Johnson v. Polarstream Maritime, Inc. et al

MOTION to dismiss for lack of jurisdiction

M.D. Fla.February 23, 2017

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION WALTER JOHNSON, Plaintiff, v. No. 8:16-cv-2801-MSS-AAS POLARSTREAM MARITIME, INC., as Owner, and SEATRADE GRONINGEN, BV, as Owner Pro Hac Vice of M/V POLARSTREAM, its engines, tackle, apparel, etc., Defendants. ________________________________________/ DEFENDANT POLARSTREAM MARITIME, INC.’S MOTION TO DISMISS Defendant Polarstream Maritime, Inc. (“PMI”), moves under Rules 12(b)(2) and (5) of the Federal Rules of Civil Procedure to dismiss for lack of personal jurisdiction and insuf- ficient service of process. THE COMPLAINT In this personal-injury action, the plaintiff sues for negligence under the Longshore and Harbor Workers Compensation Act, 33 U.S.C. §§ 905 & 933. (Doc. 1, ¶ 9.) The Com- plaint alleges that the plaintiff was injured on December 30, 2013, aboard the M/V PO- LARSTREAM, “a commercial cargo vessel which loaded and discharged cargo,” while the vessel “was afloat in the navigable waters of Port Manatee, Florida.” (Doc. 1, ¶¶ 4, 7-9.) As the basis for personal jurisdiction against PMI, the Complaint alleges that PMI, “a foreign corporation, organized and existing under the laws of a foreign country,” “maintain[ed] an office and/or carr[ied] on business in Port Manatee, Florida, and was the owner, operator Case 8:16-cv-02801-MSS-AAS Document 10 Filed 02/23/17 Page 1 of 9 PageID 56 2 and/or otherwise in control of M/V POLARSTREAM.” (Doc. 1, ¶ 2.) As explained below and evidenced in the attached declaration, PMI did not maintain an office or carry on busi- ness in Port Manatee and was not the owner or the operator or otherwise in control of the M/V POLARSTREAM. THE M/V POLARSTREAM In January, 2006, Polarstream Schifffahrtsgesellschaft mbH & Co. KG (“Schifff”), which is not a defendant in this action, became the legal and beneficial owner of the M/V POLARSTREAM. Declaration of Dale Rolfe, ¶ 8, attached as Exhibit 1. Also in January 2006, Schifff entered a bareboat charter with PMI, a foreign entity incorporated in Liberia and existing under Liberian law. Rolfe Dec., ¶ 11. The same month, PMI bareboat char- tered the vessel back to Schifff, through a bareboat charter party identical to the previous one (the “PMI-Schifff Charter Party”). Rolfe Dec., ¶ 12, exh. D. The PMI-Schifff Charter Party states, “The Vessel shall during the Charter period be in the full possession and at the absolute disposal for all purposes of the Charterers [Schiff] and under their complete control in every respect.” Rolfe Dec. ¶ 12, Exh. D, ¶ 9. Thereafter, Schifff entered the M/V POLARSTREAM into a pool agreement with Seatrade Group, N.V., which is not a defendant in this action. Rolfe Dec., ¶ 13. Seatrade Group, N.V., serves as a commercial operator and pool manager on behalf of Schifff. Rolfe Dec., ¶ 13. Seatrade Group, N.V., brokers employment for the vessel and enters the vessel into time charters, voyage charters, and other commercial arrangements with third parties. Rolfe Dec., ¶ 13. Thus, on December 30, 2013, when the plaintiff’s injury allegedly oc- curred, PMI was not possessing, commanding, operating, maintaining, owning, or navi- Case 8:16-cv-02801-MSS-AAS Document 10 Filed 02/23/17 Page 2 of 9 PageID 57 3 gating the M/V POLARSTREAM. Schifff was the legal owner and the owner pro hac vice of the M/V POLARSTREAM on December 30, 2013, and remains so today. Rolfe Dec., ¶ 14. Dale Rolfe is a non-lawyer member of Beaufort Zweigniederlassung Leer, the legal services, claims handling, and insurance department for and on behalf of Triton Schiffahrts GmBH (“Triton”). Rolfe Dec., ¶ 4. Triton is the technical and crewing manager for the M/V POLARSTREAM and acts as an agent for Schifff. Rolfe Dec., ¶ 4. Triton also acts as an agent for PMI. Rolfe Dec., ¶ 4. Triton is a German company with its principal place of business in Leer, Germany. Rolfe Dec., ¶ 4. PMI’S LACK OF CONNECTION TO FLORIDA PMI, a Liberian company, has never engaged in business in Florida. Rolfe Dec., ¶ 15. PMI has no corporate officer or employee who resides in Florida, has no agent trans- acting business for it in Florida, owns no real estate in Florida, maintains no office in Flori- da, and holds no bank account in Florida. Rolfe Dec., ¶ 15. PMI was not possessing, com- manding, operating, maintaining, owning, or navigating the M/V POLARSTREAM on or around December 30, 2013. Rolfe Dec., ¶ 14. THE PLAINTIFF’S ATTEMPTED SERVICE OF PROCESS ON PMI The docket reveals that the plaintiff attempted to serve PMI with process. (Doc. 8.) The proof of service states that “[t]his confirmation of receipt of notice of action is made in accordance with Rule 4(h)(2), Federal Rules of Civil Procedure.” (Doc. 8, at 1.) The proof of service also states that “notice and process . . . was delivered by . . . international courier” to PMI. (Doc. 8, at 1.) Attached to the proof of service for PMI is an e-mail confirmation in another lan- guage from United Parcel Service, or “UPS,” showing that UPS delivered the parcel on No- Case 8:16-cv-02801-MSS-AAS Document 10 Filed 02/23/17 Page 3 of 9 PageID 58 4 vember 24, 2016. (Doc. 8-1, at 2.) Also attached to the proof of service for PMI is a cover letter from counsel for the plaintiff explaining that “a Summons has been issued by [the] Court with respect to [PMI], which called for substitute service of process on the Florida Department of State, Division of Corporations, in accordance with Chapter 48.19, Florida Statutes.” (Doc. 8-2, at 1.) The cover letter is addressed to “Polarstream Maritime, Inc., c/o Triton Schiffahrts GmbH.” (Doc. 8-2, at 1.) The documents attached to counsel’s cover let- ter are the summons, the complaint, and a letter from the Florida Department of State, Di- vision of Corporations. (Doc. 8-2, at 2-16.) The Department of State’s letter states that under Section “48.19, 49.193, 48.081 or 48.101, Florida Statutes, a copy of the process and initial pleading, case number 8:16-CV-2801, was accepted for [PMI] and was filed on October 5, 2016, at 04:00 PM.” (Doc. 8-2, at 2.) Neither Triton nor PMI has received correspondence about this action from a Liberian or German governmental authority. Rolfe Dec., ¶ 16. MEMORANDUM OF LAW PMI should be dismissed from this action for lack of personal jurisdiction because PMI relinquished possession, command, and navigation of the vessel in January of 2006. In addition, this action against PMI should be dismissed because the plaintiff failed to comply with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. I. Personal Jurisdiction Is Lacking Because PMI Relinquished Possession, Com- mand, and Navigation of the Vessel in January of 2006. When suing a non-resident defendant, the plaintiff bears the initial burden of demon- strating the applicability of Florida’s “long-arm” statute, Section 48.193, by pleading facts within a jurisdictional basis contained in the statute. Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 (11th Cir. 1999) (citing Electro Eng’g Prods. Co. v. Lewis, 352 So. 2d 862, 864 (Fla. Case 8:16-cv-02801-MSS-AAS Document 10 Filed 02/23/17 Page 4 of 9 PageID 59 5 1977)). If a defendant refutes the jurisdictional allegations with evidence on a motion to dismiss, the plaintiff “bears the burden of proving ‘by affidavit the basis upon which jurisdic- tion may be obtained.’” Posner, 178 F.3d at 1214 (quoting Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989)). The plaintiff’s failure to controvert the defendant’s evi- dence warrants dismissal for lack of personal jurisdiction. Posner, 178 F.3d at 1219. As the basis for personal jurisdiction against PMI, the Complaint alleges that PMI “maintain[ed] an office and/or carr[ied] on business in Port Manatee, Florida, and was the owner, operator and/or otherwise in control of M/V POLARSTREAM.” (Doc. 1, ¶ 2.).1 None of these allegations is correct on the facts, and each is refuted by the attached declara- tion of Dale Rolfe. First, PMI does not engage in business in Florida. Rolfe Dec., ¶ 15. PMI has no corporate officer or employee who resides in Florida, has no agent transacting busi- ness for it in Florida, owns no real estate in Florida, maintains no office in Florida, and holds no bank account in Florida. Rolfe Dec., ¶ 15. These facts were true on or around De- cember 30, 2013, also. Rolfe Dec., ¶ 15. Second, PMI never legally owned or operated the M/V POLARSTREAM. Rolfe Dec., ¶ 12. Although PMI briefly bareboat chartered the vessel in January 2006, that same month PMI entered a demise charter party with Schifff that returned possession, command, and navigation back to Schifff, the owner of the vessel. The complete return of the posses- sion, command, and navigation of the vessel is unambiguous: “The Vessel shall during the 1 The allegations implicate two potential bases for specific personal jurisdiction under the long-arm statute. Section 48.193(1)(a), Florida Statutes, provides specific personal jurisdic- tion if a plaintiff sues “for any cause of action arising from” the defendant’s “[1] [o]perating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state[,] and [2] committing a tortious act within this state.” Thus, specific personal jurisdiction requires a “direct affiliation, nexus, or substantial connection” between the cause of action and the business activity or tort committed in Florida. Citicorp Ins. Brokers (Marine), Ltd v. Charman, 635 So. 2d 79, 82 (Fla. 1st DCA 1994). Case 8:16-cv-02801-MSS-AAS Document 10 Filed 02/23/17 Page 5 of 9 PageID 60 6 Charter period be in the full possession and at the absolute disposal for all purposes of the Charterers [Schifff] and under their complete control in every respect.” Rolfe Dec. ¶ 12, Exh. D, ¶ 9. As a result, PMI was neither owning, operating, nor controlling the vessel in Florida on December 30, 2013, when the injury allegedly occurred. Rolfe Dec. ¶ 14. Be- cause each allegation of personal jurisdiction is refuted, the Court should dismiss PMI from this action for lack of personal jurisdiction.2 Posner, 178 F.3d at 1219. II. The Plaintiff Failed to Serve Process in Compliance With the Hague Convention, As the Federal Rules Require A. Rule 4(h)(2) Requires Compliance with the Hague Convention The proof of service for each defendant states that “[t]his confirmation of receipt of notice of action is made in accordance with Rule 4(h)(2), Federal Rules of Civil Procedure.” (Doc. 8, at 1; Doc. 9, at 1.) If a plaintiff seeks to serve a corporation or other business entity outside of the United States, Rule 4(h)(2) requires service “in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).” Rule 4(f) provides that an individual “may be served at a place not within any judicial district of the United States: (1) by any internationally agreed means of service that is reasonably calculat- ed to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.” Rule 4(f)(2) provides other ways of effecting ser- vice abroad absent court order, but only “if there is no internationally agreed means” of ser- 2 The Complaint does not attempt to invoke general personal jurisdiction, which requires “substantial and not isolated activity” with Florida. Fla. Stat. § 48.193(2); see also Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1204 (11th Cir. 2015) (“A court may assert general jurisdiction over foreign . . . corporations, without offending due process when their affilia- tions with the State are so continuous and systematic as to render them essentially at home in the forum State.”) (internal quotation omitted). And yet, even if the complaint attempted to invoke general personal jurisdiction, the Rolfe Declaration controverts each alleged con- tact between PMI and Florida. Accordingly, the Court also lacks general personal jurisdic- tion over Groningen. Case 8:16-cv-02801-MSS-AAS Document 10 Filed 02/23/17 Page 6 of 9 PageID 61 7 vice. In other words, “compliance with the Convention is mandatory in all cases to which it applies.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988); Forth v. Car- nival Corp., No. 12-cv-23770, 2013 WL 1840373, *2 (S.D. Fla. May 1, 2013) (Seitz, J.). The plaintiff attempted to serve Triton, a German company and agent of PMI. Arti- cle 3 of the Hague Service Convention provides for service of process “‘through the Central Authority of each [destination] country’ and ‘Article 10(a) of the Hague Service Convention permits service by “postal channel” only if “the State of destination does not object.” Leon v. Continental AG, 176 F. Supp. 3d 1315, 1317 (S.D. Fla. 2016) (King, J.) (quoting TracFone Wireless, Inc. v. Sunstrike Intern., Ltd., 273 F.R.D. 697, 699 (S.D. Fla. 2011) (Martinez, J.)). Germany has objected to Article 10(a), so process for PMI “must be dispatched by the Clerk to the German Central Agencies for the states in which each maintains its principal place of business.” Leon, 176 F. Supp. 3d at 1317. Triton has received no correspondence about this matter from a German Central Agency or any other German governmental body. Accord- ingly, the plaintiff failed to comply with Rule 4(h)(2) and effect sufficient service of process on PMI. B. The Plaintiff Failed to Serve Process in Compliance With the Hague Con- vention, As the Constitution’s Supremacy Clause Requires As the plaintiff’s counsel explained in the November 22, 2016 cover letter to Triton as agent for PMI, the plaintiff attempted substitute service on Florida’s Secretary of State: “a Summons has been issued by [the] Court with respect to [PMI], which called for substitute service of process on the Florida Department of State, Division of Corporations, in accord- ance with Chapter 48.19, Florida Statutes.” (Doc. 8-2, at 1.) By virtue of the Supremacy Clause of Clause 2, Article VI, of the U.S. Constitution, substitute service of a foreign corporation under the Florida Statutes requires use of the Case 8:16-cv-02801-MSS-AAS Document 10 Filed 02/23/17 Page 7 of 9 PageID 62 8 Hague Convention. As a federal treaty, “the Convention pre-empts inconsistent methods of service prescribed by state law in all cases to which it applies.” Schlunk, 486 U.S. at 699. The Hague Convention applies if “the internal law of the forum state defines the applicable method of serving process as requiring the transmittal of documents abroad.” Schlunk, 486 U.S. at 700. Thus, whether an occasion “for service abroad exists depends on the internal law of the forum state.” Vega Glen v. Club Mediterranee S.A., 359 F. Supp. 2d 1352, 1356 (S.D. Fla. 2005). Substitute service in Florida requires “the transmittal of documents abroad.” McClenon v. Nissan Motor Corp., 726 F. Supp. 822, 824-25 (N.D. Fla. 1989). Titled “Method of substituted service on nonresident,” Section 48.161 governs the “procedure for accom- plishing service on the Secretary of State.” McClenon, 726 F. Supp. at 824. Section 48.161 provides that “[n]otice of service and a copy of the process shall be sent forthwith by regis- tered or certified mail by the plaintiff or his attorney to the defendant.” Thus, if the defend- ant is located in a foreign country, Section 48.161 requires “the transmittal of documents abroad.” McClenon, 726 F. Supp. at 824; Vega Glen, 359 F. Supp. 2d at 1356 (citing McClenon and explaining that “to serve a foreign corporation that is alleged to be doing business with- in the State of Florida, a plaintiff must serve the summons and complaint on the Florida Secretary of State and on the foreign corporation at its overseas offices”). Accordingly, un- der Schlunk, Vega Glen, and McClenon, the Hague Convention applies, and the plaintiff’s failure to comply with the Hague Convention renders service of process insufficient. CONCLUSION For the reasons stated above, the defendants request that the Court dismiss PMI from this action for lack of personal jurisdiction and insufficient service of process. Case 8:16-cv-02801-MSS-AAS Document 10 Filed 02/23/17 Page 8 of 9 PageID 63 9 LAU, LANE, PIEPER, CONLEY & McCREADIE, P.A. s/ David W. McCreadie DAVID W. McCREADIE Florida Bar No. 308269 dmccreadie@laulane.com ADAM D. GRIFFIN Florida Bar No. 94873 agriffin@laulane.com Tampa, Florida 33602 Tel: (813) 229-2121 Fax: (813) 228-7710 Attorneys for the defendants Polarstream Mari- time, Inc., and Seatrade Groningen BV CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 23, 2017 the foregoing was filed with the Clerk of Court using the CM/ECF system. s/ David W. McCreadie . ATTORNEY Case 8:16-cv-02801-MSS-AAS Document 10 Filed 02/23/17 Page 9 of 9 PageID 64 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 1 of 32 PageID 65 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 2 of 32 PageID 66 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 3 of 32 PageID 67 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 4 of 32 PageID 68 Exhibit A Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 5 of 32 PageID 69 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 6 of 32 PageID 70 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 7 of 32 PageID 71 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 8 of 32 PageID 72 Exhibit B Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 9 of 32 PageID 73 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 10 of 32 PageID 74 Exhibit C Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 11 of 32 PageID 75 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 12 of 32 PageID 76 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 13 of 32 PageID 77 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 14 of 32 PageID 78 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 15 of 32 PageID 79 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 16 of 32 PageID 80 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 17 of 32 PageID 81 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 18 of 32 PageID 82 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 19 of 32 PageID 83 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 20 of 32 PageID 84 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 21 of 32 PageID 85 Exhibit D Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 22 of 32 PageID 86 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 23 of 32 PageID 87 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 24 of 32 PageID 88 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 25 of 32 PageID 89 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 26 of 32 PageID 90 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 27 of 32 PageID 91 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 28 of 32 PageID 92 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 29 of 32 PageID 93 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 30 of 32 PageID 94 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 31 of 32 PageID 95 Case 8:16-cv-02801-MSS-AAS Document 10-1 Filed 02/23/17 Page 32 of 32 PageID 96