Star to ship certain of its products to the United States; and, (2) the testimony by Mr. Schultz that Weddel has shipped cargo on every A.C.T./Blue Star vessel destined for the United States between 1985 and 1991, and that every "Philadelphia"-destined A.C.T./Blue Star vessel actually discharged at A.C.T.'s terminal in New Jersey, and that therefore Weddel knew its cargo was destined for New Jersey, I find for purposes of the present motion that Weddel's actions with respect to New Jersey constitute a purposeful availment of New Jersey, the forum state.
As indicated above, notwithstanding Weddel's purposeful availment of the forum state, an additional inquiry remains -- namely, whether this court's assertion of personal jurisdiction over Weddel comports with "'traditional notions of fair play and substantial justice'" so as not to offend due process. International Shoe, 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 61 S. Ct. 339 (1940)). In Asahi, a majority of the court agreed that this second requirement was not satisfied. Asahi, 480 U.S. at 114-17. Like Asahi, the instant case involves a defendant located virtually the greatest possible distance from the forum state. But unlike the situation in Asahi, the present case arises out of an underlying transaction involving the defendant which is alleged to have transpired in the forum state. Moreover, the interest of the forum state in the present case is significantly greater than the interest of the forum state in Asahi, because in Asahi the plaintiff's claim against the defendant, the purchaser of the defective component part at issue, had been settled and all that remained was a claim for contribution by the defendant purchaser of the component part against the foreign seller of the part. Finally, as the court noted in Asahi, "when minimum contacts have been established, often the interests of the plaintiff and the forum in the exercise of jurisdiction will justify even the serious burdens placed on the alien defendant." Id. at 114.
In this case arising from the defendant's allegedly negligent packing of its shipment of beef to New Jersey, which was one of a long course of such shipments to New Jersey, and in light of the establishment of minimum contacts of Weddel with New Jersey and the interest of New Jersey in the safety and welfare of its workers, the court finds that the assertion of personal jurisdiction over Weddel does not offend "traditional notions of fair play and substantial justice." The court thus exercises specific jurisdiction over defendant Weddel in this matter. Defendant Weddel's motion to dismiss for lack of personal jurisdiction will, accordingly, be denied.
B. Subject Matter Jurisdiction
Weddel argues that, in addition to a lack of personal jurisdiction over it, the court lacks jurisdiction over the subject matter. The basis for this objection is plaintiffs' failure to include a statement regarding the grounds for subject matter jurisdiction in its amended federal complaint in this action, as required by Fed. R. Civ. P. 8(a). Plaintiffs acknowledge their complaint was "inartfully prepared," but argue that the court should permit them to cure this possible defect by amendment. It appears to the court that the omission can in fact be cured by amendment because diversity jurisdiction does exist; Weddel does not dispute the factual basis for the court's exercise of subject matter jurisdiction.
Because this defect would be cured by amendment asserting diversity jurisdiction under 28 U.S.C. § 1332, the court will not dismiss the case for lack of subject matter jurisdiction. See Smith v. McCullough, 270 U.S. 456, 459, 70 L. Ed. 682, 46 S. Ct. 338 (1926).
C. Statute of Limitations
Having determined for present purposes that this court may properly exercise jurisdiction over the subject matter and personal jurisdiction over Weddel, I proceed to analyze Weddel's argument in favor of dismissal on statute of limitations grounds. For the reasons which follow, Weddel's motion will be denied.
I turn first to the issue of the relevant law to be applied to the statute of limitations question. Weddel suggests that New Jersey law governs, and that New Jersey's two year statute of limitations for tort actions, N.J.S.A. 2A:14-2, precludes plaintiffs from proceeding against it, as the amended complaint was filed on March 26, 1993, more than two years from the date of the accident on August 21, 1990. Although plaintiffs do not dispute that New Jersey law applies, co-defendant A.C.T./Blue Star has offered an argument that the applicable statute is the federal maritime statute of limitations, 46 U.S.C. § 763, and that since the maritime statute provides for a three year limitations period, plaintiffs' claims against Weddel survive. Plaintiffs have not joined in this argument.
It is significant that the maritime limitations argument is propounded solely by co-defendant A.C.T./Blue Star because, unlike certain other choice of law issues, the application of maritime law to a plaintiff's claims is a matter about which a plaintiff exercises a degree of control. See Fed. R. Civ. P. 9(h).
That is, assuming without deciding that maritime jurisdiction is available for plaintiffs' claims, it must be affirmatively invoked by plaintiffs before it will be considered by the court to be the basis of jurisdiction where other bases of jurisdiction over plaintiff's claims also exist. See Bodden v. Osgood, 879 F.2d 184, 186 (5th Cir. 1989) ("A plaintiff with a claim cognizable in the district court's admiralty/maritime jurisdiction and also cognizable on another basis of jurisdiction may invoke whichever jurisdiction he desires . . . . To invoke the admiralty jurisdiction, a plaintiff must insert a statement in his pleading identifying the claim [as such] . . . . Otherwise, unless the claim is cognizable only in admiralty, the special practice features for admiralty claims are not applicable") (citations omitted); Harrison v. Glendel Drilling Co., 679 F. Supp. 1413, 1418 (W.D. La. 1988) ("Where the complaint shows that both admiralty and some other basis of federal jurisdiction exist, the plaintiff must employ an 'identifying statement' in accordance with Rule 9(h) in order to be entitled to the special benefits afforded to admiralty litigants under the Federal Rules of Civil Procedure and the Supplemental Rules for Certain Admiralty and Maritime Claims.").
An examination of plaintiffs' amended complaint reveals that the court has jurisdiction over the matter based on the diversity of the parties and, moreover, that diversity jurisdiction is the basis of jurisdiction invoked by plaintiffs. This case was originally filed in New Jersey Superior Court and removed by codefendant A.C.T/Blue Star to federal court on the basis of diversity jurisdiction; it is not disputed that the parties are indeed diverse.
No Rule 9(h) statement appears in plaintiffs' amended complaint, and even in light of the present argument in opposition to Weddel's motion, plaintiffs have not sought leave to amend to include a Rule 9(h) statement in their complaint. Moreover, plaintiffs' original complaint contains a demand for a jury trial, a demand inconsistent with any alleged election by plaintiffs to proceed under maritime jurisdiction. See Fed. R. Civ. P. 38(e). Thus, because maritime jurisdiction is not the sole available basis of jurisdiction, and because it is clear that plaintiffs have not chosen to invoke the maritime jurisdiction of the court, I reject co-defendant A.C.T./Blue Star's argument for application of the maritime statute of limitations as inappropriate without engaging in an analysis of whether maritime jurisdiction could in fact be invoked. Such an analysis would only be appropriate if the argument espoused by the co-defendant were joined in by plaintiffs and accompanied by at least an indication that plaintiffs wished to amend their amended complaint.
Turning to the application of the New Jersey personal injury statute of limitations at N.J.S.A. 2A:14-2, which plaintiffs and Weddel apparently agree applies here, plaintiffs argue that their claims against Weddel are not barred despite being asserted more than two years from the date of the accident. Although plaintiffs do not mention the relevant Federal Rule of Civil Procedure in their letter brief, it appears that plaintiffs are propounding an argument under Rule 15(c), Fed. R. Civ. P. As will be discussed in detail below, where state law provides the relevant limitations period, Rule 15 permits, under certain circumstances, the "relation back" of an amended pleading beyond the limitations period where the state limitations law would permit relation back. It is apparently plaintiffs' position that New Jersey limitations law, specifically New Jersey's fictitious pleading statute, permits relation back of an amendment naming a defendant in the place of a fictitious defendant under the circumstances presented, and that therefore the federal rules must permit the amendment of plaintiffs' complaint beyond the otherwise applicable New Jersey limitations period to include Weddel as a defendant.
Rule 15(c)(1), Fed. R. Civ. P., as amended effective December 1, 1991, provides:
An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action.
Id. Without citing any pertinent authority, Weddel argues that this subparagraph of Rule 15 pertains only to situations other than amendment to include a party not properly named in the original pleading.
However, Rule 15(c)(1) is not, by its terms, so limited; nor is the court aware of any case law which so limits the rule's operation. It may be that Weddel is conflating the provisions of newly-added Rule 15(c)(1) with Rule 15(c)(3) as amended, which provides that an amendment of a pleading may relate back when:
the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied [i.e., where the claim asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading] and, within the period of Rule 4(j) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.