Fortis Corp Ins v. Viken Ship Mngmt ( 2006 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0192p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellant, -
FORTIS CORPORATE INSURANCE,
-
-
-
No. 05-3792
v.
,
>
VIKEN SHIP MANAGEMENT, et al., -
Defendants-Appellees. -
N
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 04-07048—James G. Carr, Chief District Judge.
Argued: March 7, 2006
Decided and Filed: June 8, 2006
Before: SUTTON and GRIFFIN, Circuit Judges; OBERDORFER, District Judge.*
_________________
COUNSEL
ARGUED: David T. Maloof, MALOOF, BROWNE & EAGAN, Rye, New York, for Appellant.
Henry E. Billingsley, II, TUCKER, ELLIS & WEST, Cleveland, Ohio, for Appellee. ON BRIEF:
David T. Maloof, MALOOF, BROWNE & EAGAN, Rye, New York, for Appellant. Henry E.
Billingsley, II, TUCKER, ELLIS & WEST, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
OBERDORFER, District Judge. In this maritime shipping case, we consider whether the
district court properly ruled that it lacked personal jurisdiction over defendants-appellants Viken
Lakers A/S and Viken Ship Management A/S (“VSM”). These two Norwegian companies own and
manage a fleet of ocean-going cargo vessels. In 1998, defendants entered a Time Charter
Agreement with FedNav International (a Canadian company). The agreement chartered to FedNav
a fleet of vessels, including the M/V Inviken, for a period of several years1 to transport cargo on an
as-needed basis. FedNav subchartered the M/V Inviken to Metallia LLC (a U.S. company) to carry
*
The Honorable Louis F. Oberdorfer, United States District Judge for the District of Columbia, sitting by
designation.
1
Fortis states that the agreement was for a term of five years (see Appellant Br. 1), but the Charter Agreement
appears on its face to be for nine years. See JA 108 (Charter Agreement).
1
No. 05-3792 Fortis Corp. Ins. v. Viken Ship Management, et al. Page 2
a specific cargo of steel coils from Szczecin, Poland to Toledo, Ohio. En route seawater entered the
cargo hold of the M/V Inviken, causing severe rust damage to the coils. Plaintiff-Appellant Fortis
Corporate Insurance, a Belgian company, is a surrogate insurance underwriter of Metallia. Fortis
paid $375,000 to resolve Metallia’s insurance claim.
On February 2, 2004, Fortis sued defendants in the U.S. District Court for the Northern
District of Ohio, which district2 includes Toledo, for damages allegedly caused by negligence and
breach of bailment obligations. In their answer, defendants maintained that the district court lacked
personal jurisdiction over them. However, the court allowed Fortis to conduct discovery to
demonstrate, if it could, that jurisdiction existed.
On October 15, 2004, defendants moved for summary judgment dismissing the suit on the
theory that the federal court in Toledo lacked personal jurisdiction over defendants. On March 16,
2005, the district court granted this motion. See Fortis Corporate Ins. v. M/V Inviken, et al., 2005
WL 646092 (N.D. Ohio Mar. 16, 2005). The court then granted Fortis’ motion for voluntary
dismissal of its amended complaint. On May 17, 2005, the district court entered an Order of Final
Judgment. On June 6, 2005, Fortis filed its timely Notice of Appeal.
On appeal we review de novo the district court’s dismissal of the case for lack of personal
jurisdiction, see Southerland v. Wofford, 894 F.2d 408 (6th Cir. 1990), and we reverse.
I. Facts
The undisputed evidence generates the following undisputed facts:
A. FedNav
Third party FedNav, based in Montreal, Canada, is a well-known steel commodity carrier
in the Great Lakes region. According to a declaration by Donald Frost, a marine transportation
consultant:
It is a matter of widespread general knowledge within the maritime chartering
industry that Fednav[’s] primary business is the carriage of international cargoes to
and from the Great Lakes, including numerous United States ports, via the St.
Lawrence Seaway. Fednav is also known for calling especially at Great Lake ports
that receive steel cargoes, such as the port of Toledo, Ohio. In fact, according to the
Fednav website, a link to which is contained on the website of Defendant Viken Ship
Management, Fednav International Ltd. is the largest international user of the St.
Lawrence Seaway system. The St. Lawrence Seaway is, of course, the only direct
access to the Great Lakes by ship.
Frost Decl. ¶¶ 5-6 (JA 158). Defendants did not offer any evidence in rebuttal.
B. The Viken Defendants
Undisputed facts confirm Frost’s declaration; defendants’ vessels called at U.S. ports
(including Toledo) frequently:
• According to a listing of port calls, defendants’ vessels called at U.S. ports 172 times
between January 1999 and March 2004, or nearly three times a month. Two-thirds
2
Plaintiff also originally sued the vessel M/V Inviken and a predecessor ship management company, Vista Ship
Management. Plaintiff subsequently dismissed M/V Inviken and Vista Ship Management as parties.
No. 05-3792 Fortis Corp. Ins. v. Viken Ship Management, et al. Page 3
of these calls (114) were at U.S. Great Lake ports, and 29 of these calls were at Ohio.
See Frost Decl. ¶¶ 10-11 (JA 159-160); see also JA 247-276 (listing of all port calls
for Viken Laker vessels, January 1999 - March 2004).
• During this same period, the Laker vessels spent a total of 62 days at Ohio ports. See
Frost Decl. ¶ 13 (JA 160). The Charter Agreement provides that the rate to charter
a vessel is $9,000 per day minimum. See JA 108 (Charter Agreement). As a result,
defendants earned a total of at least $558,000 for the number of days spent in Ohio
ports during this period.
• Similarly, defendants’ vessels spent 572 days in U.S. ports. At a rate of at least
$9,000 per day, defendants earned at least $5,148,100 for time spent in U.S. ports.
See Frost Decl. ¶ 13 (JA 160).
• The VSM website, in describing its contingency plans for any environmental
disasters, states that it makes “[f]requent calls to the USA and Canada, including the
Great Lakes[.]”
C. The Charter Agreement
The Charter Agreement between the Viken defendants and FedNav could fairly be
characterized as anticipating issues and problems that would arise during the time of the charter –
not simply for the shipment at issue in this case.
The Agreement contains several references to the United States and Toledo specifically,
including the following description of the M/V Inviken:
• The “[v]essel is fully equipped with the necessary gear and equipment required for
transitting St. Lawrence Seaway, the Welland Canal and Great Lakes.” JA 97. The
Welland Canal runs between Lake Ontario and Lake Erie.
• “When the vessel trades within the waters of the Great Lakes, her fresh water, stores,
lubricating oil and constant not to exceed 350 metric tons[,] and Master to endeavour
to reduce fresh water whilst trading in the Great Lakes.” Id.
• “Owners confirm that the vessel is suitable for Toledo.” Id.
• FedNav, as the charterers, had “the option to crop and replace mast in order to safely
trade to Toledo.” Id. at 106.
In addition:
• The Charter Agreement contains three other references to the Great Lakes region.
See id. at 99-100.
• Fednav is located in Montreal. The Charter Agreement only specifies two ports: one
in Montreal, and the other in Toledo.
• Critically, employees of the defendants concede that the vessels were rigged in order
to travel to the Great Lakes.3
3
For example, Helge Lassesen, the Quality Assurance and Safety Manager of Viken Ship Management,
provided the following deposition testimony regarding the Charter Agreement:
Q: [T]he charter [states] . . . “Vessel is fully equipped with the necessary gear and equipment required
No. 05-3792 Fortis Corp. Ins. v. Viken Ship Management, et al. Page 4
II. Specific Jurisdiction
The question of personal jurisdiction in this case is guided by Fed. R. Civ. P. 4(k)(2), which
provides:
If the exercise of jurisdiction is consistent with the Constitution and laws of the
United States, serving a summons . . . is also effective, with respect to the claims
arising under federal law, to establish personal jurisdiction over the person of any
defendant who is not subject to the jurisdiction of the courts of general jurisdiction
of any state.
To establish personal jurisdiction, a plaintiff must show that (1) the defendant had
“‘minimum contacts’ with the forum state such that defendant should ‘reasonably anticipate being
haled into court there,’” and (2) “‘the 4exercise of jurisdiction comport[s] with traditional notions of
fair play and substantial[ ]justice.’” The “‘constitutional touchstone’ of personal jurisdiction5
‘remains whether the defendant purposefully established minimum contacts in the forum state.’”
“In the Sixth Circuit, ‘the emphasis in the purposeful availment inquiry is whether6the defendant has
engaged in some overt actions connecting the defendant with the forum state.’”
The minimum contacts prong is satisfied either through specific or general jurisdiction.
Specific jurisdiction “subjects the defendant to ‘suit in 7the forum state only on claims that arise out
of or relate to a defendant’s contacts with the forum.’” General jurisdiction is established “when
a defendant has continuous and systematic contacts with the forum state sufficient to justify the
state’s exercise of judicial power with respect to any and all claims.”8 Because specific personal
jurisdiction exists in this case based on defendants’ contacts with Ohio, we do not address the
requirements for general jurisdiction and the “national contacts” test.
for transitting the St. Lawrence Seaway, the Welland Canal, and the Great Lakes” . . . is this an
indication of where the vessel’s going to be traveling to?
A: Yes . . . because various areas have specific requirements. . . . It’s indication [sic] that the vessel
- that we have to rig the vessel to traverse the Great Lakes.”
Lassesen Dep. Tr. 72-73 (JA 182-83) (emphasis added). Similarly, Thomas Steekmast, the Director of the Viken
Shipping Group (a holding company for Viken Lakers), testified that the M/V Inviken “is lake fitted. So, by definition,
she is constructed so that she can trade into the lakes which is part of the description [in the Charter Agreement], I
believe.” Steckmest Dep. Tr. 42 (JA 225); see also id. at 43 (JA 225).
4
Fortis, 2005 WL 646092, at *1 (quoting Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) and
Nationwide Mut. Ins. Co. v. Tryg Int’l Ins. Co., 91 F.3d 790, 793 (6th Cir. 1996)).
5
Id. at *2 (quoting Asahi Metal Indus. Co. v. Superior Court of Calif., 480 U.S. 102, 108-09 (1987)).
6
Id. (quoting Bridgeport Music, Inc. v. Still N the Water Publ’g, 327 F.3d 472, 479 (6th Cir. 2003)).
7
Id. (quoting, inter alia, Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 (1984) (additional
citation and internal quotation marks omitted)).
8
Id. (quoting Aristech Chem. Int’l v. Acrylic Fabricators, 138 F.3d 624, 627 (6th Cir. 1998)) (internal quotation
marks omitted).
No. 05-3792 Fortis Corp. Ins. v. Viken Ship Management, et al. Page 5
A. Purposeful Availment
1. Asahi
The Supreme Court in Asahi Metal Indus. Co. v. Superior Court of Calif., 480 U.S. 102
(1987) analyzed the purposeful availment test in detail. Asahi was a Japanese company that
manufactured tire valves, which it sold to a Taiwanese manufacturer of tire tubes. Plaintiff was
injured when the tire of his motorcycle equipped with an Asahi valve burst. He sued Asahi in
California. The Court ruled that the district court lacked personal jurisdiction over Asahi, although
no opinion commanded the support of a majority of the Court.
Justice O’Connor’s plurality opinion held that the “placement of a product into the stream
of commerce, without more, is not an act of the defendant purposefully directed toward the forum
State. Additional conduct of the defendant may indicate an intent or purpose to serve the market in
the forum state, for example, designing the product for the market in the forum state . . .” Id. at 112.
This formulation came to be known as “stream of commerce plus.” In concluding that the district
court lacked jurisdiction, the plurality opinion concluded that there was no evidence that Asahi
“designed its product in anticipation of sales in California.” Id. at 113 (citation omitted).
As an example of purposeful design that presumably would meet the “stream of commerce
plus” test, Justice O’Connor’s opinion cited Rockwell Int’l Corp. v. Costruzioni Aeronautiche
Giovanni Agusta, 553 F. Supp. 328 (E.D. Pa. 1982); see Asahi, 480 U.S. at 113. In that case, an
Augusta A-109 helicopter crashed over the Ohio River. After plaintiff filed suit, the trial court
considered whether it had personal jurisdiction over SNFA, a French manufacturer of ball bearings.
These ball bearings were custom-designed exclusively for the A-109 helicopter, which was
manufactured by Augusta, an Italian company. SNFA knew that Augusta marketed its helicopters
to the “executive corporate transport market” in the United States and Europe. The district court
found specific jurisdiction over SNFA, because SNFA designed the ball bearings exclusively for the
A-109 helicopters, knowing that these helicopters would be sold in the United States (and other
countries). Id. at 331-32.
Finally, in support of its position, the Asahi plurality explained that application of the
purposeful availment test is appropriate because a corporation then has
clear notice that it is subject to suit there, and can act to alleviate the risk of
burdensome litigation by procuring insurance, passing the expected costs on to
customers, or, if the risks are too great, severing its connection with the State. Hence
if the sale of a product . . . is not simply an isolated occurrence, but arises from the
efforts of the manufacturer or distributor to serve, directly or indirectly, the market
for its product in other States, it is not unreasonable to subject it to suit in one of
those States . . .
480 U.S. at 110 (emphasis added) (citations and internal quotation marks omitted).
2. The District Court’s Opinion
Applying the Asahi formulation, the district court acknowledged that defendants rigged their
vessels to sail into the Great Lakes and call at Toledo’s port. However, the court concluded that it
lacked personal jurisdiction over the defendants because the third-party charterer was Canadian.
As explained below, the district court erred as a matter of law in ruling on this basis.
In its holding, the district court offered the following analysis:
No. 05-3792 Fortis Corp. Ins. v. Viken Ship Management, et al. Page 6
[Plaintiff] points to several provisions of the time charter specifying that the ship is
suitable for Toledo’s port. Designing a product specifically for a certain market
suffices for an “intent or purpose to serve the market in the forum state.” Asahi, 480
U.S. at 112. Fortis argues that this is exactly what Viken Lakers did when it
promised the M/V Inviken would be suitable for the Port of Toledo.
This contention is mistaken. Viken Lakers derives their income from providing ships
to time-charterers, none of whom, it appears, are [sic] American. When Viken made
this promise, it served to insure the business of a Canadian charter company,
FedNav. An[ ]intent to serve the needs of a Canadian company is not an intent to
serve the market of this forum. These clauses are, therefore, irrelevant for
jurisdictional purposes. See Carter v. Lagloria Shipping, 1997 WL 423101 at *3
(E.D.La. July 24, 1997).
Id. at *3.
The district court thus erroneously injected a new requirement into the personal jurisdiction
analysis. The relevant question is whether defendants purposefully availed themselves of the
benefits of the forum state, Ohio. Defendants derived the same benefit – and hence their contacts
with the forum state are the same – regardless of whether they were working with an American or
a Canadian company.9 Indeed, other shipping cases that have found personal jurisdiction over a
foreign vessel owner have conspicuously failed to refer to whether the vessel operator was American
or foreign. See United States v. Pierre Point Shipping and Inv. Co., 655 F. Supp. 1379 (E.D. Va.
1987); Mitsubishi Shoji Kaisha v. MS Galini, 323 F. Supp. 79 (S.D. Tex. 1971). But see Mutualidad
Seguros del Instituto Nacional de Industria v. M.V. Luber, 1999 A.M.C. 824 (S.D.N.Y. 1998) (no
jurisdiction over foreign vessel owner). Moreover, in the non-shipping context, we have repeatedly
held, as have other courts, that a defendant’s interposition of an independent middleman between
itself and the forum does not by itself place the defendant outside of that forum’s reach. See Tobin
v. Astra Pharm. Prods., 993 F.2d 528, 544 (6th Cir. 1993) (“[The defendant] cannot expect to rely
solely on the use of an independent distributor to insulate it from suit.”); Mott v. Schelling & Co.,
1992 U.S. App. LEXIS 13273, at *6 (6th Cir. May 29, 1992) (“‘The use of an independent
distributor . . . in and of itself, will not insulate a non-resident foreign corporation from suit.’”)
(quoting Poyner v. Erma Werke Gmbh, 618 F.2d 1186, 1190 (6th Cir. 1980)); see also, e.g., Pennzoil
Prods. v. Colelli & Assoc., 149 F.3d 197, 203 (3d Cir. 1998) (observing that jurisdiction may be
appropriate although defendant “does not come into direct contact with the forum state but does so
through intermediaries”); Renner v. Lanard Toys, 33 F.3d 277, 282 (3d Cir. 1994) (“It [ ] appears
from Asahi . . . that the absence of direct sales or shipments into the forum is not dispositive.”).
From the foregoing, we conclude that the district court erred as a matter of law in ruling that
it lacked jurisdiction because the charterer was not American. The district court did find, however,
that defendants rigged its vessels to sail into the Great Lakes and Toledo. In light of this finding,
we here analyze the purposeful availment test in greater detail.
3. Sixth Circuit Caselaw on Purposeful Availment
The Sixth Circuit has adopted Justice O’Connor’s “stream of commerce plus” test from
Asahi. In Bridgeport Music v. Still N the Water Publ’g, 327 F.3d 472, 480 (6th Cir. 2003), “we
ma[d]e clear . . . our preference for Justice O’Connor’s stream of commerce ‘plus’ approach, for the
9
The case cited by the district court is not to the contrary. See Carter v. Lagloria Shipping, 1997 WL 423101,
at *3 (E.D. La. July 24, 1997). That case involved whether general jurisdiction existed, and defendants there had not
rigged their vessels for U.S. ports or otherwise designed their products for the U.S. market.
No. 05-3792 Fortis Corp. Ins. v. Viken Ship Management, et al. Page 7
reasons set forth in that opinion . . .” As explained below, the facts of this case meet the “plus”
requirement under Sixth Circuit precedent.
The case of Mott v. Schelling & Co., 1992 U.S. App. LEXIS 13273 (6th Cir. May 29, 1992)
is instructive. See also Tobin v. Astra Pharm. Prod., 993 F.2d 528, 544 (6th Cir. 1992) (favorably
discussing Mott). Mott was injured in Michigan while operating an industrial saw manufactured by
Schelling, an Austrian-based company. Mott and members of his family sued, inter alia, Schelling,
which moved to dismiss the complaint for lack of personal jurisdiction. In outlining the
requirements of the purposeful availment test, the Mott court held that “even a single act can support
jurisdiction as long as it creates the required relationship with the forum state.” Mott, 1992 U.S.
App. LEXIS 13273, at *11 (citing McGee v. Int’l Life Ins. Co., 335 U.S. 220, 223 (1957)).
Schelling argued that it was not subject to the specific jurisdiction of the Michigan courts
because it had no relevant contacts there. The offending saw was sold to Schelling’s U.S.-based
agent the Proctor Corporation in Birmingham, Alabama, at which point Proctor obtained (and
Schelling lost) title to the saw. The court of appeals noted that Schelling “actively cultivated its
American market. United States standards were taken into account in the design and manufacture
of the saw at issue.” Id. at *15 (emphasis added). Schelling’s employees had come to the United
States to market and sell these machines; the court did not state that they marketed in Michigan
specifically. In addition, a Schelling technician went to the plant in Michigan to install the saw and
demonstrate the blade-change procedure.
The appellate court concluded that specific personal jurisdiction existed over Schelling in
Michigan. It held that Schelling “had to know” that the saw was destined for Michigan because it
sent one of its technicians there. Moreover,
Schelling knew its saws were being sold in the United States. The company actively
cultivated its market here, and benefited from numerous U.S. sales, including the one
in this case, over many years. Clearly Schelling cannot reasonably expect to sell a
potentially dangerous product into the United States, exact its price, and then shirk
any obligations that arise when its machine goes awry. Due process does not require
us to allow Schelling to exploit this country’s vast, rich markets and at the same time
avoid the jurisdiction of our courts. Under any formulation of the test, the district
court properly exercised personal jurisdiction over Schelling.
Id. at *17-18.
The court’s ruling in Mott is noteworthy because it found sufficient contacts with Michigan
based on sales to its distributor in Alabama. Schelling undoubtedly knew that its saw could end up
in Michigan through the stream of commerce. Yet the only specific contact with Michigan (as
opposed to the United States) that would qualify as a “plus” factor in the Asahi formulation is the
technician’s installation of the saw in Michigan and demonstration of the blade-changing technique.
In this case, defendants outfitted and rigged their ships to sail into the Great Lakes.
Defendants confirmed in the Charter Agreement that “the vessel is suitable for Toledo.” JA 97.
Defendants’ officers testified that the vessels were rigged to travel to the Great Lakes. They entered
into a long-term agreement with a charterer that made its money shipping into the Great Lakes. Not
counting travel time, they earned $558,000 for the number of days spent in Ohio ports over five
years. Defendants had more than sufficient notice that they might be subject to jurisdiction here,
No. 05-3792 Fortis Corp. Ins. v. Viken Ship Management, et al. Page 8
and had ample opportunity to pass on the costs of potential 10
liability to FedNav if they desired, or to
require that FedNav avoid United States ports completely. See Asahi, 480 U.S. at 110.
Defendants argue that the vessels were rigged to travel to countries other than the United
States, and that the Great Lakes serves both the United States and Canada. Under the Asahi
formulation, however, the crucial question is whether defendants designed their product for or
directed their products to the forum state – not whether the United States was the exclusive market
for the defendants’ products. See Asahi, 480 U.S. at 113 (citing Rockwell, discussed supra Part
II.A.1.) (jurisdiction appropriate when custom-made ball bearings used in helicopters were sold in
United States and Europe).
In sum, defendants rigged their vessels to ship products to the Great Lakes ports, including
Toledo. Pursuant to Asahi and Mott, this, plus the frequent calls to these ports, is sufficient to
establish purposeful availment of the forum state.
B. Arise out of Actions in Forum State
The second consideration in the minimum contacts test is whether the cause of action arose
out of the defendant’s activities in the forum state. Despite finding insufficient contacts with Ohio,
the district court concluded that Fortis’s cause of action did arise out of actions in the forum state.
It acknowledged that the event that caused the leak, the leak itself, and the damage to the steel coils
all occurred at sea before reaching Toledo. Yet, according to the district court, “[w]hat [the
defendants] again cannot escape is that this entire case is in this court only because their ship
delivered cargo to Toledo. Therefore, this criterium is satisfied.” 2005 WL 646092, at *2.
The Sixth Circuit establishes a “lenient” threshold for meeting this requirement. See Bird
v. Parsons, 289 F.3d 865, 875 (6th Cir. 2002). In Bird, the court considered whether a plaintiff’s
cause of action arose in Ohio when the pro se plaintiff alleged the defendants – all of whom were
non-Ohio residents – misappropriated his domain name in violation of copyright and trademark
laws. Defendant Dotster was a registrar of internet domain names. After the district court dismissed
the case for lack of jurisdiction, plaintiff appealed, and the court of appeals reversed. It noted that
the “only factual allegations that connect [the Dotster defendants] in any way to Ohio” are as
follows: the Dotster defendants admit they have sold approximately 233,333 internet domain names
to United States customers, which, when divided by 50, means that on average they sold about 4,666
domain names to each state, including Ohio. Id. at 872. The court concluded that this satisfied the
purposeful availment test.
The court then considered whether plaintiff’s claims arose out of the Dotster defendants’
contacts with Ohio. The court held that the “arising out of” factor “requires only ‘that the cause of
action, of whatever type, have a substantial connection with the defendant’s in-state activities.’” Id.
at 875 (quoting in part Third Nat’l Bank v. WEDGE Group, 882 F.2d 1087, 1091 (6th Cir. 1989)).
The court concluded that the actions of the Dotster defendants in registering a third party’s domain
name constituted sufficient connection with Ohio. The court held that “the operative facts are at
least marginally related to the alleged contacts between the Dotster defendants and Ohio.” Id. The
10
The district court and defendants rely on the case of Mutualidad Seguros del Instituto Nacional de Industria
v. M.V. Luber, 1998 WL 1108936 (S.D.N.Y. Sept. 25, 1998) to argue that defendants only owned the vessels and did
not purposefully call on U.S. ports. That case held that a foreign owner of a shipping vessel cannot be subject to the
jurisdiction of U.S. courts because it has no control over where the vessels sail. This holding is inconsistent with Sixth
Circuit precedent. See, e.g., Mott, supra. It is also at odds with cases that have found jurisdiction over a foreign vessel
owner that charters its boats to a third party. See United States v. Pierre Point Shipping and Inv. Co., 655 F. Supp. 1379
(E.D. Va. 1987); Mitsubishi Shoji Kaisha v. MS Galini, 323 F. Supp. 79 (S.D. Tex. 1971).
No. 05-3792 Fortis Corp. Ins. v. Viken Ship Management, et al. Page 9
court reached this conclusion even though the only factual connection to Ohio related to plaintiff’s
claim was that the plaintiff lived there and was harmed there.
In this light, the factual allegations here are sufficient to establish that the claims arose out
of activities in the forum state. The alleged harm ultimately suffered by plaintiff, and arguably the
breach of bailment obligations, occurred in Ohio when defendants’ ship delivered rusted steel coils
to Toledo. The facts in this case are sufficient under Bird and this Circuit’s “lenient” standard to
meet the “arising under” test.
C. Reasonableness
As part of the minimum contacts test, courts lastly consider whether exercising jurisdiction
would be reasonable. “Whether the exercise of jurisdiction over a foreign defendant is reasonable
is a function of balancing three factors: ‘the burden on the defendant, the interests of the forum State,
and the plaintiff’s interest in obtaining relief.’” City of Monroe Employees Ret. Sys. v. Bridgestone,
399 F.3d 651, 666 (6th Cir. 2005) (quoting Asahi, 480 U.S. at 113). “This circuit has already
observed that where the first two criteria [of the minimum contacts test] are satisfied, only the
unusual case will not meet th[e] third criterion [of reasonableness].” Aristech Chem. Int’l Ltd. v.
Acrylic Fabricators Ltd., 138 F.3d 624, 628 (6th Cir. 1998) (citations and internal quotation marks
omitted).
However, “‘great care and reserve should be exercised when extending our notions of
personal jurisdiction into the international field . . . the unique burdens placed upon one who must
defend oneself in a foreign legal system should have significant weight in assessing the
reasonableness of stretching the long arm of personal jurisdiction over national borders.’” City of
Monroe, 399 F.3d at 666 (quoting Asahi, 480 U.S. at 115, 114).
Cognizant of this admonition, jurisdiction is nevertheless reasonable here. The parties have
already demonstrated an ability to conduct discovery with little difficulty across borders, and most
(if not all) of the relevant witnesses speak English. Ohio as a forum has a strong interest in ensuring
that shipments to its ports are reliable. Finally, the plaintiff’s interest in obtaining relief here is
particularly keen, because (in contrast to City of Monroe) plaintiff only sued foreign defendants (and
not U.S. parties), which is its only means for obtaining relief. Balancing these three factors, it is
reasonable to exercise jurisdiction over defendants.
III. Conclusion
For the foregoing reasons, the district court’s grant of summary judgment in favor of the
defendants for lack of personal jurisdiction is REVERSED, and the case is REMANDED to the
district court for further proceedings.