Opposition Brief — Dietrich v. Chew

> Supreme Court, U.S.

742 ED

No. 98-298

SEP_17 1998

. OFEICE OF THE CLERK

In The ibinleGail

Supreme Court of the United States

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October Term, 1997

BENT DIETRICH,

Petitioner,

VS.

PATRICIA CHEW, Individually and as Administratrix of the

Estate of Daren Chew, deceased and WILLIAM CHEW,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JOHN A. CIRALDO

Counsel of Record

DAVID B. McCONNELL

PERKINS, THOMPSON, HINCKLEY

& KEDDY, P.A.

Attorneys for Respondents

One Canal Plaza, P.O. Box 426

Portland, ME 04112-0426

(207) 774-2635

148578 €] Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 « (800) 359-6859

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TABLE OF CONTENTS

Page

Table of Cited Authorities .............-. eee eee: il

There is No Compelling Reason to Grant the Writ ... 1

The Question Presented for Review Reflects Petitioner’s

Fundamental Misunderstanding of the Court of

Appeals’ Decision .............6e ee eee eeeeeees 2

I. The Court Of Appeals Did Not Disregard First

Circuit Precedent In Holding That Dietrich Is Subject

To Jurisdiction Pursuant To Rule 4(k)(1). ...... 3

II. The Second Circuit Did Not Disregard Rhode Island

Precedent In Holding That Dietrich Is Subject To

Jurisdiction Pursuant To Rule 4(k)(1). ........- 6

Ill. The Second Circuit Did Not Conflate The Separate

Provisions of Rule 4(k)(1) and 4(k)(2) ......... 7

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TABLE OF CITED AUTHORITIES

Cases:

Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)

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Page

Chew v. Dietrich, 143 F.3d 24 (2™ Cir. 1998) ..2, 4, 5, 6, 7, 8

McKenney v. Kenyon Piece Dye Works, Inc., 582 A.2d

107 CRE. 1900}... eS ea ee

Messier v. Belisle, 640 A.2d 959 (R.I. 1994) ........

Nowak v. Tak How Investments, Ltd., 94 F.3d 708 (1"

Cir. 1996), cert. denied, _U.S. __, 117 S. Ct. 1333

(907) si lie oe SS eee pekinese

PDK Labs., Inc. v. Friedlander, 103 F.3d 1105 (2™ Cir.

FOOT) ci cuss Cover eeeae as eee ee ea

Roger Williams Gen. Hosp. v. Fall River Trust Co., 423

A.28 13506 GRA, IGOR ook oan iy ewe

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286

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Rules:

Federal Rules of Civil Procedure 4(k) ..............

Federal Rules of Civil Procedure 4(k)(1) ...... y ex ae

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Table of Cited Authorities

Page

Federal Rules of Civil Procedure 2 Sa pee Ae ae

TRIBES Sinaia Hs Sa Sa gk i kgaeo

I Gey i 1, 6, 7,8

1

THERE IS NO COMPELLING REASON

TO GRANT THE WRIT

“A petition for a writ of certiorari will be granted only for

compelling reasons.” Sup. Ct. R. 10. Although the list is not

exclusive, Rule 10 includes a number of examples which

“indicate the character of the reasons the Court considers”

compelling. /d.

Among the reasons listed is one in which “a United States

court of appeals has entered a decision in conflict with the

decision of another United States court of appeals on the same

important matter....” /d. at 10(a). Petitioner Bent Dietrich

(“Dietrich”) relies on this rationale to invoke the jurisdiction

of the Court, saying that

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.”

Petition For Writ of Certiorari at 1 (heretnafter “Petition at

paras ©

Contrary to Dietrich’s assertion, as discussed below, the

Second Circuit made its finding that Dietrich is subject to

personal jurisdiction with specific reference to the law of the

First Circuit. Ultimately, its decision was a necessarily

factbound determination which is neither in conflict with First

Circuit law nor appropriate for review on a writ of certiorari.'

1. The Petition does not explicitly rely in the alternative on any of

the other compelling reasons for review listed in Rule 10. In fact, none

of those other reasons are implicated by the Second Circuit’s decision.

2

Rule 10 states that “[a] petition for a writ of certiorari is

rarely granted when the asserted error consists of erroneous

factual findings or the misapplication of a properly stated rule

of law.” Sup. Ct. R. 10. As discussed below, the language of

the appellate decision reveals no misstatement of law. Dietrich’s

bare belief that the Second Circuit reached the wrong conclusion

as to his amenability to personal jurisdiction does not justify

the review mechanism of certiorari.

THE QUESTION PRESENTED FOR REVIEW

REFLECTS PETITIONER’S FUNDAMENTAL

MISUNDERSTANDING OF THE COURT OF

APPEALS’ DECISION

In presenting the question for review by this Court, Dietrich

states, inter alia, that:

[T]he 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

jurisdiction. ...

Petition at 1.

Contrary to Dietrich’s characterization of the opinion which

is the subject of this Petition, the Court of Appeals explicitly

stated that it had analyzed 4(k)(1) and 4(k)(2) separately, and

that in this case Dietrich is subject to jurisdiction according to

the independent application of either sub-paragraph of Rule

4(k). See Chew v. Dietrich, 143 F.3d 24, 30 (2™ Cir. 1998).

(“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.”) (Emphasis supplied).

3

Although Dietrich may disagree with the conclusion reached

by the Court of Appeals, its opinion neither implicitly nor

explicitly states that the Second Circuit read 4(k)(1) and 4(k)(2)

together to find personal jurisdiction.

Read fairly, the Second Circuit’s decision does not present

the question which was formulated by Dietrich in his petition.

Rather, Dietrich is actually calling upon this Court to review a

fact-bound decision of the Second Circuit that Dietrich is

subject to jurisdiction under either Rule 4(k)(1) or 4(k)(2).

Based on his critical misinterpretation that the Second

Circuit melded the 4(k) inquiry into a single standard, Dietrich

80es on to construct an argument that the Second Circuit

disregarded First Circuit and Rhode Island law and construed

Rule 4(k) so as to violate the Rules Enabling Act.? See Petition

at 5-9. Because Dietrich’s initia] assertion is incorrect, however,

his conclusions are fatally flawed. In fact, when Dietrich’s

mistake is corrected, this Court is not faced with any of the

errors described in the Petition, nor is any other issue presented

which is either consistent with the examples enumerated in Sup.

Ct. R. 10 or with this Court’s underlying principles of review.

The alieged errors are discussed briefly below:

I,

THE COURT OF APPEALS DID NOT DISREGARD

FIRST CIRCUIT PRECEDENT IN HOLDING THAT

DIETRICH IS SUBJECT TO JURISDICTION PURSUANT

TO RULE 4(k)(1).

At several junctures in his petition, Dietrich claims that

the Second Circuit ignored First Circuit precedent in applying

2. Dietrich actually asserts four errors. However, as described in

footnote 4, two of the alleged errors are addressed together in Part Il.

4

its own standards of due process to the jurisdictional analysis.

For example, Dietrich claims that

the Second Circuit explicitly refrained from

reversing 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 exclusion of the First

Circuit’s.

Petition at 7. Dietrich goes on to claim that “the Second Circuit

effectively admitted that its decision was inconsistent with First

Circuit precedent” as it relates to the question of proximate

cause. /d. at 12.

In fact, the Second Circuit discussed the relatedness test

with specific reference to First Circuit law:

Where the defendant’s contacts with the jurisdiction

that relate to the cause of the action are more

substantial . . . 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.

This type of distinction appears to have been

recognized even in the First Circuit which, by its

own assessment, is considered to be one of the

strongest proponents of the proximate cause test.

Chew, 143 F.3d at 29 (citing Nowak v. Tak How Investments,

Ltd., 94 F.3d 708, 715-16 (1* Cir. 1996), cert. denied, __ U.S.

__, 117 S. Ct. 1333 (1997)). The court went on to discuss the

flexibility of the relatedness concept as described by the First

Circuit in Nowak.

5

The Second Circuit concluded its discussioa of relatedness

by saying that given the Significance and purposefulness of

Dietrich’s contacts with Rhode Island, those state contacts were

enough to support the constitutional exercise of personal

jurisdiction pursuant to the 4(k)(1) analysis.* Chew, 143 F.3d

3. Dietrich’s Statement of the Case suggests that Daren Chew

(“Chew”) was an unpaid volunteer why sought out the Opportunity to

sail on the RAINBOW, then goes on to say that

[i]t is immaterial for purposes of this appeal whether

Sharkey [Dietrich’s hired “boatsman”] actively recruited

Chew in Newport or whether Chew learned of the

Opportunity to sail aboard the RAINBOW through other

means,

claiming further that “neither this finding nor any [of the District Court’s]

findings of fact were disturbed during appellate review.” Petition at 2.

Quite to the contrary, the Second Circuit relied on the fact (among other

relevant contacts) that Dietrich recruited Chew in holding that Dietrich

was subject to personal jurisdiction:

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 .. . 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.

Chew, 143 F.3d at 30 (citing World-Wide Volkswagen Corp. y. Woodson,

444 U.S. 286, 297 (1980)). Indeed, the Second Circuit's finding that

Dietrich recruited Chew was in keeping with the requirement that the

factual allegations relating to jurisdiction must be construed in the

plaintiff's favor when, as in this case, no evidentiary hearing had been

held as to jurisdictional matters. PDK Labs., Inc. y. Friedlander, 103

F.3d 1105, 1108 (2 Cir. 1997) (citations omitted).

6

at 30. The Second Circuit’s conclusion is consistent with First

Circuit law on this point, and the extensive discussion of the

First Circuit law of relatedness makes it clear that the Second

Circuit’s decision is not “in conflict with the decision of another

United States court of appeals on the same important

matter. ...” Sup. Ct. R. 10(a).

Il.

THE SECOND CIRCUIT DID NOT DISREGARD

RHODE ISLAND PRECEDENT IN HOLDING THAT

DIETRICH IS SUBJECT TO JURISDICTION PURSUANT

TO RULE 4(k)(1).

Dietrich relies on two Rhode Island cases which it claims

“point unerringly to the conclusion that personal jurisdiction

would not have attached in state court under these

circumstances.” Petition at 10. However, the determination as

to whether jurisdiction may be found in any given circumstance

is necessarily factbound and the pair of cases cited by Dietrich

are readily factually distinguishable from the instant case.* See

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 485 (1985).

Dietrich makes much of the fact that the torts at issue in

Messier v. Belisle, 640 A.2d 959 (R.I. 1994) and Roger Williams

Gen. Hosp. v. Fall River Trust Co., 423 A.2d 1384 (R.I. 1984)

took place outside of Rhode Island. However, the place of the

4. The issue as to whether the Rhode Island long-arm statute could

bring Dietrich within its grasp based on Dietrich’s Rhode Island contacts

addresses both Dietrich’s contention that jurisdiction should not lie based

on Rhode Island law, and his claim that the Second Circuit wrongly

applied its own Due Process standard without regard to Rhode Island

precedent. As described below, even if the Second Circuit had ignored

Rhode Island law on this point (which it did not), the result is entirely

consistent with Rhode Island law.

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7

tort is not the determinative factor in the jurisdictional inquiry.

See McKenney y. Kenyon Piece Dye Works, Inc., 582 A.2d 107

(R.I. 1990) (finding that the single jurisdictional contact of a

German manufacturer that sold a machine to a Maine company

through a Rhode Island distributor twenty years prior to an

accident in Maine which injured a Maine plaintiff was sufficient

to support the exercise of jurisdiction in Rhode Island under

the state’s long-arm statute). The nature and purposefulness of

the contacts is the crux of the inquiry, and “ ‘all that need be

shown for jurisdiction to be proper is a relationship among the

defendant, the forum and the litigation.’ ” Chew, 143 F.3d at

30 (quoting McKenney, 582 A.2d at 108). The Second Circuit

found that given “the substantial relationship between Dietrich’s

contacts with Rhode Island and Chew’s death,” the Supreme

Court of Rhode Island would find the contacts “more than

sufficient to sustain personal jurisdiction over Dietrich in this

case.” Chew, 143 F.3d at 31. While it would have been

impossible for the Second Circuit to predict with certainty the

outcome under Rhode Island law, its decision was well-reasoned

and consistent with Rhode Island precedent. Neither of the cases

cited by Dietrich leads to the conclusion that the Second Circuit

“has decided an important federal question in a way that

conflicts with a decision by a state court of last resort... .”

Sup. Ct. R. 10(a).

Ill.

THE SECOND CIRCUIT DID NOT CONFLATE THE

SEPARATE PROVISIONS OF RULE 4(k)(1) AND 4(k)(2).

Dietrich claims that the Second Circuit has conflated the

separate provisions of Rule 4(k) such that its decision violates

the Rules Enabling Act. Petition at 8-9. Dietrich appears to

reach this conclusion based in large part on his own

characterization of his non-Rhode Island contacts as so

8

“insubstantial and causally unrelated to the alleged tort, [that]

the Second Circuit could not have relied on these additional

contacts in finding personal jurisdiction” under a separate

4(k)(2) analysis. Jd. at 6; id. at 17.

The Second Circuit did not subscribe to Dietrich’s

characterization, however, finding those contacts sufficiently

purposefut and related to subject Dietrich to jurisdiction by

virtue of the independent application of 4(k)(2), even if he were

not already subject to 4(k)(1) jurisdiction:

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

relates to the operation of the yacht and concerns

injuries to a crew member recruited in the United

States.

Chew, 143 F.3d at 30.

Clearly, the Second Circuit found Dietrich’s United States

contacts to be significant enough to warrant jurisdiction. Just

as Clearly, the Court of Appeals stated that this 4(k)(2) finding

was made in the alternative, if the Rhode Island contacts under

the 4(k)(1) analysis were insufficient to support jurisdiction.

See id. at 28. The Second Circuit’s analysis of 4(k) neither

“decided an important federal question in a way that conflicts

with relevant decisions of this Court” nor did it “so far depart{ ]

from the accepted and usual course of judicial proceedings...

as to call for an exercise of this Court’s supervisory power... .”

Sup. Ct. R. 10(c); id. at (a).

EE Fe

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CONCLUSION

For the foregoing reasons, Respondents ask that this Court

deny the Petition for Writ of Certiorari submitted by Petitioner

Bent Dietrich.

Respectfully submitted,

JOHN A. CIRALDO

Counsel of Record

DAVID B. McCONNELL

PERKINS, THOMPSON. HINCKLEY

& KEDDY, P.A.

Attorneys for Respondents

One Canal Plaza, P.O. Box 426

Portland, ME 04112-0426

(207) 774-2635

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