# Petition for Writ of Certiorari — Dietrich v. Chew

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1451%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 948

## Text

y sas 0 +e us
No. -. @8 298 AUC 171999
OFFICE OF THE CLERK
IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1997

>

BENT DIETRICH,
Petitioner,

—_—YV—
PATRICIA CHEW, Individually and as Administratrix of the
Estate of Daren Chew, deceased and WILLIAM CHEW,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Cary R. Wiener
Counsel of Record
Martin A. Cohen
James M. Maloney
Richard H. Sommer
KIRLIN, CAMPBELL & KEATING
5 Hanover Square
New York, New York 10004-2614
(212) 425-7800

Attorneys for Petitioner

i
QUESTION PRESENTED FOR REVIEW

Whether the Second Circuit has misread the provisions of
the newly revised Rule 4(k) of the Federal Rules of Civil
Procedure by combining the separate requirements of 4(k)(1)
and 4(k)(2) to find jurisdiction over Petitioner even though
neither, standing alone, would have provided such jurisdic-
tion, and, in so doing, has interpreted Rule 4(k) in a manner
that conflicts with the provisions of the Rules Enabling Act.

CORPORATE DISCLOSURE STATEMENT

Petitioner Bent Dietrich is an individual German citizen.

+**

TABLE OF CONTENTS

eee SO PEs CORR CHIE oho cist eh nccnacegssseauesss
Eels ccs Wae te chaskcaes> Lbenenaeiees
STATEMENT OF JURISDICTION ............000sness

CONSTITUTIONAL PROVISIONS, TREATIES,
STATUTES ORDINANCES, AND
oe 8 SA Sen error

DUPRE EIEEET E SOE BEER GABE s ois vc cccvscccasescnencs

BASIS FOR FEDERAL JURISDICTION IN THE
UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK ..

THE OPINIONS BELOW, THE SECOND
CIRCUIT’S ERRORS, AND PETITIONER’S
ERAS Sd Us ech wine wenyaeers ease ees.

EE Aaah Wk OG ok ok bach N bi sé O00 se veseso is we

1. DIETRICH COULD NOT REASONABLY
HAVE ANTICIPATED THAT HIS
ACTIVITIES IN RHODE ISLAND
WOULD HAVE SUBJECTED HIM TO
JURISDICTION IN COURTS OF RHODE
ISLAND OR OF THE UNITED STATES
FOR AN ALLEGED TORT THAT
SUBSEQUENTLY OCCURRED ON
OMEN ATER Likes yet yicscs cree ceessene

bho

II.

Ill.

iv
PAGE

THE COURT BELOW HAS DERIVED
FROM RULE 4(K) A FLAWED SYLLOG-
ISM TO THE EFFECT THAT THE RULE,
CONSIDERED AS A WHOLE, PERMITS
PERSONAL JURISDICTION TO ATTACH
TO A DEFENDANT PROVIDED ONLY
THAT THE DEFENDANT HAS BEEN
PROPERLY SERVED AND HAS SUFFI-
CIENT MINIMUM CONTACTS IN
EITHER THE FORUM STATE OR THE
SINT RUGAE RTO WEOEE 5a 5540 Lox baebaaneeuveueeanns 13

THE SECOND CIRCUIT HAS RAISED
DIFFICULT NEW QUESTIONS OF LAW

BY APPLYING ITS OWN DUE PROCESS
STANDARDS, TO THE EXCLUSION OF

THOSE OF THE FIRST CIRCUIT, TO

FIND PERSONAL JURISDICTION OVER
PETITIONER UNDER THE RHODE

ISLAND LONG-ARM STATUTE ........... 16

a. Although an application of the Second
Circuit’s own due process test would
have been appropriate under a 4(k)(2)
analysis, the Second Circuit did not
find jurisdiction under 4(k)(2) ......... 16

b. The Second Circuit has raised difficult
new questions of law by applying its
own due process standards in analyzing
the Rhode Island long-arm statute...... 17

Sore a

PAGE

IV. THE SECOND CIRCUIT HAS CONSTRUED
RULE 4(K) IN A MANNER THAT
CONFLICTS WITH THE PROVISIONS
OF THE RULES ENABLING ACT.......... 18

et Rpt 8 reper oe eereT reser e ee ry 22

vi

TABLE OF AUTHORITIES

Federal Cases: PAGE
Aerogroup Intl, Inc. v. Marlboro Footworks, Ltd.,

956 F. Supp. 427, (S.D.N.Y. 1996))........ 4, 14, 16, 17
Burger King Corp. v. Rudzewicz, 471 U.S. 462

EE CTA eb eNGAKLCRCd VaR RN CATH ATOLES Ae whewd 6
Burke v. Woods, 1996 WL 223731 (10th Cir. 1996) ... 16
Chew v. Dietrich, 143 F.3d 24 24 (2d Cir. 1998) ..... passim
Chew v. Dietrich, Civ. No. 10201 97 WL 124114

LD Pech bAs sda ts Hives teana tke hiwce waa enwkes passim
Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317

CRIS co Oe ck ens ok eA CREO RCO we be abun 1]
Mississippi Pub. Corp. v. Murphree, 326 U.S.

IR OOE 5 Kb 60 0Nb sa a RSER DA Dbk ee URei p ivawavenee 19, 20
Nowak v. Tak How Investments, Ltd., 94 F.3d 708

CEI Res RSG hdd 5 fa 5 a haha han eee Pe eA ee 1]
Omni Capital International v. Rudolf Wolff & Co.,

Be Tre RE racks cade bak caer esveaiened ccs 15
In re Pintlar Corp., 133 F.3d 1141 (9th Cir. 1998) .... 16
Pizarro v. Hoteles Concorde International, C.A.,

PL Fie SAPO CROC RA. SPOOR 5 xan bes ikea eines 10
Sibbach v. Wilson & Co., 312 U.S. 1 (1941)........... 19, 21
U.S. S.E.C. v. Carrillo, 115 F.3d 1540 (11th Cir.

Lo dp Beane pau See eh see ok MEMES CA OneaS aw eA ees 14

United Electric Workers v. 163 Pleasant St. Corp.,
DO ie PU CORE CAD, BDRRR ok cic sve ckavenduencs 10

Vil

PAGE

Warn v. M/Y MARIDOME, 961 F. Supp. 1357 (S.D.

A yc 3) RR GREE aan nt ee ee eee per iy Ie me Pee 16
World Tanker Carriers v. M/V YA MAWLAYA, 99 F.3d

ree ee Le. |. a eerne rrr yy wy pre TT eres" 14
World-Wide ‘olkswagen Corp. v. Woodson, 444 U.S.

EE AE CAPER SWad vace pn eda Cota WWRERR ERY OAs nS 6
State Cases:
Messier v. Belisle, 640 A.2d 959 (R.I. 1994).......... 9,18
Roger Williams General Hospital v. Fall River

Trust Co., 423 A.2d 1384 (R.I. 1981).......... 9,10, 11
Federal Constitution, Statutes,
and Other Legislative Materials:
Fay RET. I, We Fik bas spaces tk Gakehenaeeaceweuns 1,21
Coe ee SE Ee Be el eves bn Ok wad wane he:aea
BO Es Te POI aise sioke cds ynavevetveecantapeieeses |
es Ris ose ip b ). » SORE Gere Tay rare rae ory 3
Rap Bache Gb >) SR et ere enemy ret ht 3
Rte ane TES >» Renee mere rcmm enews ha os 5 et) Hee 2
Pe RE ORM. Ph WEED Ke ve dccas swetdindseasavesnnsuyewinss 20
UNS Ws Mak By PP on RS RIN Ac aac vsbaa nt anys suck Shee pes passim
re a ev adash acti bune cee passim
ee Pe cal da cece aades Suvancdeetebens passim
ee ee Ce er ss as fh cle eb vod ene Ne eweKes 3

We ih Pe a eran vhs ccavs 20

Vil

State Statutes:

es Rs Be OE OOS CON Cy cxivccs eve cwowha cunt

Miscellaneous:

Leslie M. Kelleher, The December 1993 Amendments
to the Federal Rules of Civil Procedure
A Critical Analysis, 12 Touro L. Rev. 7 (1955)

PAGE
2,18
8, 20

Petitioner, Bent Dietrich, respectfully requests that a writ
of certiorari be issued to review the judgment of the United
States Court of Appeals for the Second Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the
Second Circuit is reported at Chew v. Dietrich, 143 F.3d 24
(2d Cir. 1998) (See App.). The Petition for Rehearing with a
Suggestion for a Rehearing In Banc was denied on May 18,
1998 with no opinion. The opinion of the district court for the
Southern District in the State of New York in Chew v. Diet-
rich, Civ. No. 10201 is not published, but can be found at
1997 WL 124114 (S.D.N.Y.) (See App.).

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for the
Second Circuit (“Court of Appeals”) was entered on April 1,
1998. The Court of Appeals denied a timely petition for
rehearing on May 18, 1998.

The jurisdiction of this Court is invoked pursuant to Sup.
Ct. R. 10(a), where the compelling reason the Court should
consider involves a Second Circuit Panel entering a decision
in conflict with the First Circuit regarding the same important
matter, the law for establishing personal jurisdiction in tort
cases under Rhode Island law.

CONSTITUTIONAL PROVISIONS, TREATIES,
STATUTES ORDINANCES, AND REGULATIONS

The following Constitutional Provisions, Treaties, Statutes,
Ordinances, and Regulations are reproduced in their full text
in the appendix to this petition:

1) U.S. CONST. amend. V
2) U.S. CONST. amend. XIV, § |

2

3) 28 U.S.C.A. § 2072
4) Feb. R. Civ. P. 4(k)
5) R.I. GEN. LAws § 9-5-33 (1956)

STATEMENT OF THE CASE

The undisputed facts upon which the Second Circuit based
its decision are as follows. In the summer of 1994, Petitioner
Bent Dietrich entered his yacht, the S/V RAINBOW, in the
Newport-to-Bermuda race. Earlier in that year, the RAIN-
BOW had been in Florida undergoing a repair. After the
repair was completed, Dietrich, Robert Sharkey (the vessel's
boatsman), and others sailed the boat to Newport, stopping
along the way at the Chesapeake Bay for another repair. When
the RAINBOW arrived in Newport, additional people were
needed to complete the nine-person crew for the race, and
Chew joined the vessel there. It is immaterial for purposes of

—this appeal whether Sharkey actively recruited Chew in New-
port or whether Chew learned of the opportunity to sail
aboard the RAINBOW through other means, for the District
Court found that, as a consequence of plaintiff’s pleadings,
“no personal jurisdiction over Sharkey exists to be imputed to
Dietrich, regardless of whether Sharkey indeed acted as Diet-
rich’s agent or indeed actively solicited Chew.” 1997 WL
124114 at *3 n.6. Neither this finding nor any findings of fact
were disturbed during appellate review.

As the Second Circuit noted, 143 F.3d at 26, no crew mem-
bers except Sharkey were paid anything for serving on board,
but Dietrich did later pay for hotel rooms and some meals for
the crew while they were in Bermuda after the race. In addi-
tion, Dietrich paid the airfare back to the United States for at
least one of the crew members.

At the time the yacht left Newport, it was Dietrich’s inten-
tion to bring it back to Newport with some of the same crew
members, 143 F.3d at 26, and Sharkey “was supposed to skip-

per the boat on the return trip.” 1997 WL 124114 at *1.
Instead, Sharkey returned from Bermuda to the United States
by air, and Chew, the most experienced sailor aboard, agreed
to serve as skipper on the return voyage. /d. On or about June
29, 1994, while in international waters, the RAINBOW
encountered heavy seas, and Chew was apparently swept
overboard. 143 F.3d at 26. His body has never been recov-
ered.

BASIS FOR FEDERAL JURISDICTION IN
THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK

In December 1995, Chew’s parents commenced this action
against Dietrich in the United States District Court for the
Southern District of New York. This case was within the
admiralty and maritime jurisdiction of the District Court pur-
suant to 28 U.S.C. § 1333. The suit arose out of an alleged
maritime tort, namely the death of Appellants’ decedent
Daren Chew on the high seas. This case also-falls within
the diversity jurisdiction of the District Court pursuant to
28 U.S.C. § 1332. The individual plaintiffs-appellants are
Massachusetts residents, the estate plantiff-appellant is a
Rhode Island resident, and defendant-appellee is a citizen of
Germany, and more than $50,000 in damages were alleged.

Dietrich moved to dismiss for lack of personal jurisdiction
pursuant to Rule 12(b)(2) of the Federal Rules of Civil Pro-
cedure, but agreed that the action could proceed in New York
only if he was subject to personal jurisdiction in either New
York or Rhode Island. Plaintiffs agreed that Dietrich was not
subject to personal jurisdiction in New York but argued that
he was subject to personal jurisdiction in Rhode Island.

THE OPINIONS BELOW, THE SECOND CIRCUIT’S
ERRORS, AND PETITIONER’S ARGUMENTS

The District Court recognized that the Rhode Island long-
arm statute authorizes the exercise of personal jurisdiction to
the maximum extent permitted under the Constitution. As the
Court of Appeals subsequently explained, “there was no re'-
evant Rhode Island case law on the issue” of whether a Rhode
Island state court would have had personal jurisdiction over
Dietrich under these precise facts, see 143 F.3d at 26, so the
District Court focused its opinion “on First Circuit authority,
since that 1s the body of precedent that would have been
applied had plaintiffs brought suit in the District of Rhode
Island.” 1997 WL 124114, at *3 n.4 (emphasis added) (citing
Aerogroup Int'l, Inc. v. Marlboro Footworks, Ltd., 956 F.
Supp. 427, 436 n.14 (S.D.N.Y. 1996)). The District Court then
carefully analyzed the First Circuit authorities and concluded
that in order to sustain personal jurisdiction in a case such as
this involving an alleged tort that occurred outside the forum,
the First Circuit generally requires a proximate causal nexus
between the defendant’s acts within the state and the plain-
tiff’s injury. /d. at *3. Finding no such proximate causal con-
nection between Dietrich’s activities in Rhode Island and
Chew's death on the high seas, the District Court dismissed
the action.

The Second Circuit reversed, starting “from a premise dif-
ferent from that of the court below,” 143 F.3d at 27, namely,
by noting that “[w]hen a complaint asserts federal jurisdic-
tion, Rule 4 of the Federal Rules of Civil Procedure now
‘extends the reach of federal courts to impose jurisdiction
over the person of all defendants against whom federal law
claims are made and who can be constitutionally subjected
to the jurisdiction of the courts of the United States.’ ” /d.
(citing Purposes of Revision, Advisory Committee Notes,
1993 Amendments to Rule 4). According to the Second Cir-
cuit, the effect of the 1993 revision to Rule 4(k) (i.e., the

addition of Rule 4(k)(2)) is that, assuming Dietrich was prop-
erly served, “the only question that remains is whether his
contacts with either Rhode Island or the United States are
sufficient to support the exercise of personal jurisdiction.”
143 F.3d at 27-28 (emphasis added).

By constructing this flawed syllogism from the separate
provisions contained in 4(k)(1) and 4(k)(2), each of which
provides an independent basis for personal jurisdiction in fed-
eral court, the Second Circuit (erroneously, in Petitioner's
view) found in the revised Rule 4(k) justification for apply-
ing its own due process standards to the exclusion of First
Circuit precedent, noting that “we are at liberty to decide for
ourselves what the Due Process Clause requires to sustain
personal jurisdiction.”' While the Second Circuit would unde-
niably have had the authority to apply its own due process
standards had it held that the basis for jurisdiction was the
new “federal long-arm statute,” Rule 4(k)(2), the Second Cir-
cuit did not so hold. Instead, as noted, it constructed a sy]-
logism from the separate provisions of Rule 4(k) to the effect
that jurisdiction would be proper if Dietrich’s “contacts with
either Rhode Island or the United States” were sufficient
under due process standards. 143 F.3d at 27-28. The Second
Circuit then applied its own due process analysis rather
than the First Circuit’s to Dietrich’s Rhode Island contacts,
indeed opining that “Dietrich’s contacts with Rhode Island
are alone sufficient to sustain the exercise of personal juris-
diction over him under the Due Process Clause.” 143 F.3d
at 30. Given that Dietrich’s contacts with the United States
outside of Rhode Island (a repair in Florida and another in the

' 143 F.3d at 30. The cases cited immediately thereafter by the

Second Circuit in support of the application of that general principle to
these specific circumstances are inapposite. for none deal with the query
required under Rule 4{k)(1), i.e., whether personal jurisdiction would
attach “in a court of general jurisdiction in the state in which the district
court is located,” which requires the Second Circuit to apply First Cir-
cuit law in considering whether Dietrich would have been subject to per-
sonal jurisdiction in federal court in Rhode Island.

Chesapeake area before Chew boarded the RAINBOW) were
insubstantial and causally unrelated to the alleged tort, the
Second Circuit could not have relied on these additional con-
tacts in finding personal jurisdiction, since these contacts
would add nothing to the “specific” jurisdiction question, the |
only relevant analysis.* Accordingly, Petitioner reads the Sec-
ond Circuit’s opinion as holding that personal jurisdiction was
obtained by means of Rule 4(k)(1) and the Rhode Island long-
arm statute, with dicta to the effect that, were that not the
case, Rule 4(k)(2) would provide an independent basis for
jurisdiction. As will be discussed infra at Point II, however,
Rule 4(k)(2) could not properly provide a basis for jurisdic-
tion over Dietrich either.

Petitioner respectfully proposes that the Second Circuit has
erred in several important aspects of its decision, each one
alone deserving of this Court’s review. From the perspective
that fundamental fairness is the first consideration of jurispru-
dence, the primary error of the court below was its conclusion
that, based on Dietrich’s Rhode Island contacts, he “could
reasonably [have] anticipate[d] that he might be ‘haled into
court’ in Rhode Island to respond to a suit to recover damages
for injuries that crew members recruited in Rhode Island
might suffer during the round-trip voyage.” 143 F.3d at 30.
Indeed, whether one may reasonably expect to be “haled into
court” as a result of one’s contacts with a forum is, as this
Court has held, an essential inquiry in determining whether
personal jurisdiction may be obtained over a defendant con-
sistent with the limits of due process. See World-Wide Volks-
wagen Corp. v. Woodson, 444 U.S. 286, 297 (1980); Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). Since
Dietrich could not have been sued in Rhode Island either in
state court, see infra Point I, or, as the District Court held,
1997 WL 124114 at *3-4, in federal court anywhere in the

2

“The parties concede, and the Court agrees, that Dietrich’s
contacts with Rhode Island are too sporadic to support the exercise of
general personal jurisdiction.” Chew v. Dietrich, 1997 WL 124114 at *2.

First Circuit, the Second Circuit erred in concluding that he
could reasonably have anticipated being “haled into court.”
Notably, the Second Circuit explicitly refrained from revers-
ing the District Court’s holding as to what the outcome would
have been under First Circuit law, thereby tacitly admitting
that it was applying its own due process analysis to the exclu-
sion of the First Circuit’s. See 143 F.3d at 30.

Although the above may have been the Second Circuit's
primary error from the perspective of fundamental fairness, at
the crux of its errors from a logical standpoint was its con-
struction of the aforementioned syllogism from the revised
Rule 4(k), see 143 F.3d at 27-28, from which it apparently
determined that it was free to apply its own standards of due
process in analyzing Dietrich’s Rhode Island contacts alone
as a basis for jurisdiction. That crucial error will be discussed
infra at Point II.

The third error deserving of Supreme Court review lies in
the Second Circuit’s having written an opinion that apparently
relies on the Rhode Island long-arm statute to support per-
sonal jurisdiction, but nevertheless applies the Second Cir-
cuit’s own due process standards (rather than those of the
First Circuit) to the analysis. The court’s breach in recogni-
tion of intercircuit authority raises troublesome questions,
some raising new issues of federalism, that illustrate the dif-
ficulties that will result if the decision is allowed to stand. For
example, could it possibly have been the intent of the Rhode
Island legislature, in enacting its long-arm statute, to extend
the jurisdictional reach of the statute beyond those limits of
due process as described by the First Circuit, wherein the
state is geographically located? May a federal court sitting
elsewhere presume that the legislature did intend to draft a
statute having such broad reach (as the Second Circuit has
done), or should a court instead reasonably construe the
statute as extending the reach of jurisdiction only to the lim-
its of due process as interpreted by First Circuit authority?
Relatedly, what authority is to be given the Second Circuit's

decision, if it is allowed to stand, in construing the Rhode
Island long-arm statute in the future?

It is submitted that by constructing its syllogism derived
from the separate and distinct requirements of 4(k)(1) and
4(k)(2), see 143 F.3d at 27-28, and by then relying on that
flawed syllogism as justification for the application of its own
standards of due process in construing tne reach of the Rhode
Island long-arm statute, the Second Circuit has opened a
“Pandora’s Box” of troubling questions. In so doing, it would
subject Dietrich to personal jurisdiction based solely on his
contacts within Rhode Island despite what would have been
the reasonable expectation that those contacts, in relation to
the tort alleged, were insufficient to have subjected him to the
jurisdiction of either the State of Rhode Island or the United
States.

Inextricably intertwined with the foregoing three funda-
mental errors is a fourth: the Second Circuit has construed
Rule 4(k) as a whole in a manner that would “abridge [a] sub-
stantive right,” namely the right to be free from being haled
into federal court, in contravention of the Rules Enabling Act,
28 U.S.C. § 2072(b). As one commentator has argued:

Rule 4(k)(2) and 4(k)(1) do not merely concern service.
Rather, Rule 4(k) purports to set forth a test by which
assertions of personal jurisdiction are to be adjudged.
Amenability to jurisdiction, however, seems to be a
substantive right within the meaning of the Rules
Enabling Act... .

Leslie M. Kelleher, The December 1993 Amendments to
the Federal Rules of Civil Procedure: A Critical Analysis,
12 Touro L. Rev. 7, 55 (i995) (emphasis added).

Although Petitioner does not argue that Rule 4(k) as drafted
runs afoul of the Rules Enabling Act, the Second Circuit has
interpreted the Rule in a manner that would conflict with
§ 2072(b). By combining the separate requirements of 4(k)(1)

and 4(k)(2) to construct its flawed syllogism, see 143 F.3d at
27-28, and by then applying its own due process standards to
determine whether Dietrich’s Rhode Island contacts alone
were sufficient, the Second Circuit has held Dietrich subject
to personal jurisdiction under Rule 4(k) even though he would
not have been subject to jurisdiction under either 4(k)(1) or
4(k)(2). This error is, of course, the corollary to what has
been described above as the Court of Appeals’ primary error
from the standpoint of fundamental fairness, i.e., its conclu-
sion that Dietrich could reasonably have anticipated being
“haled into court” as a result of his activities in Rhode Island.
It is to that conclusion that Petitioner now turns.

ARGUMENT

I. DIETRICH COULD NOT REASONABLY HAVE
ANTICIPATED THAT HIS ACTIVITIES IN RHODE
{ISLAND WOULD HAVE SUBJECTED HIM TO
JURISDICTION IN COURTS OF RHODE ISLAND
OR OF THE UNITED STATES FOR AN ALLEGED
TORT THAT SUBSEQUENTLY OCCURRED ON
THE HIGH SEAS

Although the Second Circuit has “found no Rhode Island
case dealing with the precise question presented here,” 143
F.3d at 30, the ultimate question of whether Chew’s claim
could have been brought in state court given an alleged tort
that occurred outside Rhode Island can readily be answered in
the negative by reference to existing state case law. In
Messier v. Belisle, 640 A.2d 959 (R.I. 1994), which arose out
of a car accident in Massachusetts, the Supreme Court of
Rhode Island held that neither defendant’s residence in Rhode
Island nor his dealings with the Rhode Island Department of
Motor Vehicles constituted sufficient contacts to permit per-
sonal jurisdiction over him. In Roger Williams Gen. Hosp. v.
Fall River Trust Co., 423 A.2d 1384 (R.I. 1981), a Rhode

10

Island hospital sought to recover funds allegedly converted
(out of state) by a Massachusetts bank. The Court held that it
would “offend traditional notions of fair play to exercise
jurisdiction over the bank when the alleged claim did not
arise in Rhode Island and when the bank’s main contact with
Rhode Island was terminated over 5 months prior to the ear-
liest point in time that a claim could have arisen.” 423 A.2d
at 1387. Here, the alleged tort occurred on the high seas, well
outside Rhode Island’s geographical boundaries, and Diet-
rich’s antecedent contacts with the state were already termi-
nated and indeed were far less substantial than those of either
the defendant motorist or bank in Messier or Roger Williams,
respectively.

The Second Circuit's opinion contains the observation that
“the same result would be reached if Rhode Island law were
to be applied,” 143 F.3d at 30, but this premise is supported
only with general language from Rhode Island cases indi-
cating that the scope of the long-arm statute is coextensive
with federal constitutional limits on due process, id. (citing
Messier), and is followed by the admission that the court has
“found no Rhode Island case dealing with the precise question
~ presented here.” 143 F.3d at 30. But the actual holdings of
Messier and Roger Williams point unerringly to the conclu-
sion that personal jurisdiction would not have attached in
state court under these circumstances.

As the Second Circuit tacitly admits, Dietrich would not
have been subject to personal jurisdiction in federal court in
Rhode Island. Despite its recognition that the First Circuit is
“one of the strongest proponents of the proximate cause test,”
143 F.3d at 29, the Second Circuit abandoned that test here.
The proximate cause test, with one circumscribed exception,
see infra, has consistently been applied in First Circuit cases.
See, e.g., United Elec. Workers v. 163 Pleasant St. Corp., 960
F.2d 1080, 1089 (1st Cir. 1992); Pizarro v. Hoteles Concorde
Int'l, C.A., 907 F.2d 1256, 1259 (1st Cir. 1990). Rather than
applying the First Circuit’s proximate cause test, which would

=
s
ry]
4
2

nly pape ade pate

1]

have resulted in dismissal, the Second Circuit found juris-
diction over Dietrich despite the absence of any proximate
causal connection between his activities in Rhode Island and
Chew’s subsequent death at sea, opining:

Where the defendant has had only limited contacts with
the state it may be appropriate to say that he will be sub-
ject to suit in that state only if the plaintiff’s injury was
proximately caused by those contacts. See Gelfand
v. Tanner Motor Tours, Ltd., 339 F.2d 317, 321-22 (2d
Cir. 1964). Where the defendant’s contacts with the
jurisdiction that relate to the cause of action are more
substantial, however, it is not unreasonable to say that
the defendant is subject to personal jurisdiction even
though the acts within the state are not the proximate
cause of the plaintiff’s injury.

143 F.3d at 29. Although the Second Circuit then cited Nowak
v. Tak How Investments, Ltd., 94 F.3d 708 (1st Cir. 1996) for
the proposition that “strict adherence to a proximate cause
standard in all circumstances is unnecessarily restrictive,”
143 F.3d at 29 (citing Nowak, 94 F.3d at 715), the court went
far beyond the narrow Nowak exception.

Indeed, in Nowak, the First Circuit emphasized the impor-
tance of adherence to the proximate cause standard in tort
cases, stating that a narrow exception to the proximate cause
test might be appropriate in the limited context of a rela-
tionship between a contractual or business association and a
subsequent tort, and holding only that “[w]hen a foreign cor-
poration directly targets residents in an ongoing effort to fur-
ther a business relationship . . . it may not necessarily be
unreasonable to subject that corporation to forum jurisdiction
when the efforts lead to a tortious result.” Jd. at 715 (empha-
sis added). This action does not fit into Nowak’s narrow
exception because it is not alleged, nor is there any evidence,
that Dietrich conducted commercial activity or received any
economic benefit from his limited and transient contacts with

Rhode Island. Nor was there any “ongoing effort” to further
any relationship, business or otherwise, with either Rhode
Island or the United States. Lastly, the Nowak exception was
applied in the case of a corporate defendant, a circumstance
not present here. The Second Circuit thus extended Nowak’s
exception to the proximate cause requirement far beyond its
limited scope.

As noted, the Second Circuit effectively admitted that its
decision was inconsistent with First Circuit precedent when
it stated, “We do not have to decide whether the court below
was correct in predicting that the First Circuit would adhere
to the proximate cause test in this case, since we are at liberty
to decide for ourselves what the Due Process Clause requires
to sustain personal jurisdiction.” 143 F.3d at 30. The Second
Circuit thus explicitly chose not to reverse the District
Court’s determination of the outcome under First Circuit law.
Rather, it applied its own due process standards to the exclu-
sion of the First Circuit’s.

It must be remembered that the relevant inquiry under Rule
4(k)(1) is whether Dietrich “could be subjected to the juris-
diction of a court of general jurisdiction” in Rhode Island.
Fed. R. Civ. P. 4(k)(1)(A). As the District Court recognized,
in order to address that inquiry with respect to federal courts
sitting in Rhode Island, consideration of First Circuit law is
required. See 1997 WL 124114, at *3 n.4. The Second Circuit
thus erred by applying its own standards of due process to
that analysis, resulting in its apparent holding that personal
jurisdiction exists under Rule 4(k)(1) and the Rhode Island
long-arm statute based on Dietrich’s activities within that
state.

Since, as shown above, neither state nor federal courts sit-
ting in Rhode Island would have exercised jurisdiction over
Dietrich in this case, he could not, based on his activities in
Rhode Island, have reasonably anticipated being haled into
either state or federal court in Rhode Island. Accordingly, the

13

Second Circuit's conclusion to the opposite effect, 143 F.3d
at 30, is erroneous.

Il. THE COURT BELOW HAS DERIVED FROM RULE
4(K) A FLAWED SYLLOGISM TO THE EFFECT
THAT THE RULE, CONSIDERED AS A WHOLE,
PERMITS PERSONAL JURISDICTION TO ATTACH
TO A DEFENDANT PROVIDED ONLY THAT THE
DEFENDANT HAS BEEN PROPERLY SERVED
AND HAS SUFFICIENT MINIMUM CONTACTS IN
EITHER THE FORUM STATE OR THE UNITED
STATES

The Second Circuit, after noting that its “analysis of the
question of personal jurisdiction over Dietrich starts from a
premise different from that of the court below,” went on to
quote the text of both Rule 4(k)(1)(A), which provides for
jurisdiction in federal court over a defendant who could be
subjected to jurisdiction in a court of general jurisdiction in
any state, and of 4(k)(2), which provides that service of a
summons is effective to establish jurisdiction over a defen-
dant “who is not subject to the jurisdiction of the courts of
general jurisdiction of any state.” 143 F.3d at 27 (quoting Fed.
R. Civ. P. 4(k)). From these two separate provisions, coupled
with the assumption that Dietrich was properly served, the
Second Circuit derived the syllogism that the sole remaining
inquiry is “whether his contacts with either Rhode Island
or the United States are sufficient to support the exercise of
personal jurisdiction.” 143 F.3d at 28.

Although at first the syllogism appears logical, its flaw lies
in its failure to articulate which due process standard should
be employed depending on whether 4(k)(1)(A) or 4(k)(2) is
the basis for jurisdiction. If jurisdiction is to exist under
4(k)(1)(A), with service under a state long-arm statute, the
law of the circuit in which the state is located must be
applied, since that law will determine, at least as to federal

14

courts sitting within the state, whether the defendant “could
be subjected to the jurisdiction of a court of general juris-
diction in the state in which the district court is located.” Fed.
R. Civ. P. 4(k)(1)(A). The District Court recognized this, and
accordingly applied First Circuit law. 1997 WL 124114, at *3
n.4. See also Aerogroup Int'l, Inc., supra, 956 F. Supp. at 436
n.14.

The Second Circuit, however, apparently concluded that the
addition of Rule 4(k)(2) to the Federal Rules in 1993 now
would permit courts to read Rule 4(k) as a whole, melding the
requirements of Rule 4(k)(1) with those of 4(k)(2). That the
Second Circuit so concluded is evident from the court’s hav-
ing noted, in leading to the adoption of its flawed syllogism,
that “Rule 4. . . now ‘extends the reach of federal courts to
impose jurisdiction over the person of all defendants against
whom federal law claims are made and who can be constitu-
tionally subjected to the jurisdiction of the courts of the
United States.’ ” 143 F.3d at 27 (emphasis added) (quoting
from Purposes of Revision, Advisory Committee Notes, 1993
Amendments). e

Rule 4(k)(2), however, merely “corrects a gap in the
enforcement of federal law” under which a defendant who is
a non-resident of the United States but whose contacts with
the United States as a whole are sufficient to meet due pro-
cess standards could escape jurisdiction because the defen-
dant has “insufficient contact with any single state to support
jurisdiction under state long-arm legislation or meet the
requirements of the Fourteenth Amendment limitation on state
court territorial jurisdiction.” Fed. R. Civ. P. 4(k)(2) Advisory
Committee Notes. See also World Tanker Carriers v. M/V YA
MAWLAYA, 99 F.3d 717, 720 (Sth Cir. 1996); U.S. S.E.C. v.
Carrillo, 115 F.3d 1540, 1543-44 (11th Cir. 1997).

Thus, Rule 4(k)(2) was drafted to remedy—and, accord-
ingly, contemplates—two possible situations: (1) where the
defendant’s contacts with the state would be sufficient to sat-

15

isfy due process but where that state’s long-arm statute does
not extend its reach to the limits of due process and thus does
not authorize service of process; and (2) where the defen-
dant’s contacts with the United States as a whole are suffi-
cient to satisfy due process requirements despite the fact that
defendant’s contacts within any particular state are not. The
circumstances present here contrast markedly with both sit-
uations. Rhode Island’s long-arm statute authorizes juris-
diction to the full reach of due process, making this situation
unlike that present in Omni Capital International v. Rudolf
Wolff & Co., 484 U.S. 97 (1987) (the case that led to the pro-
mulgation of Rule 4(k)(2))j, where the limitations inherent in
the state long-arm statute prevented the federal court from
obtaining jurisdiction despite the adequacy of defendants’
contacts within that forum (situation (1)). Nor can these cir-
cumstances credibly be described as akin to situation (2),
where defendant’s contacts with the United States as a whole
would satisfy due process requirements while those with any
single state would not.

Perhaps overlooking these considerations, the Second Cir-
cuit derived from the separate provisions of Rule 4(k)(2) and
4(k)(1) the syllogism that is at the crux of all its other errors,
namely that jucisdiction would be proper if Dietrich’s “con-
tacts with either Rhode Island or the United States” were suf-
ficient under due process standards. 143 F.3d at 27-28. Since
the syllogism as framed dispenses with the requirement that
the reviewing court apply the law of the circuit in which the
putative forum is located in performing the 4(k)(1) analysis (a
necessary requirement if the reviewing court is to determine,
as it must, whether jurisdiction would attach there), the Sec-
ond Circuit’s syllogism allowed it to proceed erroneously to
an application of Second Circuit due process standards to the
only significant contact Dietrich ever had with the United
States in relation to the tort alleged, i.e., the RAINBOW’s
visit to Newport.

16

Ill. THE SECOND CIRCUIT HAS RAISED DIFFICULT
NEW QUESTIONS OF LAW BY APPLYING ITS
OWN DUE PROCESS STANDARDS, TO THE
EXCLUSION OF THOSE OF THE FIRST CIRCUIT,
TO FIND PERSONAL JURISDICTION OVER
PETITIONER UNDER THE RHODE ISLAND
LONG-ARM STATUTE

The Second Circuit would have been free to apply its own
due process standard had it held that the basis for jurisdiction
were Rule 4(k)(2). In fact, it has applied its own due process
standard without engaging in the inquiry necessary for a
determination of whether Rule 4(k)(2) could be applied. Peti-
tioner accordingly digresses to clarify that essential point.

a. Although an application of the Second Circuit’s
own due process test would have been appropri-
ate under a 4(k)(2) analysis, the Second Circuit
did not find jurisdiction under 4(k)(2).

Rule 4(k)(2) provides that serving a summons is effective
to establish personal jurisdiction, with respect to claims aris-
ing under federal law, “over the person of any defendant who
is not subject to the courts of general jurisdiction of any
state.” Fed. R. Civ. P. 4(k)(2) (emphasis added). Courts have
interpreted the rule as requiring the unavailability of any state
long-arm jurisdiction as an absolute prerequisite to the rule’s
application. See, e.g., Burke v. Woods, 1996 WL 223731 (10th
Cir. 1996); Warn v. M/Y MARIDOME, 961 F. Supp. 1357
(S.D. Cal. 1997); Aerogroup Int'l, supra; see also In re Pint-
lar Corp., 133 F.3d 1141, 1145-46 (9th Cir. 1998). Here, how-
ever, the Second Circuit did not make the required
determination that Dietrich was not subject to the courts of
general jurisdiction of any state (indeed, it opined that the
Opposite is the case, see 143 F.3d at 30), and therefore it
could not have intended to hold that Rule 4(k)(2) provided
jurisdiction.

vg
”
¥

é

IESE Ach rath cl RE Gin! hte DEAN CED “os itg acy ie aA

17

Further, a moment’s reflection reveals that the Second Cir-
cuit could not have considered 4(k)(2) to be the basis of its
finding of personal jurisdiction over Dietrich. This is because,
given a state long-arm statute using language designed to
make it coextensive with the limits of due process under the
United States Constitution (as is Rhode Island’s, according to
both courts below), Rule 4(k)(2) would apply only in cases
where, although a defendant does not have minimum contacts
within a single state, its aggregate contacts among several
states either (1) combine to create a “presence” within the
United States (for “general” jurisdiction) or (2) each con-
tribute to causation (as in a mass tort) (for “specific” juris-
diction). Cf. Aerogroup Int'l, supra. But Dietrich’s non-Rhode
Island contacts were insignificant and added nothing either to
his “presence” in the United States or to the occurrence of
Chew’s death. Consistently with a recognition of the insignif-
icance of those additional contacts, the court below opined
that Petitioner’s “contacts with Rhode Island are alone suf-
ficient to sustain the exercise of personal jurisdiction over
him under the Due Process Clause[,]” 143 F.3d at 30, thereby
indicating that the basis for jurisdiction must be 4(k)(1) and
the Rhode Island long-arm statute. But, relying on its flawed
syllogism that, under Rule 4(k) when viewed as a whole,
jurisdiction would attach if Dietrich’s contacts with either
Rhode Island or the United States are sufficient to support the
exercise of personal jurisdiction, 143 F.3d at 27-28, the Sec-
ond Circuit applied its own due process standards to the
exclusion of First Circuit precedent.

b. The Second Circuit has raised difficult new ques-
tions of law by applying its own due process stan-
dards in analyzing the Rhode Island long-arm
Statute.

Simply put, the Second Circuit has found jurisdiction under
Rule 4(k) even though it has not (and could not) find juris-
diction under either Rule 4(k)(1) or 4(k)(2). It has reached

18

this erroneous conclusion by means of the syllogism that it
has dubbed its “starting premise,” creating an amalgam from
the two separate provisions and then applying its own due
process standards to the exclusion of those of the First Circuit
in a 4(k)(1) analysis that relies on service under the Rhode
Island long-arm statute. In having done so, it raises troubling
new questions of law.

Rhode Island’s long-arm statute makes amenable to service
of process “every individual not a resident of this state. . .
that shall have the necessary minimum contacts with the state
of Rhode Island. . . in every case not contrary to the pro-
visions of the constitution or laws of the United States.” Gen.
Laws of R.I1., § 9-5-33(a). It is agreed among both courts
below and the Rhode Island Supreme Court, see Messier,
supra, 640 A.2d at 960, that the statute’s scope is coextensive
with federal constitutional limits on personal jurisdiction.
What is unclear, however, and the question that the unique
circumstances of this case have apparently raised for the first
time, is whether the statute extends Rhode Island’s jurisdic-
tion to the federal constitutional limits as defined by the First
Circuit, or whether, as the Second Circuit’s decision implies,
Rhode Island’s legislature has (probably without intending to
do so) extended the limits of jurisdiction under the statute
beyond the parameters defined by the circuit in which the
state sits. If the latter is the case, difficult questions emerge,
some examples of which are given at page 7, supra.

IV. THE SECOND CIRCUIT HAS CONSTRUED RULE
4(K) IN A MANNER THAT CONFLICTS WITH
THE PROVISIONS OF THE RULES ENABLING
ACT

As discussed at length in the foregoing arguments, the Sec-
ond Circuit, relying on the language added to Rule 4(k) in
1993 (i.e., the addition of Rule 4(k)) has constructed a flawed
syllogism that has allowed it to find personal jurisdiction over
Dietrich even though jurisdiction would not attach under a

lL ESIGN TEER NEE et AE MORE,

i ee

19

separate application of either 4(k)(1) or 4(k)(2), and despite
Dietrich’s reasonable expectation that he could not be “haled
into court” as a result of his activities in Rhode Island.

Notably, doubts about whether Rule 4(k)(2) was within the
scope of the Rules Enabling Act have been present from the
time of its drafting. The Advisory Committee Notes begin
with the following “SPECIAL NOTE”:

Mindful of the constraints of the Rules Enabling Act,
the Committee calls the attention of the Supreme Court
and Congress to new subdivision (k)(2). Should this lim-
ited extension of service be disapproved, the Committee
nevertheless recommends adoption of the balance of the
rule, with subdivision (k)(1) becoming simply subdivi-
sion (k). The Committee Notes would be revised to elim-
inate references to subdivision (k)(2).

Among the specific “constraints” referred to are the pro-
visions of 28 U.S.C. § 2072(b), which requires that rules of
practice and procedure promulgated by the Supreme Court
pursuant to the Rules Enabling Act (28 U.S.C. § 2072) “shall
not abridge, enlarge or modify any substantive right.” /d.

In analyzing what is meant by a substantive right in the
context of challenges that rules of procedure are inconsistent
with this provision of the Rules Enabling Act, this Court has
stated that the appropriate test is “whether a rule really reg-
ulates procedure,—the judicial process for enforcing rights
and duties recognized by substantive law and for justly
administering remedy and redress for disregard or infraction
of them.” Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941).
Subsequently, in Mississippi Pub. Corp. v. Murphree, 326
U.S. 438 (1946), this Court recognized that “most alterations
of the rules of practice and procedure may and often do affect
the rights of litigants.” It also stated that “Congress” prohi-
bition of any alteration of substantive rights of litigants was
obviously not addressed to such incidental effects as neces-

20

sarily attend the adoption of the prescribed new rules of pro-
cedure upon the rights of litigants who . . . have been
brought before a court authorized to determine their rights.”
Id. at 445-46 (emphasis added). In Murphree, the Court sus-
tained the validity of Rule 4(f), which permitted service of
process anywhere in the state in which a district court is
located, against challenges that it abridged the substantive
rights of litigants.

The emphasized language, “who have been brought before
a court authorized to determine their rights,” is significant,
for it leaves open the possibility that whether a litigant may
properly be brought before a court in the first place is a sub-
stantive right. Indeed, as noted at page 8, supra, one scholarly
commentator has argued that “amenability to jurisdiction

_ . seems to be a substantive right within the meaning of the
Rules Enabling Act. Kelleher, supra, at 55.

Professor Kelleher went on to note that the House Judiciary
Committee Report accompanying the 1988 version of the
Rules Enabling Act clarified that the purpose of the limiting
language was to allocate authority between Congress and the
Court. The Report notes:

{[T}he substantive rights protected by proposed section
2072 include rights conferred, or that might be con-
ferred, by rules of substantive law, such as the right not
to be injured. . . by another’s negligence or the right
not to be subject to discrimination in employment on the
basis of race. . . . More generally, proposed section
2072 is intended to allocate to Congress, as opposed to
the Supreme Court. . . lawmaking choices that neces-
sarily and obviously require consideration of policies
extrinsic to the business of the courts. . .

Id. (quoting from H.R. Rep. No. 422, 99th Cong., Ist Sess. § 22
(1985) (citations and internal quotation marks omitted))
(emphasis added).

21

Under this standard, amenability to jurisdiction is a sub-
stantive right because it implicates a right conferred by sub-
stantive law: the individual’s liberty interest as protected by
the Due Process Clause of the Fifth or Fourteenth Amend-
ments, and it necessarily does so before the individual is sub-
ject to the court’s jurisdiction. Cf. Sibbach, supra (holding
that incidental infringements on liberty that are conditicned /
upon violation of the rules by a litigant already before the
court do not offend the Rules Enabling Act). Further, the for-
mulation of a rule governing amenability to jurisdiction
involves policy choices that are “extrinsic to the business of
the courts,” H.R. Rep. No. 422, supra, and more appropriately
left to Congress.

As noted in the Practice Commentaries, “[t]hat [Rule
4(k)(2)] was accepted and promulgated by the U.S. Supreme
Court and then also got through Congress . . . creates a pow-
erful presumption of the rule’s proceduralness [as opposed to
‘substantiveness’] that should be hard to overcome.” David D.
Siegel, Supplemental Practice Commentary C4-35, reprinted
at p. 87 of 1998 Cumulative Annual Pocket Part to 28
U.S.C.A. Fed. R. Civ. P. Rules 1 to 11. However, a pre-
sumption that the rule as drafted is “procedural,” and there-
fore not violative of the prohibition against “abridge[ment],
enlarge[ment] or modif[ication of] any substantive right” con-
tained in § 2072(b) does not necessarily mean that the rule «<
applied fits within the constraints imposed by the Rules
Enabling Act. If Rule 4(k) is applied as the Second Circuit
has done here, to find a basis for personal jurisdiction where
none would exist in the district and circuit within which the
overwhelming majority of Dietrich’s few contacts arose (and
indeed where none would exist under either Rule 4(k)(1) or
Rule 4(k)(2) if each were considered separately), Dietrich’s
substantive right to be free from being “haled into court” is
being rather severely “abridged” and “modified.” This is
especially so given that Dietrich had no reasonable expecta-
tion that his brief and transient contacts with either Rhode

22

Island or the United States could possibly subject him to
jurisdiction.

It is a fundamental principle of statutory interpretation that
a statute or rule should be construed in a manner that would
make it consistent with the constitution or legislation that
enabled its promulgation. Here, Rule 4(k) must not be con-
strued as the Second Circuit has construed it, for to do so
would be inconsistent with the mandates of the Rules
Enabling Act, 28 U.S.C. § 2072 (b), and it is the duty of this
Court to correct that error.

CONCLUSION

For the foregoing reasons, this Honorable Court should
review the Second Circuit’s decision. If allowed to stand, the
opinion would surely foster further misconstruction of the
revised Rule 4(k).

Respectfully submitted,

Cary R. Wiener
Counsel of Record
Martin A. Cohen
James M. Maloney
Richard H. Sommer
KIRLIN, CAMPBELL & KEATING
5 Hanover Square
New York, New York 10004-2614
(212) 425-7800

Attorneys for Petitioner

APPENDIX

la

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT

No. 730, Docket No. 97-7476.

Argued Oct. 20, 1997.
Decided April 1, 1998.

PATRICIA CHEW, Individually and as Administratrix of the
Estate of Daren Chew, deceased and WILLIAM CHEW.

Plaintiffs-Appellants,

BENT DIETRICH.

Defendant-Appellee.

JOHN A. CIRALDO, Perkins, Thompson, Hinckley & Keddy
(David B. McConnell, on the brief), Portland, ME, for Appel-

lants.

CARY R. WIENER, Kirlin, Campbell & Keating (Brett M.
Popolow, Richard H. Sommer, on the brief), New York City,
for Appellee.

2a

Before: WINTER, Chief Judge, MESKILL, Circuit Judge,
and MARTIN,* District Judge.

MARTIN, District Judge:

When Daren Chew agreed to sail in a race from Newport,
Rhode Island to Bermuda as a member of the crew on a yacht
owned by Bent Dietrich, the Due Process Clause of the United
States Constitution was no doubt the furthest thing from their
minds. Yet, as a result of Chew’s tragic death on the return
voyage and his parents’ subsequent suit against Dietrich, this
Court must explore the limits of the Due Process Clause to
determine whether Dietrich, a German citizen residing in
Hamburg, Germany, had sufficient contacts with the United
States so that its courts may exercise personal jurisdiction
over him.

I. FACTS

In the summer of 1994, Dietrich entered his yacht S/V
RAINBOW in the Newport to Bermuda race. Earlier in the
year, the yacht had been in Florida undergoing repairs under
the supervision of Robert Sharkey, whom Dietrich had hired
as boatsman. After the repairs were completed, Sharkey, Diet-
rich, and some of Dietrich’s friends sailed the boat up the East
Coast, stopping at the Chesapeake Bay for some additional
repairs, and then on to Newport for the race.

When the RAINBOW arrived in Newport, additional peo-
ple were needed to complete the nine person crew for the
race. According to Dietrich, Sharkey made it known that they
were looking for additional crew members and, as a result,
Chew joined them. There is no evidence that anyone but

. Hon. John S. Martin, Jr. of the United Staies District Court for
the Southern District of New York, sitting by designation.

3a

Sharkey was paid anything for serving on the crew, although
Dietrich did pay for hotel rooms and some meals for the crew
while they were in Bermuda. In addition, Dietrich paid the
airfare back to the United States for at least one of the crew
members.

At the time the yacht left Newport, it was Dietrich’s intent
to bring it back to Newport with some of the same crew mem-
bers. There is some dispute between the parties concerning
Chew’s original plans for his return to the United States. In
any event, after the boat arrived in Bermuda, Sharkey decided
not to make the return trip to Newport, and Dietrich asked
Chew to serve as skipper on the return voyage. During that
voyage, the boat encountered heavy seas and Chew was swept
overboard in international waters. Chew’s body was never
recovered.

Il. PROCEDURAL HISTORY

In December 1995, Chew’s parents commenced this action
against Dietrich in the Southern District of New York. The
record does not indicate how Dietrich, a citizen and resident
of Germany, was served—an affidavit of service was never
filed. Although the defendant’s answer asserted a claim that
he was not properly served, that contention was abandoned.

Dietrich moved to dismiss for lack of personal jurisdiction
pursuant to Rule 12(b)(2) of the Federal Rules of Civil Pro-
cedure, but agreed that the action could proceed in New York
if he was subject to personal jurisdiction in either New York
or Rhode Island.' Plaintiffs agreed that Dietrich was not sub-
ject to personal jurisdiction in New York but argued that he

|

Dietrich, in the alternative, moved for dismissal on forum non
conveniens ground on the basis that German law was applicable to the
action, and for partial summary judgment on the basis that the Jones Act,
46 U.S.C. app. § 688 (1994), did not apply because no employer-
employee relationship existed between Dietrich and Chew. Because the
District Court granted Dietrich’s motion to dismiss for lack of personal
jurisdiction, it did not decide either of these issues.

da

was subject to personal jurisdiction in Rhode Island. Thus, the
parties argued to the District Court that the issue was one of
Rhode Island law and cited various cases from the Rhode
Island District Court and the First Circuit on the question
whether Dietrich’s contacts with Rhode Island were sufficient
to warrant the exercise of personal jurisdiction.
The District Court recognized that Rhode Island’s long-arm
re statute authorizes the exercise of personal jurisdiction to the
full extent permitted under the Constitution. Since there was
no relevant Rhode Island case law on the issue, the District
Court focused its opinion “on First Circuit authority, since
that is the body of precedent that would have been applied
had plaintiffs brought suit in the District of Rhode Island.”
Chew v. Dietrich, No. 95 Civ. 10201, 1997 WL, 124114, at *3
n. 4(S.D.N.Y. Mar. 18, 1997) (citing Aerogroup Int'l, Inc. v.
Marlboro Footworks, Ltd., 956 F.Supp. 427, 436 n. 14
(S.D.N.Y. 1996)). The District Court then carefully analyzed
the First Circuit authorities and concluded that in order to
sustain personal jurisdiction, the First Circuit generally
requires a proximate causal nexus between the defendant's
acts within the state and the plaintiff’s injury. Jd. at *3. The
District Court, however, recognized that some federal courts
have adopted a broader “but for” standard for determining
whether the defendant’s acts in the forum state are sufficient
to support the exercise of personal jurisdiction and that the
First Circuit has adopted a similar standard in cases arising
from commercial activities within the state. /d. at *3-4. After
concluding that the First Circuit would require a proximate
causal nexus in a case such as this, the District Court found
that the recruiting of Chew to serve on the crew of the RAIN-
BOW was not a proximate cause of his death on the high seas
and granted the motion to dismiss. This appeal follows.

III. DISCUSSION

Our analysis of the question of personal jurisdiction over
Dietrich starts from a premise different from that of the court

Sa

below. The District Court accepted the assertion of the parties
that it could exercise personal jurisdiction over Dietrich only
if Rhode Island would exercise such jurisdiction. However,
plaintiffs assert federal subject matter jurisdiction under the
Jones Act, 46 U.S.C. app. § 688 (1994), the Death on the High
Seas Act, 46 U.S.C. app. §§ 761-768 (1994), and general fed-
eral maritime law. When a complaint asserts federal juris-
diction, Rule 4 of the Federal Rules of Civil Procedure now
“extends the reach of federal courts to impose jurisdiction
over the person of all defendants against whom federal law
claims are made and who can be constitutionally subjected to
the jurisdiction of the courts of the United States.” Purposes
of Revision, Advisory Committee Notes, 1993 Amendments.
Rule 4(k) provides, in relevant part:

(1) Service of a summons or filing a waiver of service is
effective to establish jurisdiction over the person of a
defendant

(A) who could be subjected to the jurisdiction of a court
of general jurisdiction in the state in which the district
court is located, or

(2) 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 estab-
lish personal jurisdiction over the person of any defen-
dant who is not subject to the jurisdiction of the courts
of general jurisdiction of any state.

Fed.R.Civ.P. 4(k).

As noted above, the record does not indicate how Dietrich
was served with process.” Since he abandoned any claim of
improper service in the District Court, we must proceed on

4
~

Moreover, the record is silent on how the parties decided to pro-
ceed on the assumption that Rhode Island law governed the due process
issue raised.

6a

the basis that he was properly served.’ Consequently, the only
question that remains is whether his contacts with either
Rhode Island or the United States are sufficient to support the
exercise of personal jurisdiction.

Prior to the 1993 amendments of Rule 4, there had been a
split of authority on the question whether the issue of per-
sonal jurisdiction presented a question of state or federal law,
when a federal claim was asserted but service was effected
pursuant to the law of the state in which the district court was
located. See generally United Rope Distribs., Inc. v. Seatri-
umph Marine Corp., 930 F.2d 532, 535-36 (7th Cir.1991). The
First, Third, Fifth, Ninth, and Eleventh Circuits stated that
when assessing the constitutionality of an assertion of per-
sonal jurisdiction .n a case arising under federal law where
service of process had been made using a method authorized
by state law, the federal court could exercise personal juris-
diction only if the defendant had sufficient contacts with the
forum state to satisfy the Fourteenth Amendment’s due pro-
cess standard. See, e.g., United Elec., Radio and Mach. Work-
ers of Am. v. 163 Pleasant Street Corp., 960 F.2d 1080,
1086-87 (lst Cir.1992); Max Daetwyler Corp. v. R. Meyer,
762 F.2d 290, 295-97 (3d Cir.1985); DeMelo v. Toche Marine,
Inc., 711 F.2d 1260, 1264-69 (Sth Cir.1983); Point Landing,
Inc. v. Omni Capital Int'l, Ltd., 795 F.2d 415, 423-427 (Sth
Cir.1986), aff'd. sub nom., Omni Capital Int'l v. Rudolf Wolff
& Co., 484 U.S. 97, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987); In
re Damodar Bulk Carriers, Ltd., 903 F.2d 675. 679 n. 5 (9th
Cir.1990); Cable/Home Communication Corp. v. Network
Prod., Inc., 902 F.2d 829, 855-56 & n.39 (11th Cir.1990).

The Sixth and Seventh Circuits expressed the view that
in a federal question case, the former Rule 4(e) did not

Since no question has been raised concerning the method of ser-
vice of the complaint, there is no need for us to resolve the question of
the extent to which federal jurisdiction may be limited in cases where
federal claims are asserted but service is effected using the forum state's
long-arm statute.

wl Oia it ae elas

Ta

call for the due process analysis based on the Fourteenth
Amendment. Rather, the Due Process Clause of the Fifth
Amendment controlled and all of the defendant’s con-
tacts with the United States could be considered. See.
e.g., Handley v. Indiana & Michigan Elec. Co., 732 F.2d
1265, 1268-72 (6th Cir.1984); United Rope Distribs.,
Inc. v. Seatriumph Marine Corp., 930 F.2d 532, 535-36
(7th Cir.1991); In re Oil Spill by Amoco Cadiz Off Coast
of France on March 16, 1978, 954 F.2d 1279, 1294 (7th
Cir.1992). See also DeJames v. Magnificence Carriers,
Inc., 654 F.2d 280, 292 (3d Cir.1981) (Gibbons, J. Dis-
senting).

Ultimately, the issue was decided by the Supreme Court
in Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97.
108 S.Ct. 404, 98 L.Ed.2d 415 (1987), which adopted the
majority view that state law governed the question of
personal jurisdiction even in a federal question case.

In response to the Supreme Court’s decision in Omni.
Rule 4 was amended in 1993, and the language, “under
the circumstances,” which had been critical to the major-
ity view analysis of Rule 4(e), was eliminated from the
rule. See, e.g., 4 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1075 at 494-95
(2d ed. 1987 & Supp.1997). Subdivision 4(k)(2) was also
added to the rule at that time. See Advisory Committee
Notes, 1993 Amendments, Subdivision (k).

Given the nature of the changes to Rule 4, a strong argu-
ment can be made that even where service is made under
the forum state’s long-arm statute, a federal court may
exercise personal jurisdiction as long as such exercise is
consistent with the Fifth Amendment due process
standard. Burt see 4 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1067.1 at 97
(Supp.1997). Since this case does not require us to
resolve the issue, we will leave that to another day.

8a

Even if we were to assume in this case that the District Court
was correct in holding that Rhode Island would not exercise
personal jurisdiction over Dietrich, there still is jurisdiction
over him pursuant to Rule 4(k), provided that such exercise of
jurisdiction satisfies the Fifth Amendment due process stan-
dard.

The principles to be applied in determining the due process
limits on personal jurisdiction were set forth in a recent deci-
sion of this Court:

The due process clause of the Fourteenth Amendment
permits a state to exercise personal jurisdiction over a
non-resident defendant with whom it has “certain mini-
mum contacts . . . such that the maintenance of the suit
does not offend ‘traditional notions of fair play and sub-
stantial justice.’ ” Calder v. Jones, 465 U.S. 783, 788,
104 S. Ct. 1482, 1486, 79 L.Ed.2d 804 (1984) (quoting
Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342,
85 L.Ed. 278 (1940) and International Shoe Co. v. Wash-
ington, 326 U.S.310, 316, 66 S.Ct. 154. 158, 90 L.Ed. 95
(1945)). In determining whether minimum contacts exist,
the court considers “the relationship among the defen-
dant, the forum, and the litigation.” Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 775, 104 S.Ct. 1473,
1478, 79 L.Ed.2d 790 (1984) (quoting Shaffer v. Heitner,
433 U.S. 186, 204, 97 S.Ct. 2569°2579, 53 L.Ed.2d 683
(1977)).

To establish the minimum contacts necessary to justify
“specific” jurisdiction, the [plaintiff] first must show that
[his] claim arises out of or relates to [defendant’s] con-
tacts with [the forum state]. Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct.
1868, 1872, 80 L.Ed.2d 404 (1984). The [plaintiff] must
also show that [the defendant] “purposefully availed”
[himself] of the privilege of doing business in [the forum
state] and that [the defendant] could foresee being “haled

bla

abies

Lae Air Sear et ty 3 ln 8th Pal iy ane: eet

ERE wa EL!

Ditton talc I AMO Re SNOUT Nat MAAN eA. tlc Bu he ra a

Aielt: det Cha Fe i,

9a

into court” there. See World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62
L.Ed.2d 490 (1980); Burger King Corp. v. Rudzewicz,
471 U.S. 462 475,105 S.Ct. 2174, 2183, 85 L.Ed.2d 528
(1985).

If the [plaintiff] satisf[ies] these requirements, the court
also considers whether the assertion of jurisdiction
“comports with ‘traditional notions of fair play and sub-
stantial justice’—that is, whether it is reasonable under
the circumstances of a particular case.” Metropolitan
Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 568
(2d Cir.), cert. denied, ____ U.S. ___, 117 S.Ct. 508, 136
L.Ed.2d 398 (1996) (quoting International Shoe, 326
U.S. at 316, 66 S.Ct. at 158), see also Ticketmaster-New
York, Inc. v. Alioto, 26 F.3d 201, 206 (1st Cir.1994).

Chaiken v. VV Pub. Corp., 119 F.3d 1018, 1027 (2d
Cir.1997).4

While these principles are generally accepted, conflicts
have developed in applying them to specific factual situa-
tions. In particular, as the District Court noted, there appears

4

Although Chaiken involved a Fourteenth Amendment analysis,
the due process a*alysis is basically the same under both the Fifth and
Fourteenth Amendments. The principal difference is that under the Fifth
Amendment the court can consider the defendant's contacts throughout
the United States, while under the Fourteenth Amendment only the con-
tacts with the forum state may be considered. Compare, e.g., Amoco
Cadiz, 954 F.2d at 1294 (“When the national sovereign is applying
national law, the relevant contacts are the contacts between the defendant
and the sovereign’s nation.”), Eskofot A/S v. E.1. Du Pont De Nemours &
Co., 872 F.Supp. 81, 87 (S.D.N.Y.1995) (stating that defendant must have
sufficient contacts with the United States, when personal jurisdiction is
exercised pursuant to Rule 4(k)(2)), SEC v. Carrillo, 115 F.3d 1540, 1544
(11th Cir.1997), World Tanker Carriers Corp. v. MV Ya Mawlaya, 99 F.3d
717, 723 (Sth Cir. 1996), with, e.g., Max Daetwyler, 762 F.2d at 295-97
(limiting relevant contacts to the contacts between the defendant and the
forum state in its Fourteenth Amendment due process analysis), ESAB
Group, Inc. v. Centricut, Inc., 126 F.3d 617, 623 (4th Cir.1997) (stating
that in a Fourteenth Amendment due process analysis, the court is to
examine defendant’s contacts with the forum state).

10a

to be a split in the Circuits on the standard to be applied in
determining if a tort claim “relates” to the defendant’s activ-
ities within the state. Some Circuits have held that in order
for the defendant to be subject to the jurisdiction of a state the
conduct within the state must be a proximate cause of the
plaintiffs injury. See, e.g., Pizarro v. Hoteles Concorde Int'l,
C.A., 907 F.2d 1256,1259 (1st Cir.1990); Nowak v. Tak How
Investments, Ltd., 94 F.3d 708, 714-15 (1st Cir.1996), cert.
denied, ... U.S. _, 117 S.Ct. 1333. 237 tee fee
(1997), Sybaritic, Inc. v. Interport Int'l, Inc., 957 F.2d 522,
524-25 (8th Cir.1992). Others have held that it is sufficient if
the defendant’s conduct in the state is a “but for” cause of the
plaintiffs injury. See, e.g., Shute v. Carnival Cruise Lines, 897
F.2d 377, 381-86.(9th Cir.1990), rev'd on other grounds, 499
U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991); Deluxe Ice
Cream Co. v. R.C.H. Tool Corp., 726 F.2d 1209,1216 (7th
Cir.1984): Creech v. Roberts, 908 F.2d 75, 80 (6th Cir.1990).

We do not believe that this dichotomy is as stark as it may
at first appear. It must be remembered that the relatedness test
is but a part of a general inquiry which is designed to deter-
mine whether the exercise of personal jurisdiction in a par-
ticular case does or does not offend “traditional notions of
fair play and substantial justice.” /nternational Shoe, 326 U.S.
at 316, 66 S.Ct. at 158 (citation and internal quotation marks
omitted). That analysis involves a consideration of “the rela-
tionship among the defendant, the forum, and the litigation.”
Shaffer, 433 U.S. at 204 97 S.Ct. at 2579. Where the defen-
dant has had only limited contacts with the state it may be
appropriate to say that he will be subject to suit in that state
only if the plaintiffs injury was proximately caused by those
contacts. See Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d
317, 321-22. (2d Cir.1964).° Where the defendant’s contacts

° While the District Court cites Gelfand as a case adopting the
proximate cause test, the Gelfand opinion makes no reference to such a
test and merely indicates that the Court was not willing to uphold per-
sonal jurisdiction on the “slender grounds” presented there. See id. at
321-22. Moreover, the Court in Gelfand was applying New York law,

Ce re ee ae ee aes

lla

with the jurisdiction that relate to the cause of action are more
substantial, however, it is not unreasonable to say that the
defendant is subject to personal jurisdiction even though the
acts within the state are not the proximate cause of the plain-
tiffs injury.

This type of distinction appears to have been recognized
even in the First Circuit which, by its own assessment, is con-
sidered to be one of the strongest proponents of the proximate
cause test. See Nowak, 94 F.3d at 715-16.

In Nowak, the First Circuit reiterated its general commit-
ment to the proximate cause test but did not apply it to the
facts presented. There, the plaintiffs decedent had drowned in
a pool at a hotel operated by the defendant in Hong Kong.
Even though the defendant’s solicitation of business in Mas-
sachusetts was not the proximate cause of the drowning, the
First Circuit held that the defendant’s activities within the
State were sufficient to sustain personal jurisdiction, stating
that “we are persuaded that strict adherence to a proximate
cause standard in all circumstances is unnecessarily restric-
tive.” /d. at 715. The court further noted that “flexibility is
necessary in the jurisdictional inquiry: relatedness cannot
merely be reduced to one tort concept for all circumstances.”
Id. at 716. The court then stated that “the relatedness
requirement. . . authorizes the court to take into account the
strength (or weakness) of the plaintiff’s relatedness showing
in passing upon the fundamental fairness of allowing the suit
to proceed.” /d. (quoting Ticketmaster, 26 F.3d at 207 (inter-
nal quotation marks omitted; alteration in original)).

We do not have to decide whether the court below was cor-
rect in predicting that the First Circuit would adhere to the
proximate cause test in this case, since we are at liberty to
decide for ourselves what the Due Process Clause requires to
Sustain personal jurisdiction. See, e.g., Menowitz v. Brown,
991 F.2d 36, 40 (2d Cir.1993):; In re Korean Air Lines Dis-
aster of Sept. 1, 1983, 829 F.2d 1171, 1174 (D.C.Cir.1987)

which limited jurisdiction to “a cause of action arising from” business
transacted within the state. /d

12a

(Ruth B. Ginsburg, J.), aff'd. on other grounds sub nom.,
Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 109 S.Ct. 1676,
104 L.Ed.2d 113 (1989). But see Eckstein v. Balcor Film
Investors, 8 F.3d 1121, 1127-28 (7th Cir.1993).

In our view, Dietrich’s contacts with Rhode Island are alone
sufficient to sustain the exercise of personal jurisdiction over
him under the Due Process Clause. This case does not arise
from a single act of Dietrich in Rhode Island. Dietrich entered
Rhode Island intending to assemble a crew for a round-trip
voyage to Bermuda. While he may not have recruited Chew
personally, the person who did was acting on his behalf. At
the time the yacht left Rhode Island for Bermuda, Dietrich
intended to return to Rhode Island with many of the same
crew members. In these circumstances it “does not offend tra-
ditional notions of fair play and substantial justice” to hold
that Dietrich may be sued in Rhode Island by the estate of
someone who joined the ship in Rhode Island and died during
the round-trip voyage. See /nternational Shoe, 326 U:S. at
316, 66 S.Ct. at 158 (citation and internal quotation marks
omitted). Whether or not Chew or Dietrich intended that
Chew would return to Rhode Island on the RAINBOW when
they set sail for Bermuda does not add or detract from the fact
that Dietrich knew he would be returning with most of the
crew. Dietrich could reasonably anticipate that he might be
“haled into court” in Rhode Island to respond to a suit to
recover damages for injuries that crew members recruited in
Rhode Island might suffer during the round-trip voyage. See
World-Wide Volkswagen, 444 U.S. at 297 100 S.Ct. at 567.

Moreover, as noted above, since the question of personal
jurisdiction is one of federal law, we are free to consider all
of Dietrich’s contacts with the United States in deciding
whether the exercise of personal jurisdiction is proper. Since
the accident at issue arose from the operation of a yacht that
had been maintained and used in the United States exclusively
for several months prior to the race, it is not unfair to Dietrich
to require him to respond to a suit in the United States that

- 13a

relates to the operation of the yacht and concerns injuries to
a crew member recruited in the United States.

We believe that the same result would be reached if Rhode
Island law were to be applied. Rhode Island’s long-arm
Statute provides:

every individual not a resident of this state. . . that
shall have the necessary minimum contacts with the state
of Rhode Island, shall be subject to the jurisdiction of
the state of Rhode Island. . . in every case not contrary
to the provisions of the constitution or laws of the
United States.

R.I. Gen. Laws § 9-5-33(a) (1985). The Supreme Court of
Rhode Island has held that “the scope of our long-arm statute
is coextensive with federal constitutional limits on personal
jurisdiction.” Messier v. Belisle, 640 A.2d 959, 960 (R.1.1994)
(citations omitted). See also McKenney v. Kenyon Piece Dye
Works, Inc., 582 A.2d 107, 108 (R.1.1990).

Although we have found no Rhode Island case dealing with
the precise question presented here, the Supreme Court of
Rhode Island has stated:

[The] inquiry regarding minimum contacts turns on
whether the cause of action arises out of the defendant’s
contacts with the forum. If a defendant’s conduct does
provide the basis for the litigation, all that need be
shown for jurisdiction to be proper is a “relationship
among the defendant, the forum, and the litigation.”

Id. (quoting Ben’s Marine Sales v. Sleek Craft Boats, 502
A.2d 808, 812 (R.I.1985) & Helicopteros, 466 U.S. at 414,
104 S.Ct. at 1872).

In addition, the decision in Ben’s Marine indicates that the
Supreme Court of Rhode Island is willing to extend personal
jurisdiction as far as the United States Constitution will per-
mit. In that case, the court upheld jurisdiction over a Cali-
fornia boat manufacturer in a suit based on a contract for the
sale of a boat negotiated in Chicago between the manufacturer

l4a

and plaintiffs, Rhode Island residents. The court stated that
the manufacturer, who delivered the boat to Rhode Isiand and
accepted payment for the boat there, “should reasonably have
expected that it might be ‘haled into court’ far from its home
base in California as a result of such activity.” Ben’s Marine,
502 A.2d at 815 (quoting World-Wide Volkswagen, 444 U.S.
at 297, 100 S.Ct. at 567).

Given Rhode Island’s expansive approach to the issue of
personal jurisdiction, we do not doubt that the Supreme Court
of Rhode Island would find that the substantial relationship
between Dietrich’s contacts with Rhode Island and Chew’s
death was more than sufficient to sustain personal jurisdiction
over Dietrich in this case.

IV. CONCLUSION

For the foregoing reasons the judgment of the District
Court is reversed and the case is remanded.

15a

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

Dkt No: 97-7476
Filed May 18, 1998 _

At a stated term of the United States Court of Appeals for
the Second Circuit, held at the United States Courthouse,
Foley Square, in the City of New York, on the fifteenth day of
May one thousand nine hundred and ninety-eight.

PATRICIA CHEW, Individually and as Administratix of the
Estate of Daren Chew, deceased and WILLIAM CHEW,

Plaintiffs-Appellants,
—_—Y—
BENT DIETRICH,

Defendant-Appellee.

A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by the
appellee Bent Dietrich.

Upon consideration by the panel that decided the appeal,
it is Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in banc
has been transmitted to the judges for the court in regular

16a

active service and to any other judge that heard the appeal and
that no such judge has requested that a vote be taken thereon.

FOR THE COURT

GEORGE LANGE III, Clerk

By: BETH J. MEADOR
Beth J. Meador,
Administrative Attorney

17a

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

No. 95 Civ. 10201 PKL.
Filed March 18, 1997.

PATRICIA CHEW and WILLIAM CHEw, individually; and
PATRICIA CHEW as Administratrix of the Estate of Daren
Chew, deceased,

Plaintiffs,

—_—V—

BENT DIETRICH,
Defendant.

JOHN A. CIRALDO, Perkins, Thompson, Hinckley & Keddy,
Portland, ME.

CARY R. WEINER, Kirlin, Campbell & Keating, New York,
NY.

MEMORANDUM ORDER

LEISURE, Judge.

This maritime action is brought under the Jones Act, the
Death on the High Seas Act, and general maritime law. Plain-

18a

tiffs’ decedent was lost overboard in international waters
while sailing a vessel owned by defendant on the return from
a yacht race from Newport, Rhode Island to Bermuda. Plain-
tiffs bring claims of negligence, wrongful death, and unsea-
worthiness. Defendant, a German citizen, brings a motion to
dismiss for lack of personal jurisdiction, pursuant to Rule
12(b)(2) of the Federal Rules of Civil Procedure. In the alter-
native, defendant moves for dismissal on forum non conve-
niens grounds, on the basis that German law must apply to the
action; and for partial summary judgment on the basis that the
Jones Act does not apply because no employer- employee
relationship existed between defendant and plaintiffs’ dece-
dent. For the reasons stated below, the motion to dismiss is
granted and the motions going to the merits are deemed moot.

BACKGROUND

Defendant Bent Dietrich, a German citizen residing in
Hamburg, Germany, owns the S/V Rainbow, a German reg-
istered yacht stored and maintained in Florida and used by
defendant for recreational racing. During the period from
1992 until the present, defendant has had sporadic contact
with the United States. From 1992 until 1993, he was the
nominal treasurer of a New York corporation.' In 1994, the
year of the accident underlying this action, he visited the
United States four or five times, for a total of forty-five days,
during which he spent his time preparing his yacht for races
along the East Coast. In 1995 and 1996, defendant visited
Florida, Rhode Island, and Maine on a number of visits for
vacation and for the purposes of recreational yacht racing.

Although this action was brought in this District on the basis of

plaintiffs’ good faith belief that defendant’s contacts with New York were
sufficient to support personal jurisdiction in this forum, plaintiffs now
concede that defendant is not subject to suit under New York’s long-arm
statute. See Pls.’ Mem. Opp. at 3 n. 2. Defendant nevertheless has con-
sented to this venue if the Court determines that he is subject to personal
jurisdiction under either New York’s or Rhode Island’s long-arm statutes.

19a

In June of 1994, defendant entered an amateur race from
Newport, Rhode Island to Bermuda.’ Prior to the race. Diet-
rich had hired Robert Sharkey in Florida as “boatsman,” and
Sharkeyhelped to pilot the boat from Florida to Newport,
where the boat was berthed for several days before the race.
The Rainbow was shorthanded and required additional crew
to enter the race. Plaintiffs’ decedent, Daren Chew (“Chew”),
a Rhode Island resident, signed on and was listed as a
crewmember on the entry form for the Newport-Bermuda race
submitted by defendant. The parties differ as to whether Diet-
rich and/or Sharkey as his agent approached and solicited
Chew to join the crew, or whether instead Chew, having heard
that the Rainbow needed extra hands, approached Sharkey
unilaterally to offer his services.

It is undisputed that defendant furnished certain amenities
to those who joined the Rainbow crew, including hotel
accommodations in Bermuda that had been arranged some
months before the race, and some meal expenses. Dietrich
also paid airfare for one crewmember who did not crew the
boat on the return trip from Bermuda. Plaintiffs characterize
the above arrangements as inducements to employment and
consideration for services, while defendant characterizes
them as gratuitous. Plaintiffs further allege that Chew was
promised $300 as compensation for acting as skipper on the
return leg, although defendant in his deposition testimony
denies ever discussing any compensation with Chew.

Sharkey skippered the boat to Bermuda, and was supposed
to skipper the boat on the return trip. However, Sharkey
instead returned to the United States by air, and Chew, as the
most experienced sailor on board, took over as skipper for the
Bermuda-Newport trip. Chew had previously sailed the
Bermuda race on a number of occasions.> On or about June

. “(T]he Newport-Bermuda race. . . is an amateur event which
bans compensation to crewmembers.” Def.’s Statement Pursuant to Local
Rule 3(g) 43; see Pl.’s Statement Pursuant to Local Rule 3(g) (admitting
defendant's statement).

The parties differ as to the number of trips Chew had sailed, and
as to whether Chew had ever been paid as a sailor on such trips. Compare

20a

29, 1994, Chew was lost overboard in international waters
during the return to Rhode Island. Chew’s parents, in their
individual capacities, and his mother, as administratrix of his
estate, brought the instant action. Before the Court are defen-
dant’s motions (1) for dismissal for lack of personal juris-
diction; (2) for dismissal on grounds of forum non
conveniens; and (3) for summary judgment as to the Jones
Act claim.

DISCUSSION

A plaintiff facing a Rule 12(b)(2) motion bears the burden
of showing that personal jurisdiction over the defendant is
properly exercised. In a case in which discovery has not been
conducted and no evidentiary hearing as to jurisdictional mat-
ters has been held, the plaintiff “need only allege facts con-
stituting a prima facie showing of personal jurisdiction,” and
the pleadings and affidavits must be construed in the non-
moving party’s favor. PDK Labs. Inc. v. Friedlander, 103 F.3d
1105, 1108 (2d Cir.1997) (citing Ball v. Metallurgie Hoboken-
Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990); CutCo
Indus., Inc. v. Naughton, 806 F.2d 361, 364-65 (2d Cir.1986));
accord Metropolitan Life Ins. Co. v. Robertson-Ceco Corp.,
84 F.3d 560,566-67 (2d Cir.), cert. denied, 117 S.Ct. 508
(1994).

The constitutional due process limits on the exercise of per-
sonal jurisdiction protect a nonresident defendant’s “liberty
interest in not being subject to the binding judgments of a
forum with which he has established no meaningful ‘contacts,
ties, or relations.’ ” Burger King Corp. v. Rudzewicz, 471 U.S.
462, 471-72, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting

Def.’s Statement Pursuant to Local Rule 3(g) 4.9 (“Daren Chew sailed
occasionally as a recreational sailor, including twice on other races to
Bermuda. On both these trips, however, he was not compensated for his
services.”) with Pls.” Statement Pursuant to Local Rule 3(g) 9.9 (“Daren
Chew sailed at least four times in Bermuda races. He was compensated
on each of those prior Bermuda trips.”) (citing William E. Chew Dep. at
7, 8, 10) (citations omitted).

2la

International Shoe v. Washington, 326 U.S. 310, 319, 66 S.Ct.
14, 90 L.Ed. 95 (1945)). Due process concerns about the
exercise of personal jurisdiction over a nonresident defendant
are satisfied if the defendant has sufficient “minimum con-
tacts” with the forum state and that such exercise of juris-
diction comport with “traditional notions of fair play and
substantial justice.” /nternational Shoe, 326 U.S. at 316
(quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339.
85 L.Ed. 278 (1940)) (internal quotation marks omitted).

Two varieties of personal jurisdiction have been labeled
“general jurisdiction” and “specific jurisdiction.” See Heli-
copteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408.
414, 104 S.Ct. 1868, 80 L.Ed.2d 404 nn. 8-9 (1984). These
two varieties differ mainly in the level of “minimum contacts”
required to satisfy the concerns stated in /nternational Shoe.
General jurisdiction requires “continuous and systematic”
contacts with the forum state. Id. at 415 (quoting Perkins v.
Benguet Consol. Mining, 342 U.S. 437, 438, 72 S.Ct. 413. 96
L.Ed. 485 (1952)) (internal quotation marks omitted). The
parties concede, and the Court agrees, that Dietrich’s contacts
with Rhode Island are too sporadic to support the exercise of
general personal jurisdiction. Therefore, only specific per-
sonal jurisdiction is at issue. In contrast to the “continuous
and systematic” contacts required for general jurisdiction, the
level of contact necessary to support specific jurisdiction is
satisfied “[w]hen a controversy is related to or ‘arises out of’
a defendant’s contacts with the forum.” /d. at 414 (quoting
Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569. 53
L.Ed.2d 683 (1977)).

The Court of Appeals for the First Circuit has formulated a
three-pronged approach to the due process inquiry as it
applies to the assertion of specific jurisdiction:4

" Because plaintiffs assert the exercise of personal jurisdiction

under Rhode Island's long-arm statute, the instant motion in effect
requires the Court to determine whether plaintiffs could have invoked the
Rhode Island district court’s personal jurisdiction over Dietrich had
plaintiffs chosen to institute action there rather than in this District.
Therefore, “although the constitutional requirements for due process are

Bi ac

22a

First, the claim underlying the litigation must directly
arise out of, or relate to, the defendant’s forum-state
activities. Second, the defendant’s in-state contacts must
represent a purposeful availment of the privilege of con-
ducting activities in the forum state, thereby invoking
the benefits and protections of that state’s laws and mak-
ing the defendant’s involuntary presence before the
state’s courts foreseeable. Third, the exercise of juris-
diction must, in light of the Gestalt factors, be reason-
able.

United Elec. Workers v. 163 Pleasant St. Corp., 960 F.2d
1080, 1089 (1st Cir.1992). Rhode Island’s long-arm statute,
the only ground of personal jurisdiction asserted by plaintiffs,
authorizes the exercise of personal jurisdiction to the full
extent permitted under the Constitution, and thus plaintiffs
need not satisfy any separate state law requirements. See R.I.
Gen. Laws § 9-5-33(a) (1985): Bendick v. Picillo, 525 A.2d
1310, 1312 (R.1.1987).

With respect to the first, so-called “relatedness” prong of
the test, other circuits’s tests also state a similar requirement
and there appears to be a split among the circuits as to the
degree of relatedness required in cases involving a tort which
occurred outside the forum but which is contended to arise
from contacts within the forum.’ See Nowak v. Tak How
Investments, Ltd., 94 F.3d 708, 714-15 (1st Cir.1996). Some
circuits have held that a proximate causal link between the in-
state contacts and the nonforum tort is required. See, e.g.,
Pearrow v. National Life & Accident Ins. Co., 703 F.2d

presumed to be uniformly applied throughout the federal court system,”
this opinion will focus on First Circuit authority, since that is the body
of precedent that would have been applied had plaintiffs brought suit in
the District of Rhode Island. Aerogroup Int'l. Inc. v. Marlboro Foot-
works. Ltd., No. 96 Civ. 2717, 1996 WL 735585, at *7 n. 14 (S.D.N.Y.
Dec.24, 1996).

5

Generally, courts have analogized the relatedness inquiry to the
issue of proximate causation in tort law. See, e.g., Russo v. Sea World,
709 F.Supp. 39, 42 (D.R.1.1989).

23a

1067,1069 (8th Cir.1983); Gelfland v. Tanner Motor Tours,
Ltd., 339 F.2d 317, 321-22 (2d Cir.1964).

Other circuits have suggested that “but for” causation is
sufficient. See, e.g., Shute v. Carnival Cruise Lines, 897 F.2d
377, 385 (9th Cir.1990), rev'd on other grounds, 499 U.S.
585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991); Prejean v.
Sonatrach, Inc., 652 F.2d 1260, 1270 n. 21 (5th Cir.1981).
The First Circuit generally requires a proximate causal nexus.
See Nowak, 94 F.3d at 715 (citing 163 Pleasant St. Corp., 960
F.2d at 1089).

In this case, the controversy revolves around an accident
that occurred outside the proposed forum, and therefore the
relatedness analysis must focus on whether the accident
“directly arise[s] out of, or relate[s] to,” Dietrich’s contacts
with Rhode Island in a manner sufficient to justify the exer-
cise of personal jurisdiction. Pritzker v. Yari, 42 F.3d 53, 60
(Ist Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1959,
131 L.Ed.2d 851 (1995). Plaintiffs fail to aver facts sufficient
to establish a prima facie nexus strong enough to uphold the
relatedness prong of the due process inquiry. Even taking as
true plaintiff's allegations that Dietrich—through the actions
of Sharkey, who was acting, plaintiffs contend, as Dietrich’s
agent—actively solicited Chew to join the Rainbow’s crew.
such solicitation is not linked in a proximate causal manner to
Chew’s later death. But for the alleged solicitation, Chew
arguably would never have boarded the Rainbow and hence
would not have been lost at sea. However, under the First Cir-
cuit’s case law, “but for” causation is not generally sufficient
to support specific jurisdiction. Cf. McAleer v. Smith, 715
F.Supp. 1153, 1157 (D.R.1.1989) (holding that the plaintiffs,
parents of sail trainees who drowned in the sinking of defen-
dant’s vessel, did not state a legally sufficient nexus by alleg-
ing that the defendant’s agent’s purported misrepresentations
with regard to the craft’s seaworthiness caused the tortious
conduct alleged by plaintiffs).°

6

The McAleer court, however, found that it could exercise
personal jurisdiction over the defendant by imputing to him his agent’s

24a

Notwithstanding the Nowak court’s observation that “the
proximate cause standard better comports with the relatedness
inquiry because it so easily correlates to foreseeability, a sig-
nificant component of the jurisdictional inquiry,” Nowak, 94
F.3d at 715, the opinion carves out a narrow exception to the
First Circuit’s general requirement of proximate causation:

The concept of proximate cause is critically important in
the tort context because it defines the scope of a defen-
dant’s liability. In contrast, the first prong of the juris-
dictional tripartite test is not as rigid: it is, “relatively
speaking, . . . a ‘flexible, relaxed standard.’ ” We see no
reason why, in the context of a relationship between a
contractual or business association and a subsequent tort,
the absence of proximate cause per se should always ren-
der the exercise of specific jurisdiction unconstitutional.

Id. (quoting Sawtelle v. Farrell, 70 F.3d 1381, 1389 (lst
Cir.1995)) (citations omitted). Plaintiffs argue that this excep-
tion applies to the instant action. This Court does not agree.

In Nowak, the plaintiffs’ decedent drowned in the swim-
ming pool of a Hong Kong hotel owned by the foreign defen-
dant, and the plaintiffs brought a wrongful death action
invoking the court’s personal jurisdiction under the Mas-
sachusetts long-arm statute. See id. at 711. The plaintiffs’
decedent was the wife of an employee of a Massachusetts cor-
poration that does extensive business in Hong Kong. See id.
The hotel had previously agreed to a corporate discount for
the corporation’s employees. See id. The hotel later directly
contacted the corporation. with promotional materials. See id.
In response to this contact, reservations were made for the

“continuous and systematic operations in Rhode Island” as a recruiter of
sail trainees. Jd. at 1158. In this case, plaintiffs similarly allege that
Sharkey, acting as Dietrich’s agent, solicited Chew. However, plaintiffs
fail to allege facts sufficient to justify exercise of either general or spe-
cific jurisdiction over the purported agent, and therefore no personal
jurisdiction over Sharkey exists to be imputed to Dietrich, regardless of
whether Sharkey indeed acted as Dietrich’s agent or indeed actively
solicited Chew.

25a

employee and his wife. See id. During that stay at the hotel,
the plaintiffs wife drowned. See id. In the context of these
facts, the court held that “[w]hen a foreign corporation
directly targets residents in an ongoing effort to further a
business relationship . . . it may not necessarily be unrea-
sonable to subject that corporation to forum jurisdiction when
the efforts lead to a tortious result.” Jd. at 715. The court
explicitly observed that in so holding, it was “recognizing a
narrow exception to the proximate cause test.” /d. at 716.
Defendant contends that the First Circuit’s exception should
apply only to corporate defendants and only in cases involv-
ing the solicitation of a business relationship. This Court does
not go so far as to agree with the first contention, but agrees
that both the language and the factual context of the Nowak
case strongly indicate that the holding narrowly applies to
“the context of a relationship between a contractual or busi-
ness association and a subsequent tort.” Jd. at 715 (emphasis
added); see also id. at 716 (referring to a defendant’s “ongo-
ing effort to further a business relationship”) (emphasis
added). Plaintiff's case does not readily fit into this exception
because it is not alleged that either defendant or his purported
agent directed commercial activity at the forum state. Dietrich
did not enter a “contractual or business association” in Rhode
Island that was followed by a “subsequent tort.”’ Thus. piain-
tiffs have not established a sufficient nexus to satisfy the
relatedness prong of the specific jurisdiction inquiry.
Because it has been determined that defendant’s contacts
with the forum state were not sufficiently related to the torts
alleged in this action, the Court need not reach the other

r Dietrich did sign the entry forms to enter the Rainbow in the

Newport-Bermuda race and fax those forms to the forum state. but plain-
tiffs have not alleged facts to support an inference that such entry rep-
resents a “contractual or business association.” The race was. by its
terms, an amateur event. See Def.’s Statement Pursuant to Local Rule
3(g) 913; Pl.’s Statement Pursuant to Local Rule 3(g) 4.3. Furthermore,
plaintiffs do not apparently dispute that defendant engaged in yacht rac-
ing as a recreational sport and not as a business-related activity.

26a

prongs of the due process analysis in reaching the conclusion
that the exercise of personal jurisdiction in this case is inap-
propriate. Further, because the Court holds that it lacks in per-
sonam jurisdiction over Dietrich, the Court need not reach
defendant’s motions in the alternative for dismissal on forum
non conveniens grounds or for summary judgment as to the
Jones Act claim.

CONCLUSION

Accordingly, for the reasons stated in the foregoing, defen-
dant’s motion to dismiss for !ack of personal jurisdiction is
HEREBY GRANTED. Defendant’s motions in the alternative
for dismissal or partial summary judgment are HEREBY
DENIED as moot.

SO ORDERED

27a

U.S. CONST. amend. V

No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War
or public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb: nor shall
be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for
public use, without just compensation.

28a

U.S. CONST. amend. XIV, § 1

Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.

29a

28 U.S.C.A. § 2072

§ 2072. Rules of procedure and evidence; power to pre-
scribe

(a) The Supreme Court shall have the power to prescribe
general rules of practice and procedure and rules of evidence
for cases in the United States district courts (including pro-
ceedings before magistrates thereof) and courts of appeals.

(b) Such rules shall not abridge, enlarge or modify any
substantive right. All laws in conflict with such rules shall be
of no further force or effect after such rules have taken effect.

(c) Such rules may define when a ruling of a district court
is final for the purposes of appeal under section 1291 of this
title.

30a

FED. R. Civ. P. 4(k)

(k) Territorial Limits of Effective Service.

(1) Service of a summons or filing a waiver of service is
effective to establish jurisdiction over the person of a defen-
dant

(A) who could be subjected to the jurisdiction of a
court of general jurisdiction in the state in which the dis-
trict court is located, or

(B) who is a party joined under Rule 14 or Rule 19
and is served at a place within a judicial district of the
United States and not more than 100 miles from the
place from which the summons issues, or

(C) who is subject to the federal interpleader juris-
diction under 28 U.S.C. § 1335, or

(D) when authorized by a statute of the United States.

(2) If the exercise of jurisdiction is consistent with the
Constitution and laws of the United States, serving a sum-
mons or filing a waiver of service is also effective, with
respect to claims arising under federal law, to establish per-
sonal jurisdiction over the person of any defendant who is not
subject to the jurisdiction of the courts of general jurisdiction
of any state.

3la

R. I. GEN. LAWs § 9-5-33 (1956)

9-5-33 Jurisdiction over foreign corporations and over non-
resident individuals, partnerships, or associations.

(a) Every foreign corporation, every individual not a res-
ident of this state or his or her executor or administrator. and
every partnership or association, composed of any person or
persons not such residents. that shall have the necessary min-
imum contacts with the state of Rhode Island, shall be subject
to the jurisdiction of the state of Rhode Island, and the courts
of this state shall hold such foreign corporations and such
nonresident individuals or their executors or administrators.
and such partnerships or associations amenable to suit in
Rhode Island in every case not contrary to the provisions of
the constitution or laws of the United States.

(b) Service of process may be made on any such foreign
corporation, nonresident individual or his or her executor or
administrator, and such partnership or association within or
without the state in the manner provided by any applicable
procedural rule or in the manner prescribed by order of the
court in which the action is brought.

(c) Nothing herein shall limit or affect the right to serve
process upon the nonresident individual or his or her execu-
tor or administrator, or the partnership or association, or a
foreign corporation within this state or without this state in
any manner now or hereafter permitted by law.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1451%3A1. Public record. Not legal advice.