Daniels v. The Fishing Vessel JOHN & NICHOLAS et al

Filing 27

ORDER DENYING 10 Defendant's Motion to Dismiss for Lack of Jurisdiction. Signed by US District Judge Terrence W. Boyle on 7/30/2013. Counsel is directed to read Order in its entirety for critical information. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 4:13-CV-24-BO
IN ADMIRALTY
JAMIE S. DANIELS,

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Plaintiff,
V.

THE FISHING VESSEL JOHN &
NICHOLAS, OFFICIAL NUMBER
1102517, her engines, tackle, fishing gear,
permits and apparel, etc., in rem, and
JOHN & NICHOLAS, INC., in personam,
Defendants.

ORDER

This matter is before the Court on the defendant's motion to dismiss for lack of personal
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2) [DE 10]. A hearing on this
motion was held in New Bern, North Carolina on July 24, 2013 at 3:15 p.m. For the reasons
stated herein, the defendant's motion is DENIED.

BACKGROUND
Plaintiff (Mr. Daniels) was a crewmember on defendant's fishing vessel John & Nicholas
(J&N). On February 13, 2010, the J&N sailed from Newport News, Virginia to begin a scallop
trip in the Delmarva closed region. The plaintiff was injured onboard the vessel on February 20,
2010. Mr. Daniels remained on the vessel until February 23, 2010 when the vessel landed in
Newport News, Virginia. Immediately after landing, the plaintiff sought medical care in
Virginia. Mr. Daniels received the remainder of his medical care in North Carolina. Mr. Daniels
has now initiated a suit in admiralty against the vessel and its owner. The corporate defendant

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argues that the plaintiffs filing of suit in this Court was improper as the defendant has not had
contacts with the forum state of North Carolina sufficient to support this Court's personal
jurisdiction over it. Although the defendant is incorporated in the State ofNew Jersey, and has its
principal place of business there, it has had numerous contacts with the State of North Carolina
recently and over the years.
First, the vessel landed in North Carolina eighteen times during the period from 2008 to
2013. Although the vessel has made no port calls here in 2013, it made one North Carolina port
call in 2012, and three in 2011. Further, all the trips in which the plaintiff participated after his
2009 rehiring either landed in North Carolina or landed in Virginia with special permission from
North Carolina. These trips occurred in late 2009 and early 2010. These North Carolina port
represent just one type of contact that the defendant had with this state.
In addition to docking in North Carolina eighteen times, J&N landed fish during each of
those landings and landed fish eight times in Virginia using its North Carolina quota allotments.
J&N landed the following annual poundage at Graybeards, LLC in Wanchese, North Carolina:
Year
2008
2009
2010
2011
2012

Poundage
60,813
77,614
84,177
18,769
17,148

North Carolina law permits the transfer of North Carolina fishing quotas to Virginia when
emergencies or weather conditions prohibit a vessel from landing in North Carolina. Due to
shoaling conditions at Oregon Inlet, J&N landed in Virginia eight times during the period from
2010 to 2013. The poundage landed in Virginia, but using a North Carolina quota, is as follows:

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Date Flounder (in lbs.)
112/2010
7,401
3/6/2011
9,476
1/3/12
9,701
2/13/12
8,372
2118112
8,742
1131113
14,857
2/27/13
15,000

Sea bass (in lbs.)
154
2.302
439
18
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984

Of course, in order to land any fish in North Carolina, J&N was required to hold certain
state licenses. In addition to its federal licenses and state licenses held in other states, J&N held
at least three licenses issued by the State of North Carolina. The J&N held a North Carolina
license to land flounder. J&N has held such a license every year since October, 2007. Only 150
of these licenses are in use at any given time. J&N also held a North Carolina license to land and
sell fish. J&N has held such a license every year since October, 2010. Both the flounder and land
and sell licenses expired on June 30, 2013 -at the time of the hearing it was not clear whether
J&N had renewed them. Finally, the vessel had held a North Carolina commercial fishing vessel
registration from October, 2007 through June, 2009.
In addition to landing in North Carolina, holding several North Carolina fishing licenses,
and landing and selling fish caught under North Carolina fishing quotas, the vessel recruited its
crew, including the plaintiff in North Carolina. In March, 2009, plaintiff was contacted at his
residence in Beaufort County, North Carolina by Richard Gibbs. At the time, Mr. Gibbs, a
commercial fisherman from Hyde County, North Carolina, was captain of the J&N. Other
members of the crew were also residents of North Carolina. Mr. Gibbs recruited the plaintiff to
his crew and plaintiff worked on the vessel until August, 2009 when fishing slowed and he was
laid off. The plaintiff was re-hired in December, 2009. His injury occurred shortly thereafter in
February, 2010.
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DISCUSSION
I.

RULE 12(b)(2) STANDARD.

The defendant has alleged that this Court lacks personal jurisdiction over it. When a
challenge to personal jurisdiction is addressed under Federal Rule of Civil Procedure 12(b)(2),
the plaintiff must make a "prima facie showing of a sufficient jurisdictional basis to survive the
jurisdictional challenge." Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). The district court
must "construe all relevant pleading allegations in the light most favorable to the plaintiff,
assume credibility, and draw the most favorable inferences for the existence of jurisdiction." !d.
Once a defendant has provided specific details contrary to a plaintiffs assertion of facts
supporting jurisdiction, a plaintiffs "bare allegations that the defendants had significant contacts
with the [forum] state" are insufficient to establish jurisdiction by a preponderance of the
evidence. Carejirst of Md., Jnc.v. Carejirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396, 402-03
(4th Cir. 2003). The plaintiff "must present affidavits or other evidence if the defendant counters
plaintiffs allegations with evidence that minimum contacts do not exist." Clark v. Remark, 1993
WL 134616, at *2 (4th Cir. 1993).
In order for a district court to exercise personal jurisdiction over a defendant pursuant to a
state long-arm statute, (1) the forum state's long-arm statute must authorize the exercise of
personal jurisdiction and (2) the defendant must have sufficient minimum contacts with the
forum state to satisfy the Due Process Clause of the Fourteenth Amendment. Christian Sci. Bd.

of Dirs. of the First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001).
Because North Carolina's long-arm statute "is designed to extend jurisdiction over nonresident
defendants to the fullest limits permitted by the Fourteenth Amendment's due process clause,"

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these inquiries collapse into one. See ESAB Grp., Inc. v. Centricut, Inc., 126 F.3d 617, 623 (4th
Cir. 1997).
Likewise, the due process inquiry consists of two prongs. First, the defendant must have
"minimum contacts" with the forum state such that it invoked the protection and benefits of that
states laws and, therefore, could reasonably expect to be haled into court there. Second, the
circumstances must be such that the court's exercise of personal jurisdiction over the defendant
does not offend "traditional notions of fair play and substantial justice." Asahi Metal industry Co.
v. Superior Court ofCalifornia, 480 U.S. 102 (1987).
The defendant's minimum contacts with the state can support either specific or general
jurisdiction. First, if the foreign party maintains "continuous and systematic" contacts with a
state, that state has general personal jurisdiction over the party, and the nonresident may be in
that state on any claim. See Perkins v. Benguet Canso/. Mining Co., 342 U.S. 437, 446 (1952).
When no such general contacts exist a court may assert specific personal jurisdiction only if the
litigation arises out of the defendant's contacts with the forum state. Helicopteros Nacionales de
Colombia v. Hall, 466 U.S. 408, 414 n.8 (1984). The type of jurisdiction at issue here is general
personal jurisdiction.
II.

GENERAL JURISDICTION.

In order to establish personal jurisdiction over the defendant it must be shown that the
defendant had "continuous and systematic general business contacts" with North Carolina
sufficient to sustain general jurisdiction by this Court. See Helicopteros Nacionales de Colombia,
466 U.S. at 416. "[T]he threshold level of minimum contacts to confer general jurisdiction is
significantly higher than for specific jurisdiction." ESAB Grp., 126 F.3d at 623-24.

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III.

DEFENDANT'S CONTACTS WITH NORTH CAROLINA.

The defendant is correct that the proper inquiry into the defendant's contacts with the
forum state is one which examines the nature and quantity of the contacts at the time of service
of process. However, this inquiry is not confined to some concretely defined time period. Rather,
the Court may consider contacts in the weeks and months leading up to the time of service. The
period oftime reviewed should be one that is reasonable under the circumstances. Young v. Hair,
7:02-CV-212-F, at *6 (E.D.N.C. Jan. 26, 2004). Moreover, where the defendant has established a
course and pattern of business the Court may consider those historical contacts as part of its
analysis. Here, the natural ebb and flow of the fishing business make historical contacts
particularly relevant. A defendant who shifts its contacts because fishing or landing conditions in
a neighboring state are more favorable in the months leading up to service cannot escape his
historical business connections with the forum state.
The defendant has cited many cases from the Eastern District of Louisiana, Louisiana
state courts, and elsewhere, that suggest the mere existence of occasional port calls over a
number of years does not sustain personal jurisdiction. See e.g. Asarco v. Glenara, 912 F.2d 784,
787 (5th Cir. 1990). Asarco was first a case of specific personal jurisdiction and only as an
alternative did the court consider the parties' positions on general jurisdiction. !d. Further, the
facts in that case are not analogous to the instant case. The Asarco court found that the defendant
"was not licensed to do business in Louisiana; did not solicit business there; did not maintain an
office there; and did not own property or employ personnel in the state." !d. Here, however the
defendant was licenses to do business in North Carolina, solicited business in North Carolina,
and employed crew in North Carolina. The other cases cited by the defendant fail to serve as
comparable factual scenarios for similar reasons.

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The Court does not disagree that a vessel's mere entry into a North Carolina port every
once in a while does not constitute sufficient contacts. See Nicolaisen v. Toei Shipping Co., Ltd.,
722 F.Supp. 1162 (D.N.J. 1989), aff'd without opinion, 887 F.2d 262 (3d Cir. 1989), motion for

leave to proceed in forma pauperis denied, 495 U.S. 928 (1990)(finding mere port calls and
business dealings with a business located in the forum state are not enough to sustain personal
jurisdiction). However, the Court finds that the defendant and its vessel had extensive contacts
with the state beyond its port calls here; contacts that the defendant summarily dismisses in its
brief by stating "[t]hese facts in no way illustrate a connection between J&N and North
Carolina." [DE 23]. The contacts that defendant blows off are actually key to the Court's
analysis and differentiate the instant fact pattern from the many cases cited by the defendant.
Viewed in isolation, perhaps, the defendant's contacts of any one type are not sufficient
to support this Court's personal jurisdiction over it. In other words, was the Court to consider
only the number of times the J&N docked in North Carolina those contacts might not be
sufficient to sustain personal jurisdiction. However, this Court considers the defendant's
following types of contacts with the forum state in concert: 1) the number of times the vessel
came into port in North Carolina; 2) the amount of fish poundage landed under North Carolina
quotas; 3) the issuance of multiple North Carolina licenses to defendant; and 4) the employment
of the plaintiff, and other crewmembers, in North Carolina. These contacts viewed together,
establish systematic and continuous contacts with the State of North Carolina sufficient to
support general personal jurisdiction over the defendant. As such, the defendant's motion is
properly denied.

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CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss for lack of personal
jurisdiction is DENIED.

SO ORDERED.
This the~ day of July, 2013.

-r:~YL;;• JUD~
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UNITED STATES DISTRICT

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