Delgado v. Reef Resort Ltd.

United States Court of Appeals

Fifth Circuit

F I L E D

UNITED STATES COURT OF APPEALS

For the Fifth Circuit April 13, 2004

Charles R. Fulbruge III

Clerk

No. 03-60611

MARIBEL DELGADO, as personal representative of the estate of Ruben

Delgado, M.D., for the benefit of the estate of Ruben Delgado,

M.D.; Maribel Delgado, individually, and on behalf of plaintiffs

Ruben Delgado, III and Gabriel Delgado, surviving minor heirs of

Ruben Delgado, Deceased,

Plaintiff-Appellant,

VERSUS

REEF RESORT LIMITED, a corporation, doing business as Ramon’s

Village Resort; HEADRICK COMPANIES INC; JOHN DOES, doing business

as Ramon’s Village Resort,

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Mississippi

Before DAVIS, BARKSDALE and PRADO, Circuit Judges,

W. EUGENE DAVIS, Circuit Judge:

Plaintiff Maribel Delgado (“Delgado”) challenges the district

court’s order dismissing her tort suit against Reef Resort Limited

(“Reef”) for lack of personal jurisdiction. We affirm the district

court’s dismissal.

I.

Dr. Reuben Delgado (“Dr. Delgado”) never surfaced during a

recreational scuba diving trip off the coast of Belize in August

2001. He is presumed dead. The scuba trip was organized by

Ramon’s Village Resort, which is operated by defendant Reef Resort

Ltd. (“Reef”) and the Headrick Companies, Inc. (“Headrick”).

Headrick is a resident of Mississippi. Reef is a resident of

Belize but allegedly does business in Mississippi.

Maribel Delgado (“Delgado”), Dr. Delgado’s wife and a Florida

resident, brought suit in Mississippi state court on behalf of

herself, her two children, and Dr. Delgado’s estate for the

negligence of Reef during the scuba expedition. Reef removed the

case to federal court. Defendants Reef and Headrick then moved to

dismiss for lack of personal jurisdiction. The court denied

Headrick’s motion on grounds that jurisdiction over Headrick exists

under the Mississippi long arm statute because Headrick is a

corporate citizen of Mississippi. Reef, a Belize company, argued

that the Mississippi long-arm statute does not permit non-resident

suits against non-resident corporations merely doing business in

Mississippi and further that personal jurisdiction under Fed. R.

Civ. P. 4(k)(2) is not appropriate since the case does not arise

under the court’s admiralty jurisdiction. The district court

agreed and dismissed the case against Reef for lack of

jurisdiction. Delgado now challenges that ruling.

II.

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We review de novo dismissal for lack of personal jurisdiction

under Rule 12(b)(2). See Jobe v. ATR Marketing, Inc., 87 F.3d 751,

753 (5th Cir. 1996).

Federal courts sitting in diversity may exercise personal

jurisdiction over a non-resident where the state long-arm statute

grants jurisdiction and the exercise of jurisdiction is consistent

with federal due process. See Latshaw v. Johnston, 167 F.3d 208,

211 (5th Cir. 1999). The question raised in this case is whether

the Mississippi long-arm statute confers jurisdiction over Reef.

The Mississippi long-arm statute provides in relevant part:

Any nonresident person, firm, general or limited

partnership, or any foreign or other corporation not

qualified under the Constitution and laws of this state

as to doing business herein, who shall make a contract

with a resident of this state to be performed in whole or

in part by any party in this state, or who shall commit

a tort in whole or in part against a resident or

nonresident of this state, or who shall do any business

or perform any character of work or service in this

state, shall by such act or acts be deemed to be doing

business in Mississippi and shall thereby be subjected to

the jurisdiction of the courts of this state.

Miss. Code § 13-3-57.

This court has, on numerous occasions, interpreted the

Mississippi statute to mean that non-residents may not sue

non-resident corporations doing business in Mississippi. See,

e.g., Submersible Sys., Inc. v. Perforadora Central, S.A., 249 F.3d

413, 418 (5th Cir. 2001); Herrley v. Volkswagen of America, Inc.,

957 F.2d 216, 216 (5th Cir. 1992) (per curiam). No intervening

change in state statute or case law has occurred that would allow

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us to abandon the existing circuit precedent. Therefore, based on

binding precedent from this court the Mississippi long-arm statute

does not permit Delgado, a resident of Florida, to bring suit

against Reef, a resident of Belize, despite the fact that Reef does

business in Mississippi.

Delgado argues that this court’s precedent interpreting the

Mississippi long-arm statute violates the Privileges and Immunities

Clause of Article IV of the United States Constitution. Once again

we are bound by Fifth Circuit precedent on this issue. In Breeland

v. Hide-A-Way Lake, Inc., 585 F.2d 716 (5th Cir. 1978), the court

pointedly held that, “the ‘doing business’ provision of the

Mississippi long-arm statute may not be invoked by a nonresident

plaintiff and that the statute, so construed, does not deny a

nonresident plaintiff privileges and immunities secured under the

Constitution.” Id. at 721.

Delgado argues that the Breeland precedent has been abrogated

by intervening Supreme Court caselaw, namely Supreme Court of New

Hampshire v. Piper, 470 U.S. 274 (1985). Piper, however, did not

purport to change the Privileges and Immunities law the court

established in Breeland. Rather, the Supreme Court in Piper merely

applied long existing law to unique facts that have little or no

relationship to the case at bar. We are, therefore, bound by the

Breeland precedent which holds that the Mississippi long-arm

statute does not violate the Privileges and Immunities Clause.

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We therefore agree with the district court that the

Mississippi long-arm statute does not confer jurisdiction over

Reef.

III.

Delgado also seeks to invoke jurisdiction under Fed. R. Civ.

P. 4(k)(2) based on admiralty jurisdiction.

Rule 4(k)(2) provides service of process and personal

jurisdiction in any district court for cases arising under federal

law where the defendant has minimum contacts with the United States

as a whole sufficient to satisfy due process concerns and the

defendant is not subject to jurisdiction in any particular state:

If the exercise of jurisdiction is consistent with the

Constitution and laws of the United States, serving a

summons or filing a waiver of service is also effective,

with respect to claims arising under federal law, to

establish personal jurisdiction over the person of any

defendant who is not subject to the jurisdiction of the

courts of general jurisdiction of any state.

Fed. R. Civ. P. 4(k)(2). This court has held that Rule 4(k)(2)

applies to cases sounding in admiralty since admiralty suits arise

under federal law. World Tanker Carriers Corp. v. MV Ya Mawlaya,

99 F.3d 717, 723 (5th Cir. 1996).

Delgado argues that Dr. Delgado’s death resulted from a

maritime tort and thus gives rise to admiralty jurisdiction. In

support of her position she asserts that 1) Dr. Delgado was

transported to the dive site by vessel, 2) improper preparations

were made for the dive, many of which would or should have occurred

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on the vessel on the way to the dive, 3) the negligence of the dive

crew caused disruption of maritime commerce because it generated

numerous distress calls, and 4) at the time of Dr. Delgado’s death

he was being supervised by members of the vessel’s crew. The

district court rejected Delgado’s attempted invocation of admiralty

jurisdiction finding no connection to maritime commerce or

traditional maritime activity.

We agree with the district court that the scuba accident in

this case did not result from a maritime tort. In order for an

accident to be a maritime tort so as to trigger admiralty

jurisdiction, the mishap must occur on navigable waters, the

accident must affect maritime commerce, and the activities leading

to the tort must be connected to traditional maritime activity.

Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S.

527, 534 (1995). The activity surrounding the recreational scuba

diving activity in this case did not affect maritime commerce, and

these activities are not connected with traditional maritime

activity. Therefore, the district court correctly concluded that

Dr. Delgado’s death did not result from a maritime tort and that

admiralty jurisdiction does not attach on that basis.

Recognizing that admiralty jurisdiction might nevertheless

attach to Delgado’s Death on the High Seas Act claim, 46 App.

U.S.C. § 761 et seq. (“DOHSA”), we requested and received briefing

on the issue of whether DOHSA conferred federal admiralty

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jurisdiction in this case allowing the application of Rule 4(k)(2).

Although Delgado made the general argument that this case came

within the court’s admiralty jurisdiction, she did not make the

specific argument to the district court that DOHSA could serve as

a basis for federal admiralty jurisdiction. Delgado’s failure to

make this argument to the district court constitutes a forfeiture

of the argument and we are left to review the issue for plain error

only. See Crawford v. Falcon Drilling Co., Inc., 131 F.3d 1120,

1123 (5th Cir. 1997)

Under plain error review we reverse only where there is “error

that is plain and that affects substantial rights.” United States

v. Olano, 507 U.S. 725, 732 (1993). Moreover, reversal is in the

sound discretion of the appellate court and “the court should not

exercise that discretion unless the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.”

Id.

While DOHSA plainly provides admiralty jurisdiction in this

case,1 and the failure to sustain jurisidiction based on DOHSA

affected Delgado’s substantial rights, the error does not seriously

impact the fairness, integrity, or public reputation of the

judicial proceeding. We therefore decline to exercise our

1

See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 218 (1986)

(“[A]dmiralty jurisdiction is expressly provided under DOHSA [where] the

accidental death[] occur[s] beyond a marine league from [the] shore [of the

United States].”); Jacobs v. N. King Shipping Co., Ltd., 180 F.3d 713, 717-18

(5th Cir. 1999) (“DOHSA created a remedy in admiralty for deaths occurring more

than three miles from shore as a result of wrongful act, neglect, or default.”).

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discretion to reverse the district court’s ruling.

IV.

For the reasons stated above we affirm the district court’s

order dismissing the claims against Reef for lack of personal

jurisdiction.

AFFIRMED.

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