6–10.
138
Rec. Doc. 127.
139
Rec. Doc. 139 at p. 1 (citing Rec. Doc. 129).
140
Rec. Doc. 129 at p. 3.
141
Rec. Doc. 139 at p. 2; Rec. Doc. 129 at p. 9.
24
systematic” that the entity is rendered “essentially at home” in the forum.142 In this inquiry, the
defendant’s contacts must be considered “in toto,” rather than in isolation.143 If the requisite showing
of general jurisdiction has been made, this Court may exercise jurisdiction over “any action brought
against the defendant,”144 even if the action does not arise out of the defendant’s forum-related
contacts.145
Where general jurisdiction is invoked, the Court’s inquiry is “broader and more demanding”
than the specific jurisdiction inquiry,146 and the Supreme Court has found a sufficient basis for
general jurisdiction in only one case decided since the advent of modern personal jurisdiction
doctrine.147 In that case, Perkins v. Benguet Consol. Mining Co., the Supreme Court held that the
defendant, a Philippine corporation, could be held subject to personal jurisdiction in Ohio based
upon its extensive business activities in Ohio during World War II.148 Specifically, an individual
identified as the defendant’s president, general manager, and principal stockholder: (1) maintained
an office in Ohio; (2) kept the company’s office files in Ohio; (3) conducted correspondence from
Ohio regarding the company’s business and employees; (4) paid himself and two secretaries in Ohio;
(5) maintained active company bank accounts in Ohio; (6) used an Ohio bank as a transfer agent for
142
143
Daimler AG v. Bauman, 134 S.Ct. 746, 755 (2014) (citations omitted).
Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 780 (5th Cir. 1996).
144
Jackson v. Tanfoglio Giuseppe, S.R.L., 615 F.3d 579, 584 (5th Cir. 2010) (citations omitted).
145
Daimler, 134 S.Ct. at 754 (citations omitted).
146
Gardemal v. Westin Hotel Co., 186 F.3d 588, 595 (5th Cir. 1999) (citations omitted).
147
See Pervasive Software, Inc. v. Lexware GmbH & Co. KG, 688 F.3d 214, 230 (2012) (making this
observation).
148
342 U.S. 437, 447–48 (1952).
25
company stock; (7) held several directors’ meetings in Ohio; (8) managed company policies
regarding the rehabilitation of the company’s Philippine properties from Ohio; and (9) transferred
funds from Ohio to pay for projects in the Philippines.149
Citing Perkins as an exemplary case of general jurisdiction, the Supreme Court has
emphasized that a defendant’s forum-related contacts must cross a high threshold to warrant the
exercise of general jurisdiction.150 Thus, in Helicopteros Nacionales de Colombia, S.A. v. Hall, the
Supreme Court concluded that the defendant could not be held subject to general jurisdiction in
Texas on the basis that it: (1) sent its Chief Executive Officer to Texas for a contract-negotiation
session; (2) accepted checks drawn on a Texas bank; (3) purchased helicopters, equipment, and
training from a Texas corporation; and (4) sent personnel to Texas for training.151
The Fifth Circuit has “consistently imposed the high standard set by the Supreme Court when
ruling on general jurisdiction issues.”152 In Johnston v. Multidata Systems Intern. Corp., for example,
the Fifth Circuit found that general jurisdiction could not be sustained as to three defendants.153 The
first defendant sold goods and related service contracts to ten customers in the forum and advertised
in trade journals reaching the forum, while its employees “periodically” attended trade shows
there.154 The second defendant purchased goods from the forum, entered into a contract with a
149
Id.
150
See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414–19 (1984).
151
Id.
152
Johnston v. Multidata Sys. Intern. Corp., 523 F.3d 602, 611 (5th Cir. 2008).
153
523 F.3d at 610–615.
154
Id. at 611.
26
corporation in the forum, employed two residents of the forum.155 Additionally, a former director
of the second defendant lived in the forum.156
The third defendant in Johnston had more extensive contacts with the forum. Specifically,
it sold products and services to forum customers, was engaged in clinical trial work involving
forum-law contracts (including work on behalf of forum companies), and coordinated work carried
out by individuals in the forum.157 This defendant also sent employees to the forum to service
equipment, allegedly employed a permanent resident of the forum, and maintained a license to
perform certain services in Texas.158 Although the total amount of money involved in the third
defendant’s clinical trial work was unclear, the Fifth Circuit noted that it received “less than one
percent of its testing revenue from Texas customers,” and emphasized that “less than ten percent of
its contracts with independent testing facilities are with doctors located in Texas.” Its sales of goods
to the forum, on the other hand, accounted for between 0.5% and 2.5% of its global sales during the
time period considered.159 Nonetheless, the Fifth Circuit held, these contacts, although “more
substantial” than the other two defendants’ contacts, “fail[ed] to create general jurisdiction.”160
Along similar lines, in Central Freight Lines Inc. v. APA Transport Corp., the Fifth Circuit
held that general jurisdiction could not be sustained where the defendant “had federal operating
authority” in the forum, routinely arranged shipments to and from the forum, regularly sent
155
Id.
156
Id.
157
Id. at 613.
158
Id.
159
Id.
160
Id.
27
salespeople to the forum “to develop business, negotiate contracts, and service national accounts,”
but was not registered to so do business there, had never maintained an office there, and had never
paid franchise taxes there.161
In the rare cases in which the Fifth Circuit has indicated that the requisite showing of general
jurisdiction over a corporation has been, or could be made, the defendants’ contacts with the forum
were extensive. In Adams v. Unione Mediterranea di Sicurta, for example, the Fifth Circuit,
applying the prima facie standard, had “no difficulty” determining that an Italian insurer had
“continuous and systematic contacts with the United States as a whole,” thereby supporting
jurisdiction pursuant to Rule 4(k)(2).162 There, the record showed that the insurer paid claims to
“numerous” U.S. companies, provided coverage to “numerous” other U.S. companies, insured
hundreds of shipments to the United States, and “used and paid a number of individuals in the
United States as claims adjusters, surveyors, and investigators and other representatives to enable
it to conduct business” in the United States.163
Likewise, in System Pipe & Supply, Inc. v. M/V VIKTOR KURNATOVSKIY, the plaintiff
alleged that the defendant: (1) made regular port calls in the United States; (2) established and
advertised a shipping line that provided service from United States ports to the Mediterranean and
Black Seas; (3) maintained a line of vessels that carry cargo from the eastern United States to Israel;
(4) had a ship detained in Texas; (5) called at a Texas port and discharged cargo there; (6) had been
involved in fifty actions in federal courts; and (7) had been a defendant in another suit in the district
court where the plaintiff filed its action, and had not been dismissed from that suit for lack of
161
322 F.3d at 381.
162
364 F.3d at 651.
163
Id.
28
personal jurisdiction.164 The Fifth Circuit concluded that these allegations of extensive domestic
contacts, if established, “would be sufficient for the plaintiff to make a prima facie showing of
national minimum contacts” pursuant to Rule 4(k)(2).165
The foregoing Fifth Circuit cases precede two recent Supreme Court decisions, Daimler AG
v. Bauman166 and Goodyear Dunlop Tires Operations, S.A. v. Brown,167 and must therefore be read
in light of these decisions. In Goodyear, the Supreme Court held that general jurisdiction could not
be sustained based upon the defendant’s “placement of . . . tires in the ‘stream of commerce,’” such
that those tires “sporadically reached” the forum state through “intermediaries,” because the
defendant was “in no sense at home” in the forum state by virtue of these “attenuated”
connections.168
In Daimler, the Court further developed the “at home” standard set forth in Goodyear,
holding that the maintenance of multiple facilities and extensive product sales in the forum by the
defendant’s subsidiary, even if sufficient to render the subsidiary “at home” in the forum, and even
if imputed to the defendant, did not suffice to establish general jurisdiction.169 In reaching this
conclusion, the Court reasoned that:
[O]nly a limited set of affiliations with a forum will render a defendant amenable to
all-purpose jurisdiction there . . . With respect to a corporation, the place of
incorporation and principal place of business are paradigm bases for general
164
165
242 F.3d at 324–25.
Id.
166
134 S.Ct. 746.
167
131 S.Ct. 2846, 2854–57 (2011).
168
Id.
169
134 S.Ct. at 752–62.
29
jurisdiction. Those affiliations have the virtue of being unique—that is, each
ordinarily indicates only one place—as well as easily ascertainable.170
Although the Court identified a defendant’s place of incorporation and principal place of business
as “paradigm bases” of general jurisdiction, it nonetheless declined to rule out “the possibility that
in an exceptional case,” such as Perkins, “a corporation's operations in a forum other than its formal
place of incorporation or principal place of business may be so substantial and of such a nature as
to render the corporation at home in that State.”171
On the facts before it, however, the Court found insufficient support for general jurisdiction,
because neither the defendant nor its subsidiary were incorporated in the forum state or maintained
their principal place of business there, and because “the same global reach” of general jurisdiction
“would presumably be available in every other State in which [the defendant’s] sales were sizeable”
if the defendant’s activities in the forum state were sufficient to establish general jurisdiction
there.172 In reaching this conclusion, the court added in a footnote that:
The general jurisdiction inquiry does not focus solely on the magnitude of the
defendant’s in-state contacts. General jurisdiction instead calls for an appraisal of a
corporation’s activities in their entirety, nationwide and worldwide. A corporation
that operates in many places can scarcely be deemed at home in all of them.
Otherwise, “at home” would be synonymous with “doing business” tests framed
before specific jurisdiction evolved in the United States.173
Considering the high threshold set in Daimler, the Fifth Circuit has recently indicated that it is
“incredibly difficult to establish general jurisdiction” in a forum other than a corporation’s place of
170
Id. at 760 (internal citations, quotation marks, brackets, and ellipses omitted).
171
Id. at 761 n.19 (citing Perkins, 342 U.S. at 447-48).
172
Id. at 761.
173
Id. at 762 n.20 (internal brackets, cross-references, and quotation marks omitted).
30
incorporation or principal place of business.174
i.
FMC Kongsberg
Taking Patterson's uncontroverted allegations as true, and resolving all factual conflicts in
his favor, the Court will now consider whether FMC Kongsberg’s alleged contacts establish a prima
facie case in support of general jurisdiction over FMC Kongsberg. In support of general jurisdiction
over FMC Kongsberg, Patterson indicates that FMC Kongsberg is“all but operating out of
Houston,”175 because: (1) FMC Kongsberg seconded 17 of its employees to FMCTI’s Houston
office between 2009 and 2012176 and maintained its employment relationship with these seconded
employees during their tenure in Houston;177 (2) FMC Kongsberg’s general counsel attended
meetings with the “global legal team” in Houston;178 (3) FMC Kongsberg and FMCTI had the same
core business, subsea work;179 (4) FMCTI “seconds” its employees to FMC Kongsberg;180 and
(5) secondment activity is ongoing.181 FMC Kongsberg does not dispute that it “seconded”
employees to Houston, but rather maintains that the employment structure set up by the secondment
agreements, and the small share of its employees participating in these agreements, are insufficient
174
Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014).
175
Rec. Doc. 129 at p. 9.
176
Id. at pp. 3-4 (citing Rec. Doc. 129-2; Rec. Doc. 129-3 (secondment agreements); Rec. Doc. 129-1
(chart summarizing secondments)).
177
Id. at pp. 4–7 (citing Rec. Doc. 129-2; Rec. Doc. 129-3).
178
Id. at pp. 7-8 (citing Rec. Doc. 129-4 at p. 4).
179
Id. at p. 8 (citing Rec. Doc. 129-4 at p. 5).
180
Id. (citing Rec. Doc. 129-5 at p. 5).
181
Id. at pp. 8–9.
31
to establish a prima facie showing of general jurisdiction.182
In this inquiry, Patterson must make a prima facie showing that FMC Kongsberg is
“essentially at home”183 in the United States, as that term has been defined in Goodyear and
Daimler. Thus, assuming, for purposes of argument, that FMC Kongsberg’s contacts with the United
States, when considered in toto, were continuous and systematic, and further assuming that FMC
Kongsberg’s seconded employees remained in the employ of FMC Kongsberg during their
secondment periods, the Court will consider the “at home” requirement first.
On this point, Daimler limits the circumstances under which the requisite showing can be
made to those cases where the defendant is incorporated in the forum, the defendant has its principal
place of business in the forum, and other “exceptional cases” such as Perkins,184 the “textbook case
of general jurisdiction appropriately exercised over a corporation that has not consented to suit in
the forum.”185 Additionally, Daimler requires the Court to consider a “corporation's activities in their
entirety, nationwide and worldwide,” because “[a] corporation that operates in many places can
scarcely be deemed at home in all of them.”186 In the present case, Patterson does not allege or argue
that FMC Kongsberg is incorporated in the United States or has its principal place of business here.
Therefore, neither of the two “paradigm bases” of general jurisdiction are at issue. Rather, Patterson
182
Rec. Doc. 134 at pp. 3–6.
183
Goodyear, 131 S.Ct. at 2851.
184
134 S.Ct. at 758 n. 11; 761 n. 19.
185
Id. at 755–56.
186
Id. at 762 n. 20.
32
argues that FMC Kongsberg “all but operat[ed] out of”187 the United States by virtue of (1) its
secondment activity, (2) its participation in meetings in the United States, and (3) its share of global
subsea work.188
In Daimler, the Supreme Court pointed to Perkins as an example of an “exceptional case”
in which general jurisdiction was appropriate in a forum “other than . . . [the defendant’s] formal
place of incorporation or principal place of business.”189 This Court, applying Daimler here, will
likewise use Perkins as a benchmark, and will compare FMC Kongsberg’s United States contacts
with the contacts at issue in Perkins. In Perkins, the defendant’s president, general manager, and
principal stockholder maintained an office in the forum, supervised many of the defendant’s
activities from the forum, kept the company’s files there, held director’s meetings there, and engaged
in financial transactions there.190 Thus, the forum served as a de facto administrative hub for the
defendant,191 even though the defendant’s core business operation, mining, occurred in the
Phillippines.192
Here, although Patterson indicates that FMC Kongsberg employees attended meetings in the
United States and worked out of FMCTI’s office in the United States pursuant to an ongoing
187
Rec. Doc. 129 at p. 9.
188
Regarding the division of subsea work among FMC entities, Patterson points to statements made by
Bille that the “FMC family” is divided into four regions which handle “more or less the same business” in different
parts of the world. Rec. Doc. 129 at p. 8 (citing Rec. Doc. 129-4 at p. 5).
189
134 S.Ct. at 762 n. 19.
190
342 U.S. at 447-48.
191
Indeed, in Daimler, the Court noted that the forum in Perkins was the defendant’s “principal, if
temporary, place of business.” 134 S.Ct. at 756 (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 780 n. 11
(1984)).
192
See Perkins, 342 U.S at 447–48.
33
secondment policy, he does not allege, and the record does not show, that FMC Kongsberg itself
maintained an office in the United States, or kept any records in the United States, or administered
its business from the United States. Thus, even when taking Patterson’s uncontroverted allegations
as true and resolving all factual conflicts in Patterson’s favor, FMC Kongsberg’s United States
contacts, when considered in toto, do not suggest that the entity operated in a manner “comparable
to a domestic enterprise” in the United States, at least to the extent that Perkins serves as the
exemplar.193
Further, FMC Kongsberg’s contacts with the United States are similar to contacts found
insufficient to support general jurisdiction in pre-Daimler cases. Specifically, in Central Freight
Lines, the Fifth Circuit rejected the assertion of general jurisdiction predicated upon the defendant’s
history of “routinely arrang[ing] and receiv[ing] interline shipments to and from Texas and
apparently send[ing] sales people to the state on a regular basis to develop business, negotiate
contracts, and service national accounts,” because these contacts, even if deemed to be “continuous
and systematic,” were “clearly not substantial enough” to justify the exercise of general
jurisdiction.194 Likewise, in Johnston, the Fifth Circuit found that general jurisdiction could not be
maintained notwithstanding a defendant’s alleged employment of a resident of the forum,
coordination of clinical trial work occurring in the forum, performance of work on behalf of forum
companies, and sales and service of equipment in the forum.195
Here, as in Central Freight Lines and Johnston, Patterson alleges that FMC Kongsberg
193
194
195
134 S.Ct. at 758 n.11.
322 F.3d at 381. See also Johntson, 523 F.3d at 612–13.
523 F.3d at 613–15.
34
employees performed work in the forum and came to the forum for business activities. Although
Patterson contends that FMC Kongsberg’s practices are more “systematic” than the employment of
forum residents at issue in other cases,196 Central Freight Lines and Johnston instruct,197 and
Daimler confirms, that continuous and systematic contacts must be sufficiently substantial in order
to support general jurisdiction.198
FMC Kongsberg’s alleged activities in the United States are also less extensive and less
comprehensive than the activities at issue in Adams, where the plaintiff made the requisite prima
facie showing pursuant to Rule 4(k)(2). There, the record showed that the defendant essentially
maintained a domestic business in the United States: it issued insurance policies to United States
customers, paid those customers’ claims, and maintained a workforce in the United States in
furtherance of those activities.199 Likewise, the defendant in System Pipe allegedly maintained
shipping lines dedicated to serving United States ports, regularly called at United States ports, and
had been involved in extensive litigation in United States courts,200 suggesting, as in Adams, a
196
Patterson candidly and correctly represents that courts have rejected assertions of general jurisdiction
premised upon the defendant maintaining employees in the forum. Rec. Doc. 129 at p. 8 (citing Ratliff v. Cooper
Laboratories, Inc., 444 F.2d 745 (4th Cir. 1971)). He contends, however, that the present case is different, because
FMC Kongsberg’s secondment activity was continuous, systematic, and ongoing. Rec. Doc. 129 at pp. 8-9.
197
Central Freight Lines, 322 F.3d at 381 (“Even if APA's contacts with the state of Texas have been, in
some sense, ‘continuous and systematic,’ APA's activities, in toto, are clearly not substantial enough to justify
subjecting APA to suit in the Western District of Texas based on a theory of general personal jurisdiction.”).
198
134 S.Ct. at 761 (“the inquiry under Goodyear is not whether a foreign corporation's in-forum contacts
can be said to be in some sense continuous and systematic, it is whether that corporation's affiliations with the State
are so continuous and systematic as to render it essentially at home in the forum State.”) (citations and internal
quotation marks omitted).
199
364 F.3d at 651.
200
Id.
35
substantial domestic business presence surpassing the limited presence at issue here.201
Regardless, to the extent that FMC Kongsberg’s United States contacts are evaluated
pursuant to the foregoing Fifth Circuit decisions, all of which pre-date Daimler, this Court gives
Daimler the last word. Pursuant to Daimler, this Court must consider a “corporation's activities in
their entirety, nationwide and worldwide,” because “[a] corporation that operates in many places can
scarcely be deemed at home in all of them.”202 Although Daimler provides little express guidance
on this point, the subsidiary entity in that case maintained facilities in the forum, and sales of the
defendant’s products in the forum amounted to 2.4% of its global total, but these contacts still fell
short of the mark.203 Here, although Patterson indicates that FMC Kongsberg employees attended
meetings and performed work in the United States, FMC Kongsberg, indicates that it employs 4,600
people,204 a figure that Patterson, who bears the burden on this motion, does not dispute. The 17
employees allegedly seconded to the United States between 2009 and 2012205 amount to less than1%
of that workforce. Finally, although Patterson indicates that FMC Kongsberg geographically divides
201
In support of general jurisdiction in the present case, Patterson cites Hunter v. Serv-Tech, Inc., No. 079009, 2009 WL 2447999 at *5 (E.D. La. Aug. 6, 2009) (Englehardt, J.), in which the district court noted that
“[w]hen determining the sufficiency of minimum contacts for general jurisdiction under Rule 4(k)(2), courts
consider whether the nonresident defendant: (1) transacts business in the United States; (2) performs an act in the
United States; or (3) performs an act elsewhere which has an effect in the United States.” In so stating, the district
court relied upon Stutzman v. Rainbow Yacht Adventures, Ltd., No. 06-300, 2007 WL 415355 at *3 (N.D. Tex. Feb.
7, 2007). The district court in Stutzman in turn relied upon Saudi v. S/T Marine Atlantic, 159 F.Supp.2d 469, 480
(S.D. Tex. 2000) and Norvel v. Ulstein Propeller AS, 161 F.Supp.2d 190, 206 (S.D.N.Y. 2001), both of which
decisions rely upon authority from outside the Fifth Circuit. Applying this authority, the district court in
Hunter found that Rule 4(k)(2) jurisdiction could be sustained on the basis that eleven of the defendant’s employees
performed work for a Texas-based company in the United States. In addressing the issues presented here, this Court
finds it unnecessary to look beyond controlling United States Supreme Court and Fifth Circuit authority.
202
134 S.Ct. at 762 n. 20.
203
Id. at 752.
204
Rec. Doc. 134 at p. 4.
205
Rec. Doc. 129 at p. 1.
36
subsea work with FMCTI and other affiliated entities,206 this geographical division does not suggest
any United States presence not already encompassed by the secondment agreements and by FMC
Kongsberg employees’ participation in meetings in the United States.
Thus, even when taking Patterson’s uncontroverted allegations as true and resolving all
factual conflicts in Patterson’s favor, FMC Kongsberg’s contacts, considered in toto, do not rise to
the substantial level required in order to establish a prima facie case that FMC Kongsberg was
essentially at home in the United States. Lacking the requisite prima facie showing on this point, the
Court concludes that Patterson has failed to establish an essential element of his case for general
jurisdiction over FMC Kongsberg. Thus, FMC Kongsberg’s motion will be granted.
ii.
Aker Subsea
Patterson also contends that he has made the requisite prima facie showing of general
jurisdiction over Aker Subsea, because he has submitted copies of secondment agreements
confirming that Aker Subsea “had a continuous and systematic process” of sending employees to
work in the United States.207 Aker Subsea, however, argues that “there is no legal basis or precedent
for exercising general jurisdiction” arising from these secondment agreements.208
On this point, Patterson’s arguments are unavailing, for reasons essentially identical to those
applicable to FMC Kongsberg. Patterson indicates that Aker Subsea, like FMC Kongsberg, sent
employees to the United States pursuant to secondment agreements. However, even when taking
Patterson’s uncontroverted allegations on this point as true, and even when resolving all factual
206
Id. at p. 8.
207
Rec. Doc. 139 at pp. 1–2 (citing Rec. Doc. 139-1; Rec. Doc. 139-2; Rec. Doc. 139-3).
208
Rec. Doc. 125 at p. 3.
37
disputes in Patterson’s favor, these contacts, when considered in toto, do not meet the “incredibly”209
demanding threshold set by the Supreme Court’s Daimler and Goodyear decisions and by Fifth
Circuit authority on point.
Specifically, Patterson does not allege or adduce evidence indicating that Aker Subsea is
incorporated in the United States or has its principal place of business here; thus, neither of
Daimler’s two paradigmatic bases for general jurisdiction are at issue. Further, Aker Subsea’s use
of secondment agreements, even if assumed to be continuous and systematic, does not approach the
substantial business presence found sufficient to support general jurisdiction in Perkins. Patterson
does not allege or point to evidence indicating that Aker Subsea maintained an office or kept records
in the United States or administered its business from here. Therefore, using Perkins as an exemplar,
as Daimler did, and considering Aker Subsea’s United States contacts in toto, Aker Subsea’s United
States presence is not so substantial that the entity can fairly be regarded as being “at home” here.
Indeed, Aker Subsea’s United States contacts, like FMC Kongsberg’s United States contacts,
are less substantial than the contacts at issue in the Fifth Circuit’s Adams and System Pipe cases. In
Adams, the defendant served numerous United States customers and employed a workforce in the
United States in furtherance of that business.210 In System Pipe, the defendant operated shipping lines
dedicated to serving United States ports, regularly called at United States ports, and had been
extensively involved in litigation in the United States.211 Here, although Patterson indicates that Aker
Subsea sent employees to work in the United States, he has not alleged that Aker Subsea itself had
209
Monkton, 768 F.3d at 432.
210
364 F.3d at 651.
211
Id.
38
a business presence in the United States, let alone a substantial presence, as in Adams and System
Pipe. Further, and as is the case with FMC Kongsberg, Aker Subsea’s domestic contacts are more
closely analogous to the contacts at issue in Johnston and Central Freight Lines,212 in which the
Fifth Circuit found the defendants’ forum contacts insufficiently substantial to warrant the exercise
of general jurisdiction.
In support of his assertion of general jurisdiction over Aker Subsea, Patterson cites Johnson
v. PPI Technology Services, L.P., a case in which a district court in the Eastern District of Louisiana
concluded that it could exercise general jurisdiction over a defendant pursuant to Rule 4(k)(2), on
the basis that the defendant managed payroll for 300 United States citizens from an office in
Houston, reasoning that the defendant “cannot effectively run its payroll operations out of Houston,
hold itself out to the recipients of its paychecks as having an office in Houston, and only employ
United States citizens who work abroad, while at the same time avoiding being brought into court
in the United States.”213 Here, by contrast, Patterson has not alleged or adduced evidence showing
that Aker Subsea maintains a comparably substantial business presence in the United States.
Thus, even when taking Patterson’s allegations as true and resolving all factual conflicts in
Patterson’s favor, Aker Subsea’s United States contacts, considered in toto, do not rise to the
substantial level required in order to establish a prima facie case that Aker Subsea was essentially
at home in the United States. Absent the requisite prima facie showing on this point, Patterson has
not established an essential element of his case for general jurisdiction over Aker Subsea.
212
Central Freight Lines, 322 F.3d at 381; Johnston, 523 F.3d at 613–615.
213
926 F.Supp.2d 873, 885 (E.D. La. 2013) (Barbier, J.).
39
b.
Specific Jurisdiction
As noted above, Patterson has expressly conceded that he cannot make the requisite prima
facie showing of specific jurisdiction over FMC Kongsberg.214 He has not, however, made such a
concession as to Aker Subsea. Accordingly, the Court will consider whether it may exercise specific
jurisdiction over Aker Subsea.
“Specific jurisdiction focuses on the relationship among the defendant, the forum, and the
litigation.”215 This Court may exercise specific jurisdiction over a nonresident corporation when the
corporation [1] “has purposefully directed its activities” at the forum and [2] “the litigation results
from alleged injuries that arise out of or relate to those activities.”216 If a plaintiff makes a prima
facie showing on these two points, then “the burden shifts to [the defendant] to show that exercising
jurisdiction would be unfair or unreasonable.”217
Here, even assuming that Aker Subsea has purposefully directed its activities at the United
States, it would still be necessary to consider whether Patterson’s claims against it result from
injuries arising from, or related to, Aker Subsea’s activities in the United States. In opposition to the
instant motion, Patterson indicates that Aker Subsea participated in secondment agreements through
which its employees worked in the United States.218 However, Patterson does not allege, nor point
to any evidence indicating, that his injuries arose from, or relate to, Aker Subsea’s secondment
activities. Further, Patterson cites no authority indicating that a defendant’s placement of employees
214
See Rec. Doc. 129 at p. 3 n.3.
215
Monkton, 768 F.3d 429 (quoting Walden v. Fiore, 134 S.Ct. 1115, 1121 (2014)).
216
Quick Technologies, 313 F.3d at 344.
217
Monkton, 768 F.3d at 433 (citations omitted).
218
Rec. Doc. 139 at pp. 1–2.
40
in the forum can support the exercise of specific jurisdiction if not related to the events in dispute.
Thus, even when taking Patterson’s uncontroverted factual allegations as true, and resolving all
factual conflicts in Patterson’s favor, the Court finds that Patterson has not established an essential
element of his prima facie case of specific jurisdiction over Aker Subsea.
2.
Jurisdictional Discovery
In opposition to Aker Subsea’s motion, Patterson initially represented that he required time
to conduct jurisdictional discovery in order to determine whether Aker Subsea “does any business,
or has any contacts, with the United States as a whole,” and whether Aker Subsea seconded
employees to the United States.219 Subsequently, Patterson moved to continue submission of the
instant motion to allow for 90 days of jurisdictional discovery.220 On October 3, 2014, the Court
granted the motion, continuing the submission of Aker Subsea’s motion until January 7, 2015.221 On
December 30, 2014, Patterson averred that he required more time to complete jurisdictional
discovery, because he obtained certain documents and deposed Funnemark in December 2014, had
not yet obtained the secondment agreements referenced by Funnemark in his deposition, and had
not deposed individuals identified by Funnemark in that deposition.222 He further requested that he
be given the opportunity to pursue additional jurisdictional discovery in the event that the Court
finds that he has not made the requisite prima facie showing of personal jurisdiction.223 Finally, on
March 11, 2015, Patterson filed a supplemental opposition to the instant motion, in which he avers,
219
220
Rec. Doc. 99.
Rec. Doc. 100.
221
Rec. Doc. 101.
222
Rec. Doc. 122 at p. 4.
223
Id.
41
without noting any need for further discovery, that he has made the requisite prima facie showing
of personal jurisdiction,224 suggesting that his earlier requests for jurisdictional discovery are now
moot.
To the extent that Patterson’s earlier requests for jurisdictional discovery are not now moot,
the Court notes that it has “broad discretion in all discovery matters.”225 If a plaintiff’s factual
allegations “suggest with reasonable particularity the possible existence of the requisite contacts,”
then “the plaintiff's right to conduct jurisdictional discovery should be sustained.”226 If, on the other
hand, the requested discovery “could not . . . [add] any significant facts,” requests for jurisdictional
discovery are properly denied.227
Here, the Court granted Patterson’s request for additional time to conduct jurisdictional
discovery. Apart from seeking discovery into Aker Subsea’s secondment agreements, Patterson
initially requested additional time to conduct discovery regarding whether Aker Subsea does any
business in the United States or has any contacts with the United States. After being granted an
opportunity to conduct discovery on this broad point, Patterson has pointed only to Aker Subsea’s
secondment agreements in support of his jurisdictional arguments. Further, Patterson’s complaint
does not indicate that Aker Subsea has other United States contacts. There, Patterson alleges that
Aker Subsea “contracted to provide technical supervision at the time of [his] accident,” and failed
to provide that supervision.228 Patterson does not allege, however, that any of these activities might
224
Rec. Doc. 139 at p. 2.
225
Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 270 (5th Cir. 2006).
226
Fielding v. Hubert Burda Media, Inc., 415 F.3d 419, 429 (5th Cir. 2005).
227
Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 221 (5th Cir. 2000) (citations omitted).
228
Rec. Doc. 73 at p. 2.
42
be connected to the United States.
In support of his request for further jurisdictional discovery, Patterson cites Lotherington v.
Sedgwick Group PLC,229 in which a district court denied as premature a motion for summary
judgment based upon a lack of personal jurisdiction. There, the district court concluded that the
record contained insufficient evidence regarding whether the defendant was an alter ego of its
subsidiaries, such that those subsidiaries’ forum contacts could be imputed to it.230 Here, by contrast,
Patterson asserts that secondment agreements support the exercise of general jurisdiction. Having
considered, and rejected, Patterson’s arguments on this point, it appears that further jurisdictional
discovery could not add any significant facts. Thus, to the extent that Patterson’s request for further
jurisdictional discovery is not moot, it will be denied.
IV. Conclusion
For the foregoing reasons,
IT IS ORDERED that Defendant FMC Kongsberg’s “Re-Urged Motion to Dismiss for
Lack of Personal Jurisdiction Pursuant to Rule 12(b)(2)”231 is GRANTED.
229
No. 96-2316, 1996 WL 655797 (E.D. La. Nov. 7, 1996) (McNamara, J.).
230
Id. at *2.
231
Rec. Doc. 127.
43
IT IS FURTHER ORDERED that Aker Subsea’s “Motion to Dismiss”232 is
GRANTED.
NEW ORLEANS, LOUISIANA, this 6th day of July, 2015.
___
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
232
Rec. Doc. 97.
44
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