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Patterson v. Blue Offshore Bv

United States District Court, E.D. Louisiana

July 6, 2015

DANNY PATTERSON, SECTION:

ORDER AND REASONS

NANNETTE JOLIVETTE BROWN, District Judge.

This litigation arises from an accident that occurred at sea off the coast of Russia. Presently pending before the Court are a "Re-Urged Motion [to] Dismiss for Lack of Personal Jurisdiction Pursuant to Rule 12(b)(2)"[1] filed by Defendant FMC Kongsberg Subsea AS ("FMC Kongsberg") and a "Motion to Dismiss"[2] filed by Defendant Aker Subsea AS ("Aker Subsea"). Having reviewed the motions, the memoranda in support, the memoranda in opposition, the record, and the applicable law, the Court will grant the pending motions.

I. Background

A. Factual Background [3]

In his complaint, Plaintiff Danny Patterson alleges that he injured his knee and leg on August 21, 2012 while working for Blue Offshore as a Jones Act Seaman on the vessel "M/V Simon Stevin, " then located off the coast of the Russian Federation.[4] Patterson, claiming negligence, alleges that Defendants Blue Offshore BV, Aker Solutions, Inc. ("Aker Solutions"), and FMC Technologies, Inc. ("FMCTI") "jointly and severally" caused his injuries, which rendered him unfit for duty.[5] In an amended complaint, Patterson identifies FMC Eurasia, LLC ("FMC Eurasia"), FMC Kongsberg Subsea AS ("FMC Kongsberg"), and Aker Subsea AS ("Aker Subsea") as likewise "indebted unto [him] for all damages to which he is entitled to receive[.]"[6] Patterson alleges that FMCTI, FMC Eurasia, FMC Kongsberg, Aker Solutions, and Aker Subsea served as contractors charged with providing sub-sea umbilical equipment and/or technical supervision on the project where he sustained his injuries while working for Blue Offshore, and that each defendant is liable to him in connection with their performance of their role in the project.[7] His allegations against each party are as follows.

First, Patterson contends that FMCTI failed to: (1) "provide proper and safe umbilical equipment for the job in question;" (2) "take steps to ensure that the contracted work was performed in a safe and workmanlike manner;" (3) "take steps to remedy the improper and unsafe umbilical equipment once it was known or should have been known to it through the exercise of reasonable care;" and (4) "satisfy, and hence breach of [sic] the terms of its contract of which [he] was a third party beneficiary."[8]

Second, Patterson asserts that Aker Solutions failed to: (1) "provide proper and safe umbilical equipment for the job in question;" (2) "take steps to remedy the improper and unsafe umbilical equipment once it was known or should have been known to it through the exercise of reasonable care;" (3) "satisfy, and hence breach of [sic] the terms of its contract of which [he] was a third party beneficiary."[9]

Third, Patterson contends that Blue Offshore failed to "provide [him] with a safe place to work and [committed] other violations of the Jones Act as will be shown at trial."[10] Fourth, Patterson contends that FMC Eurasia and Aker Subsea "failed to properly provide... technical supervision."[11] Fifth, Patterson asserts that FMC Kongsberg "failed to properly provide... equipment" for the project.[12]

B. Procedural Background [13]

Patterson filed the present lawsuit on February 22, 2013.[14] On July 11, 2013, Patterson filed a "First Supplemental and Amended Complaint, " adding allegations regarding his residence, the location of the accident, and a jury demand.[15] On May 13, 2014, Patterson filed a "First Supplemental and Amending Complaint, " adding FMC Eurasia, FMC Kongsberg, and Aker Subsea as defendants.[16]

On August 26, 2014, FMC Kongsberg filed a "Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to Rule 12(b)(2)."[17] On September 16, 2014, Aker Subsea filed a "Motion to Dismiss."[18] On October 2, 2014, Patterson moved to continue the submission of Aker Subsea's "Motion to Dismiss" in order to allow Patterson to conduct jurisdictional discovery.[19] The Court granted that motion on October 3, 2014, re-setting the submission date of Aker Subsea's "Motion to Dismiss" to January 7, 2015.[20] On November 10, 2014, the Court denied without prejudice FMC Kongsberg's "Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to Rule 12(b)(2), " permitting the parties to conduct jurisdictional discovery and granting FMC Kongsberg leave to reurge its pending motion after January 12, 2015.[21] On February 10, 2015, FMC Kongsberg re-urged its "Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to Rule 12(b)(2)."[22] On March 4, 2015, the Court heard oral argument on FMC Kongsberg's re-urged "Motion to Dismiss for Lack of Jurisdiction Pursuant to Rule 12(b)(2)."[23]

II. Parties' Arguments

A. FMC Kongsberg's "Re-Urged Motion [to] Dismiss for Lack of Personal Jurisdiction Pursuant to Rule 12(b)(2)" [24]

1. Arguments in Support

In support of its motion, FMC Kongsberg argues that the Court should dismiss Patterson's claims against it for lack of personal jurisdiction, because Patterson "is unable to point to any facts that establish that FMC Kongsberg has sufficient contacts with Louisiana or the United States necessary to support this Court's exercise of specific or general personal jurisdiction over it."[25]

FMC Kongsberg contends that the Court lacks general jurisdiction over it, because FMC Kongsberg: (1) is a Norwegian entity with its registered offices in Norway; (2) conducts "absolutely no" business in the United States; (3) "has no offices in the United States;" (4) does not maintain a registered agent for service of process here; (5) "has never been registered to do business in Louisiana or the United States;" (6) "has no bank accounts in the United States;" (7) "has never filed or paid taxes in the United States or in Louisiana;" (8) and "does not hold board meetings in the United States and has no shareholders with registered business addresses in the United States."[26] Thus, FMC Kongsberg argues, it "does not have any type of significant, continuous, or systematic contacts in the United States."[27]

FMC Kongsberg further avers that it did not employ Patterson, did not own the vessel at issue here, "did not enter into any contracts with the United States or obtain any products from the United States, " did not visit or contact any person in the United States in connection with the Russian project where Patterson allegedly sustained his injuries, and conducted no other act or omission in the United States in connection with the incident at issue here.[28]

a. General Jurisdiction

FMC Kongsberg argues that even if Patterson "could show that FMC Kongsberg did engage in some limited regular business within the United States, " any "conceivable contacts" it had "would be insufficient to support this Court's exercise of general jurisdiction over FMC Kongsberg."[29] In support of this assertion, FMC Kongsberg points to statements made in a deposition by Tomas Bille, its senior legal counsel, that: (1) FMC Kongsberg's offices are located in Norway; (2) FMC Kongsberg has never been sued in the United States; and (3) FMC Kongsberg has not, "arranged for work visas to be obtained" for work in the United States on behalf of FMC Kongsberg.[30] FMC Kongsberg maintains that "under any interpretation of the facts and allegations, FMC Kongsberg is in no sense at home' in Louisiana or the United States."[31] Therefore, FMC Kongsberg argues, Patterson has "failed to establish a prima facie case" in support of general jurisdiction.[32]

b. Specific Jurisdiction

FMC Kongsberg further maintains that this Court lacks specific jurisdiction over it, because "there is no claimed relationship between the alleged acts and/or omissions of FMC Kongsberg set forth in plaintiff's Complaint and the State of Louisiana or the United States."[33] Rather, FMC Kongsberg argues, the events at issue here "occurred wholly outside the United States and in the territorial waters of a foreign country, " and Patterson cannot allege or show that "any contract under which FMC Kongsbeg was providing equipment" onboard the vessel involved here "was negotiated, delivered, entered into, executed, or performed in Louisiana or the United States, " nor any other contractual relationship between Patterson and FMC Kongsberg "related to his cause of action."[34] Thus, FMC Kongsberg contends, Patterson has failed to allege the "purposeful availment" required to establish specific jurisdiction.[35]

In support of these assertions, FMC Kongsberg points to statements made in Bille's deposition regarding the contractual structure under which FMC Kongsberg provided equipment for the project at issue here.[36] According to FMC Kongsberg, these statements, along with an affidavit previously submitted by FMC Kongsberg, [37] show that Patterson's claim against it "relates only to alleged acts or omissions that occurred in a foreign country."[38] Further, FMC Kongsberg argues, there is "no factual nexus" between Patterson's tort claims and "any activities alleged to have [been] conducted by FMC Kongsberg in Louisiana or the United States, " depriving the Court of any basis to exercise specific jurisdiction.[39] Additionally, FMC Kongsberg notes that Bille stated in his deposition that FMC Kongsberg "does not employ any U.S. citizens in the United States, " and that "as to the Russian project, which is the subject matter of this litigation, there were no secondment agreements in place for any FMC Kongsberg employees."[40]

c. Results of Jurisdictional Discovery

Finally FMC Kongsberg contends that although Mike Turner of FMCTI stated in a deposition that there were "14 secondment agreements in effect" between March 2012 and February 2013, these employees "worked and lived in Houston, Texas, not Louisiana;" and FMCTI was not involved in work with the Russian gas company at issue here.[41] In light of these statements, and in light of Bille's statements, discussed above, FMC Kongsberg argues that Patterson cannot meet his burden of showing that FMC Kongsberg purposefully availed itself of Louisiana law, or that FMC Kongsberg has "continuous and systematic contacts" with Louisiana.[42] Indeed, FMC Kongsberg contends, Patterson "has failed to present evidence of any contacts between FMC Kongsberg and Louisiana, " rendering the exercise of general jurisdiction inappropriate.[43] Further, FMC Kongsberg asserts, Patterson cannot make the requisite showing in support of specific jurisdiction, because FMC Kongsberg has presented evidence that (1) "nothing it did" related to the project at issue here "occurred in the State of Louisiana, " and that (2) none of the seconded FMC Kongsberg employees "worked in Louisiana... worked on the Russian project in question... [or] worked with FMC Kongsberg's ultimate customer in Russia."[44]

2. Patterson's Opposition[45]

In opposition to FMC Kongsberg's motion, Patterson contends that this Court may exercise general jurisdiction over FMC Kongsberg, for several reasons.[46] First, Patterson argues, FMC Kongsberg seconded 17 employees to Texas between 2009 to 2012.[47] According to Patterson, FMC Kongsberg maintained an "employment relationship" with these seconded employees.[48]

Patterson argues that the depositions of Bille and Turner provide "further indications of the ongoing continuous contacts that FMC Kongsberg has with the United States."[49] According to Patterson, Bille stated that he "frequently" traveled to Texas to attend meetings with the "global legal team."[50] Patterson asserts that Bille also stated that the FMC "subsea" entities all perform "essentially the same type of work, " subsea work, distinguishing the present case from a situation in which a large multinational corporation "has different product lines manufactured from entirely separate and distinct entities across the globe, "[51] or from a scenario in which "individuals from Norway are being temporarily trained in the United States on specialized technology that is controlled out of Houston."[52] Patterson further indicates that Turner stated in his deposition that he had been seconded from FMCTI to FMC Kongsberg from 2010 to 2014, and "made clear" at that time that FMCTI also seconds employees from its office in Houston to FMC Kongsberg.[53]

Patterson contends that although "case law has rejected the theory of general jurisdiction based upon a few employees working in a state, "[54] the present case is different, because FMC Kongsberg maintains a "specific system'" of secondment agreements.[55]Additionally, Patterson argues, it is "uncontested that [FMC] Kongsberg anticipates" making further secondments "on an ongoing... basis" in the future.[56] Patterson further maintains that the number of FMC Kongsberg employees stationed in the United States distinguishes the present case from others.[57] For the foregoing reasons, Patterson contends, "FMC Kongsberg is all but operating out of Houston."[58]

Patterson argues that although this issue may be a novel one, the requisite "continuous and systematic connections" with the United States are present here, because FMC Kongsberg's practice of forming secondment agreements "clearly evidences" its "intention... to move its employees back and forth" between Norway and the United States, and sets this case apart from those involving the "potentially fortuitous occurrence of a few workers in a jurisdiction."[59]

3. FMC Kongsberg's Reply[60]

In further support of the instant motion, FMC Kongsberg argues that Patterson has failed to demonstrate that it has "any contacts with the State of Louisiana, much less the... continuous and systematic contacts necessary to support the exercise of general jurisdiction."[61] FMC Kongsberg also contends that Patterson asserts a broader interpretation of Federal Rule of Civil Procedure 4(k)(2) "than this Court has accepted, " by arguing that this Court may exercise personal jurisdiction over it based solely on its ties to the United States a whole.[62] According to FMC Kongsberg, personal jurisdiction is only appropriate under Rule 4(k)(2) if a defendant has the requisite minimum contacts with the forum state.[63] Here, FMC Kongsberg maintains, these contacts are lacking.[64]

In the alternative, FMC Kongsberg argues that even if personal jurisdiction could be founded upon a defendant's contacts with the United States, the secondment agreements at issue here do not support the exercise of general jurisdiction.[65] According to FMC Kongsberg, Patterson's claim that the entity is "all but operating out of Houston" is overstated, because FMC Kongsberg employs over 4600 people in Norway, but has only entered into secondment agreements with 14 of its employees.[66] FMC Kongsberg further argues that Patterson fails to acknowledge provisions in the secondment agreements and statements in Bille's and Turner's depositions "that demonstrate that the costs associated with payroll and expenses" of the seconded employees "were paid by [FMCTI]."[67] The secondment agreements, FMC Kongsberg contends, also state that FMCTI was responsible for seconded employees' schedules, work assignments, and supervision.[68]

FMC Kongsberg asserts that no legal authority supports the exercise of general jurisdiction because: (1) "an employee of a foreign corporation travels to the United States;" or because (2) a "foreign company divides its product [or] services" in a certain way, or because (3) FMC Kongsberg "has established a policy or procedure for orderly secondment of employees to work on other projects where they may be needed."[69] Additionally, FMC Kongsberg maintains, "no case has held [that] a foreign corporation is subject to general jurisdiction in Louisiana because there is an affiliate company located in Houston."[70] Finally, FMC Kongsberg contends that although the secondment agreements at issue here are "possibly sufficient to constitute a presence in Houston, " that presence is "minimal, " "sporadic" at best, "and of small consequence, " and does not rise to the level of "continuous contacts ...


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