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NICOLAISEN v. TOEI SHIPPING CO.

March 10, 1989

FREDERICK C. NICOLAISEN, Plaintiff,
v.
TOEI SHIPPING COMPANY, LTD., et al., Defendants



The opinion of the court was delivered by: WOLIN

 In this maritime case, defendant Toei Shipping Co., Ltd. ("Toei") moves, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, to dismiss the complaint of plaintiff Frederick C. Nicolaisen for lack of personal jurisdiction and insufficiency of service of process. In the alternative, defendant moves for the Court to dismiss the action on forum non conveniens grounds. For the reasons set forth below, defendant's motion to dismiss for lack of personal jurisdiction will be granted.

 I. BACKGROUND

 With a fact pattern that would make any law school professor proud, this case effectively spans the globe in terms of its geographic contacts. The case poses the intriguing jurisdictional question of whether an American who now resides in Texas and who was injured in Panama, can bring a suit (transferred from Louisiana) against a Japanese ship owner in the forum of New Jersey.

 The saga begins on September 9, 1983 in Balboa Anchorage, Panama, where plaintiff had resided and worked for 12 years as an admeasurer for the Panama Canal Commission of the United States government. Plaintiff was attempting to board an ocean-going Japanese vessel, the M/V TAMA REX ("TAMA REX"), from a Panama Canal Commission launch vessel. Apparently, a rope ladder gave way causing plaintiff to fall back onto the launch. As a result of the fall, plaintiff suffered serious injuries.

 The TAMA REX is owned by Toei, a Japanese corporation with its principal place of business and base of operations outside of the United States. At the time of plaintiff's injury, the TAMA REX was operating under a 7-1/2 year time charter with Reefer Express Lines Propriety, Ltd., ("Reefer Express"), a Bermudian corporation with an office in New Jersey. The time charter took effect upon delivery of the new vessel to Toei. It is undisputed that, as is the practice, Reefer Express, as time charterer, directed where the TAMA REX would make port and what the crew, furnished by Toei, would do. Pursuant to Reefer Express' instructions, the TAMA REX made 17 port calls to New Jersey from 1980 to 1984: three in 1980, three in 1981, nine in 1982, one in 1983, one in 1984. Since January 21, 1984, the TAMA REX has made no port calls to New Jersey. The TAMA REX continues to be under time charter to Reefer Express, which has an option to buy the vessel.

 On March 2, 1984, plaintiff filed suit in the United States District Court for the Eastern District of Louisiana. On July 3, 1986, in response to defendants' motion to dismiss, Judge Marcel Livaudais, Jr. of the Eastern District of Louisiana ordered the action transferred to the District of New Jersey.

 Defendant now moves to dismiss the action for lack of personal jurisdiction, insufficient service of process *fn1" and, in the alternative, for dismissal based on the ground of forum non conveniens.

 II. DISCUSSION

 In cases where the defendant has properly raised a jurisdictional defense, "the plaintiff bears the burden of demonstrating contacts with the forum state sufficient to give the court in personam jurisdiction." Time Share Vacation v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984) (quoting Compagnie des Bauxites de Guinee v. L'Union, 723 F.2d 357, 362 (3d Cir. 1983)). Even though this is a nondiversity case, the Court can exercise jurisdiction over Toei only to the extent New Jersey's long-arm rule, New Jersey Court Rule 4:4-4, authorizes services of process on out-of-state defendants such as Toei. DeJames v. Magnificence Carriers, Inc., 654 F.2d 280 (3d Cir.), cert. denied, 454 U.S. 1085, 102 S. Ct. 642, 70 L. Ed. 2d 620 (1981). New Jersey's long-arm rule has been interpreted as permitting out-of-state service "to the uttermost limits permitted by the United States Constitution." Charles Gendler & Co. v. Telecom Equipment Corp., 102 N.J. 460, 469, 508 A.2d 1127, 1131 (1986). Therefore, this Court can exercise jurisdiction over Toei only if plaintiff can demonstrate that Toei's contacts with New Jersey are sufficient enough to satisfy the Due Process clause of the United States Constitution.

 A plaintiff can meet the burden of demonstrating sufficient contacts between the forum and the defendant in two distinct manners. In Dollar Savings Bank v. First Security Bank of Utah, the court explained that:

 
Personal jurisdiction over a nonresident defendant may be asserted in two situations. The first, 'general jurisdiction,' exists when the claim does not arise out of or is unrelated to the defendant's contacts with the forum. [Citations omitted.] The second, 'specific jurisdiction,' is invoked when the claim is related to or arises out of the defendant's contacts with the forum. [Citations omitted.]

 746 F.2d 208, 211 (3d Cir. 1984) (footnote omitted).

 If a plaintiff's claim is related to or arises out of the defendants' contacts with the forum, "specific jurisdiction" may be found if the defendant has sufficient minimum contacts with the forum. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945). In the present case, it is undisputed that plaintiff's injury occurred in Panama, and was completely unrelated to any of Toei's contacts with New Jersey. Therefore, the principle of specific jurisdiction is ...


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