B.C., D.S. v. Mt Marida Marguerite Schiffahrts, Marida Tankers, Inc., Heidmar, Inc. and XYZ Ship Owner, XYZ Ship Employer

Lipcon, Margulies, Alsina & Winkleman, P.A

October 1, 2014

B.C., D.S. v. Mt Marida Marguerite Schiffahrts, Marida Tankers, Inc., Heidmar, Inc. and XYZ Ship Owner, XYZ Ship Employer

B.C., D.S.,
Plaintiffs/Appellants,

vs.

MT MARIDA MARGUERITE SCHIFFAHRTS,
MARIDA TANKERS, INC., HEIDMAR, INC.,
Defendants/Appellees,

and

XYZ SHIP OWNER, XYZ SHIP EMPLOYER,
Defendants.

                            

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

                            

REPLY BRIEF OF APPELLANTS

                            

MICHAEL A. WINKLEMAN
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
2 S. Biscayne Boulevard, Suite 1776
Miami, Florida 33131
Telephone No. (305) 373-3016
Facsimile No. (305) 373-6204
Attorneys for Appellants

TABLE OF CONTENTS

PAGE NO.

TABLE OF AUTHORITIES                                                                             iii

ARGUMENT                                                                                                     1

  1. Nothing contained in any or all of the Defendant/Appellees’ response briefs changes the simple fact that the Seafarers were deprived of their day in court by the district court’s failure to give them an opportunity to conduct limited jurisdictional discovery into the business operations and relationship of the Defendants/Appellees. 1
  2. Marida Marguerite’s arguments regarding service of process are devoid of merit both technically and practically, as Marida Marguerite was certainly given adequate notice of the instant action. 3
  3. The Seafarers should have been entitled to jurisdictional discovery based on their well-pled allegations. 6
    1. Contrary to Defendants/Appellees’ argument, the Seafarers made a sufficient showing of interconnectedness between the Defendants/Appellees such that jurisdictional discovery should have been allowed to fully respond to Marida Marguerite’s Motion to Dismiss. 7
    2. The Seafarers repeatedly demonstrated a substantial and significant need to conduct discovery for purposes of substantively responding to Marida Tankers’ Motion to Dismiss. 8
  4. The factual arguments raised by Defendants/Appellees in the responsive briefs further indicate that the Seafarers needed jurisdictional discovery to substantively respond to Marida Marguerite’s Motion to Dismiss, especially when many of the facts are contradicted by information in the public domain. Even still, however, the Seafarers made a prima facie showing of jurisdiction with the limited information they had at their disposal.                                                                                                   11
  5. The Seafarers’ case should not have been dismissed on grounds of forum non conveniens because United States law, namely the Jones Act, applied to the case and because Connecticut was a convenient forum for an action that involved entities located in Connecticut. 15
    1. The district court committed reversible error when, contrary to binding precedent from the Second Circuit, it failed to conduct the choice-of-law analysis before considering the forum non conveniens 15
    2. Contrary to Defendants/Appellees’ contention, the Defendants/Appellees – and not the Seafarers – were the parties forum shopping when they moved for a venue that only one of the parties (Marida Marguerite) was based out of (Germany) instead of the more convenient venue that all of them had connections to (Connecticut). 16

CONCLUSION                                                                                                21

CERTIFICATE OF COMPLIANCE                                                                22

CERTIFICATE OF SERVICE                                                                         23

TABLE OF AUTHORITIES

CASES                                                                                              PAGE NO.                                                                                                        

Ackermann v. Levine, 788 F.2d 830 (2d Cir. 1986)                                            5

Amerbelle Corp. v. Hommell, 272 F.Supp.2d 189 (D. Conn. 2003)                 14

Antypas v. Cia. Maritima San Basilio, S. A., 541 F.2d 307 (2d Cir. 1976)  15-16

Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004)                                              5

Cruz v. Maritime Co. of Philippines, 702 F.2d 47 (2d Cir. 1983)                     16

Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S. Ct. 1731, 26 L. Ed. 2d 252 (1970)          18

Iragorri v. United Techs. Corp., 274 F.3d 65 (2d Cir. 2001)                            17

Jurgens v. Poling Transp. Corp., 113 F.Supp.2d 388 (E.D.N.Y. 2000)

Kelley v. Southern Pacific Co., 419 U.S. 318, 95 S.Ct. 472, 42 L.Ed.2d 498 (1974)                       10

Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958)          10

Melgares v. Sikorsky Aircraft Corp., 613 F. Supp. 2d 231, 243 (D. Conn. 2009) 19

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950)                     3-4

PDK Labs Inc. v. Friedlander, 103 F.3d 1105 (2d Cir. 1997)                          14

Research Systems Corp. v. IPSOS Publicite, 276 F.3d 914 (7th Cir. 2001)         5

Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002)            4

Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir. 2009)   16

United States v. Wilkerson, 361 F.3d 717 (2d Cir. 2004)                                  16

Vertrue Inc. v. Meshkin, 429 F.Supp.2d 479 (D. Conn. 2006)                    13-14

Walker v. Braus, 995 F.2d 77 (5th Cir. 1993)                                                  10

Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000)                    19

STATUTES

Conn. Gen. Stat. § 33-929(b)                                                                          4-5

Conn. Gen. Stat. § 52-59b                                                                               13

ARGUMENT

  1. Nothing contained in any or all of the Defendant/Appellees’ response briefs changes the simple fact that the Seafarers were deprived of their day in court by the district court’s failure to give them an opportunity to conduct limited jurisdictional discovery into the business operations and relationship of the Defendants/Appellees.

The Plaintiffs/Appellants, B.C. and D.S. (collectively referred to as the “Seafarers”), filed their Initial Brief on May 29, 2014, raising multiple arguments of error on appeal in connection with:

  • The district court denying the Seafarers an opportunity to conduct discovery on Defendant/Appellee, MT MARIDA MARGUERITE SCHIFFAHRTS[1] (“Marida Marguerite[’s]”) contacts with Connecticut or Defendants/Appellees’ base of operations in the United States, and instead, requiring Seafarers to respond to the motions to dismiss without a means of verifying or challenging the facts raised by Defendants/Appellees’ motions;
  • The district court dismissing Marida Marguerite for lack of personal jurisdiction, despite its continuous and systematic contractual relationships with two entities located in Connecticut – HEIDMAR, INC. (“Heidmar”) and MARIDA TANKERS, INC. (“Marida Tankers”) – since 2008 for the purpose of managing and marketing its vessel; and,
  • The district court granting Marida Tankers’ Motion to Dismiss for Forum Non Conveniens and failing to conduct a choice-of-law analysis as required under binding precedent.

On August 28, 2914, all three Defendants/Appellees filed separate responsive briefs. [D.E. 71, 72, 73].  Many of the arguments raised by the three Defendants/Appellees, however, are the same and/or overlap.  Therefore, in the interest of judicial economy, the Seafarers submit the instant reply brief as their response to all three Defendants/Appellees and show herein that:

  • Marida Marguerite was properly served through its agent Heidmar as well as through the Hague Convention, and it certainly had notice of the lawsuit;
  • The factual statements Defendants/Appellees raise in their responsive briefs prove how discovery was necessary for the Seafarers to substantively respond to their motions to dismiss – especially when most of such facts are contradicted by information in the public domain; and,
  • The cases relied on by the Defendants/Appellees do not change the fact that the district court failed to follow binding precedent from the Second Circuit when it did not conduct the choice-of-law analysis before determining the forum non conveniens
  1. Marida Marguerite’s arguments regarding service of process are devoid of merit both technically and practically, as Marida Marguerite was certainly given adequate notice of the instant action.

Marida Marguerite’s arguments regarding service of process are all without merit.  The Seafarers served and/or attempted to serve Marida Marguerite on multiple occasions, through multiple means, all in good faith.

First, on July 9, 2012, State Marshal Robert S. Miller served Marida Marguerite through Heidmar as its agent. [Appx. 98].

Second, on August 10, 2012, the Seafarers served Marida Marguerite directly to its address in Germany by registered mail, return receipt requested. [Appx. 149].

Third, the Seafarers attempted to serve Marida Marguerite through the Secretary of the State.  However, Seafarers’ counsel was advised by telephone by the Secretary of the State that if they were not listed as Marida Marguerite’s registered agent, they would not accept service on its behalf.

These good faith efforts constitute valid service of process, which undeniably put Marida Marguerite on notice of the instant action.  Long-standing jurisprudence, particularly United States Supreme Court decisions following Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950), establish that although the U.S. Constitution does not require any particular means of service of process, the method selected must be reasonably calculated to provide notice and an opportunity to respond (which is precisely what occurred herein).  In Mullane, the Supreme Court stated as follows:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Mullane, 339 U.S. at 314.

Under Mullane, the reasonableness and constitutional validity of any chosen method may be defended on the grounds that it is in itself reasonably calculated to inform those affected.  In proper circumstances, this broad principle unshackles the federal courts from anachronistic methods of service. See, e.g., Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002).

Furthermore, said service of process by registered mail, return receipt requested, complies with Conn. Gen. Stat. § 33-929(b), which states, in relevant part:

(b) A foreign corporation may be served… by registered or certified mail, return receipt requested, addressed to the secretary of the foreign corporation… if the foreign corporation: (1) Has no registered agent or its registered agent cannot with reasonable diligence be served….

Conn. Gen. Stat. § 33-929(b) (emphasis added).

Herein, Marida Marguerite admitted that it is not registered to do business in Connecticut [Appx. 27] and, therefore, does not have a registered agent in the State of Connecticut.  Accordingly, the Seafarers’ service of process by registered mail, return receipt requested, addressed to the Secretary of Marida Marguerite, complied with Conn. Gen. Stat. § 33-929(b).

Next, as to Marida Marguerite’s argument that said service of process does not comply with the Hague Convention, this argument also fails because the Hague Convention expressly allows for service by postal channels.  Article 10 subparagraph (a) of the Hague Convention states: “the present Convention does not interfere with (a) the freedom to send judicial documents, by postal channels, directly to persons abroad…” Id.

Federal courts – including binding precedent from the Second Circuit – hold that Article 10(a) includes service of process by mail, reasoning that “send judicial documents” encompasses “service of process.” See Ackermann v. Levine, 788 F.2d 830, 838-40 (2d Cir. 1986); Brockmeyer v. May, 383 F.3d 798, 802 (9th Cir. 2004); Research Systems Corp. v. IPSOS Publicite, 276 F.3d 914, 926 (7th Cir. 2001).

Accordingly, consistent with this Court’s binding precedent construing Article 10(a) of the Hague Convention to permit service of process by mail, the Seafarers properly effected service of process upon Marida Marguerite.  As such, Marida Marguerite’s arguments regarding service of process are devoid of merit.

  1. The Seafarers should have been entitled to jurisdictional discovery based on their well-pled allegations.

Next, as to the jurisdictional discovery, Defendants/Appellees inundate the Court with facts in support of the district court denying the Seafarers discovery and granting both motions to dismiss.  Those facts include the alleged extent of the parties’ business relationship, the entities’ corporate ownership, where the contracts between the parties were executed, where the person signing the contract(s) resided, the amount of times the vessel did (or did not) visit Connecticut ports, etc.

The Seafarers certainly agree that all of these facts are relevant for a court’s determination of jurisdiction over a party and/or case, but that missed the point.  The point is simply that the Seafarers should have had an opportunity to verify and challenge the veracity of these facts, especially considering that (as set forth in further detail below) so many of them are contradicted by the limited information the Seafarers were able to obtain from the public domain.  The Seafarers also argue that they should have had an opportunity to draw out additional facts which would assist them to substantively respond to Marida Marguerite’s and Marida Tankers’ motions to dismiss.

  1. Contrary to Defendants/Appellees’ argument, the Seafarers made a sufficient showing of interconnectedness between the Defendants/Appellees such that jurisdictional discovery should have been allowed to fully respond to Marida Marguerite’s Motion to Dismiss.

In response to the Seafarers’ appeal concerning the district court’s first discovery order (denying discovery to respond to Marida Marguerite’s Motion to Dismiss for lack of personal jurisdiction), Marida Marguerite’s arguments are that discovery was appropriately denied because 1) the Seafarers failed to serve Marida Marguerite, and 2) they failed to make a sufficient showing for discovery. [D.E. 71, p. 15].

The first argument regarding service is addressed above. Marida Marguerite’s second point fails because the Seafarers sufficiently showed the interconnectedness between Marida Marguerite and two entities that were located in Connecticut (Heidmar and Marida Tankers). [Appx. 32-52].  The Seafarers showed that Marida Marguerite owned the vessel involved in the subject vessel, that it chartered such vessel to Marida Tankers, and that it had the vessel in a pool operated by Heidmar. [Id.]

The Seafarers further established that both Heidmar and Marida Tankers were located in Connecticut. [Id.]  Any denial of Heidmar’s and/or Marida Tankers’ Connecticut location is wholly disingenuous considering that the Seafarers used information directly from the companies’ websites. [Id.; see specifically Appx. 47 “Marida Inc. is managed by Nordic WOMAR, with offices inStamford (emphasis added)].

Furthermore, in requesting jurisdictional discovery, the Seafarers specifically described the type of information that would likely be revealed. [Appx. 35]. They explained to the district court that the limited discovery would reveal “written contracts and other documentation which will spell out the relationship between the entities, and the full extent of the connection with the jurisdiction.” [Id.]

All of this information should have been sufficient to allow the Seafarers to conduct limited jurisdictional discovery prior to the district court considering (and eventually granting) Marida Marguerite’s Motion to Dismiss.  Instead, the district court left the Seafarers without any other option but to rely exclusively upon Marida Marguerite’s affidavit for resolution of the jurisdictional issue which, as argued, was an abuse of the court’s discretion.

  1. The Seafarers repeatedly demonstrated a substantial and significant need to conduct discovery for purposes of substantively responding to Marida Tankers’ Motion to Dismiss.

In response to the Seafarers’ appeal concerning the district court’s second discovery order (denying discovery to respond to Marida Tankers’ Motion to Dismiss for forum non conveniens), Marida Tankers’ main arguments are that the Seafarers failed to allege sufficient facts to justify discovery and failed to explain to the district court what specific discovery would be required to demonstrate that the action was properly commenced in the U.S.[2] [Appx. 72, pp. 13-14].  These arguments are easily disposed of.

Contrary to such arguments, in their Motion to Stay, the Seafarers pointed to the same evidence and information that they relied on previously for the first discovery order, including the charter and pool agreements between the Defendants/Appellees – two of which were located in Connecticut (Heidmar and Marida Tankers). [Appx. 249-255].

Additionally, the Seafarers went into detail about the information necessary for the court’s choice-of-law and forum non conveniens analyses, and thereafter explained that the discovery was necessary in order “to determine whether Defendants generally, and Marida Tankers specifically, have a substantial base of operations in the United States” – the most important factor in the analysis. [Appx. 252].

Further, the Seafarers described the “specific discovery” that would be required, including “written discovery as well as depositions of [] Corporate Representatives of the relevant parties” which was expected to “yield evidence regarding Defendants’ contacts with the jurisdiction.” [Appx. 253].

In addition to the foregoing, the Seafarers filed a Supplemental Memorandum on August 1, 2013, wherein they continued to address the need for discovery adding that it would help ascertain the Seafarers’ true employers for purposes of the borrowed-servant doctrine[3], and it would help the Seafarers determine the extent of the charterer’s (Marida Tankers’) control of the vessel – issues which would potentially grant the court jurisdiction over the parties and the case under general maritime law. [Appx. 516-551].[4]

In sum, the Seafarers alleged more than enough facts and demonstrated a substantial need for discovery, and the district court’s failure to allow the Seafarers to conduct such discovery was an abuse of discretion which hindered the Seafarers’ ability to fully respond to Marida Tankers’ Motion to Dismiss.

  1. The factual arguments raised by Defendants/Appellees in the responsive briefs further indicate that the Seafarers needed jurisdictional discovery to substantively respond to Marida Marguerite’s Motion to Dismiss, especially when many of the facts are contradicted by information in the public domain. Even still, however, the Seafarers made a prima facie showing of jurisdiction with the limited information they had at their disposal.

In Defendants/Appellees’ response briefs, all of the Defendants/Appellees (and particularly Marida Marguerite and Heidmar) discuss detailed facts in support of the argument that Marida Marguerite was properly dismissed for lack of personal jurisdiction.

First and foremost, this proves how much the Seafarers needed jurisdictional discovery to fully and fairly respond to Marida Marguerite’s Motion to Dismiss.  In addition, a substantial portion of the facts that these Defendants/Appellees discuss is directly contradicted by information the Seafarers were able to find in the public domain.

For instance, Heidmar claims that it is the not the general agent and commercial manager of the Marida Tankers pool. [D.E. 73, p. 7].  This is directly contradicted by the press release issued by Heidmar itself stating: “Heidmar is the general agent and commercial manager of five pools [including]… Marida Tankers” [Appx. 38].[5]  Heidmar refers to this press release as “outdated” [D.E. 73, p. 6], but the Seafarers have no way of knowing whether or not it is outdated without jurisdictional discovery.

In addition, Marida Tankers claims it does not have offices in Connecticut. [D.E. 72, p. 10].  This too is directly contradicted by Marida Tankers’ own website which states: “Marida Inc. is managed by Nordic WOMAR, with offices inStamford [Appx. 47] (emphasis added).

Defendants/Appellees also claim that none of the contracts were executed in Connecticut. [D.E. 71, p. 23; D.E. 73, p. 25].  Yet, once again, this is directly contradicted by information the Seafarers obtained. In reality, both of the agreements among the Defendants/Appellees were executed by John Edmondson [Appx. 129, 145], who according to documentation available to the Seafarers in the public domain, worked out of Heidmar’s corporate headquarters in Connecticut. [Appx. 146-148].  In fact, Heidmar does not dispute that John Edmonson resided in Connecticut when he signed the agreements. [D.E. 71, p. 23].

If someone from Connecticut executed both contracts, it is reasonable to conclude that those contracts were at least in part negotiated and/or executed in Connecticut by the individual who signed them. At the very least, the Seafarers should have had an opportunity to conduct discovery on that issue (among many others).

To that point, in addition to relying on facts contradicted by evidence, Defendants/Appellees also rely on information and facts that the Seafarers had no way of verifying without discovery, including: 1) where the negotiations for the ransom were conducted [D.E. 72, p. 8]; 2) where the arrangements for repatriation were conducted [Id.]; 3) where the negotiation of the Seafarers’ back wages was conducted [Id.]; 4) whether agents of Marida Marguerite ever visited Connecticut [D.E. 71, 21]; 5) whether Marida Marguerite has ever transacted business activity in Connecticut [Id.]; and, 6) whether Marida Marguerite owns, uses or possesses real property (or computer) situated within the state of Connecticut [Id.].

  • The Seafarers made a prima facie showing of personal jurisdiction over Marida Marguerite under Conn. Gen. Stat. § 52-59b.

Nevertheless, even without the discovery, the Seafarers were still able to make a prima facie showing of jurisdiction over Marida Marguerite under Conn. Gen. Stat. § 52-59b.  Specifically, under the factors considered to determine whether an out-of-state defendant falls under that statute by “transacting business” in Connecticut[6], the Seafarers established that Marida Marguerite met three out of the four factors.

First, Marida Marguerite had ongoing contractual relationships with two entities located in Connecticut – Heidmar and Marida Tankers – since 2008.  Second, as discussed above, the relevant contracts were executed (and likely negotiated) in Connecticut.  Third, the pool agreement subjected Marida Marguerite and its vessel to supervision by a corporation located in Connecticut (Heidmar). [D.E. 49, p. 38].

Considering all of the above and the fact that the district court was required to construe all evidence in the light most favorable to the Seafarers[7], the Seafarers sufficiently made the required prima facie showing to establish personal jurisdiction over Marida Marguerite.

  1. The Seafarers’ case should not have been dismissed on grounds of forum non conveniens because United States law, namely the Jones Act, applied to the case and because Connecticut was a convenient forum for an action that involved entities located in Connecticut.

With regard to the district court’s order on Marida Tankers’ Motion to Dismiss for Forum Non Conveniens, the Seafarers first maintain that the district court committed reversible error of law when it failed to conduct a choice-of-law analysis before considering the forum non conveniens factors. The district court also abused its discretion in finding that Connecticut was an inconvenient forum, instead of realizing that the Defendants/Appellees – not the Seafarers – were the parties forum shopping.

  1. The district court committed reversible error when, contrary to binding precedent from the Second Circuit, it failed to conduct the choice-of-law analysis before considering the forum non conveniens

As argued by the Seafarers, the district court erred when it failed to conduct the choice-of-law analysis before deciding whether the case should be dismissed for forum non conveniens, as required under binding precedent – Antypas v. Cia. Maritima San Basilio, S. A., 541 F.2d 307 (2d Cir. 1976).

In their response briefs, the only argument raised by Defendants/Appellees, Heidmar and Marida Tankers[8], to this point is that Antypas was no longer binding precedent following the decision in Cruz v. Maritime Co. of Philippines, 702 F.2d 47 (2d Cir. 1983) (per curiam).  Contrary to their argument, however, the district court was bound by the decision of Antypas, unless Antypas was specifically overruled either by an en banc panel of the Second Circuit or by the Supreme Court. United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004) (citations omitted). The plethora of district court cases abiding by Cruz that Heidmar and Marida Tankers cited has no bearing.  The fact remains that Cruz was not an en banc ruling, and the Court did not circulate the opinion to all active members of the Second Circuit prior to filing without objection. Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 67 (2d Cir. 2009).

The district court’s order is therefore reversible error.

  1. Contrary to Defendants/Appellees’ contention, the Defendants / Appellees – and not the Seafarers – were the parties forum shopping when they moved for a venue that only one of the parties (Marida Marguerite) was based out of (Germany) instead of the more convenient venue that all of them had connections to (Connecticut).

A common theme throughout Defendants/Appellees’ response briefs is that the Seafarers were forum shopping when they selected Connecticut to file their lawsuit.  In actuality, it was the exact opposite, as cautioned by the Second Circuit.

Specifically, in Iragorri v. United Techs. Corp., 274 F.3d 65 (2d Cir. 2001), the Second Circuit cautioned district courts to “be mindful that, just as plaintiffs sometimes choose a forum for forum-shopping reasons, defendants also may move for dismissal under the doctrine of forum non conveniens not because of genuine concern with convenience but because of similar forum-shopping reasons. District courts should therefore arm themselves with an appropriate degree of skepticism in assessing whether the defendant has demonstrated genuine inconvenience and a clear preferability of the foreign forum.” Iragorri, 274 F.3d at 75 (emphasis added).

Despite the Second Circuit’s instruction that district courts should “arm themselves with… skepticism,” the district court herein did the exact opposite.  It failed to realize that Marida Tankers – an alleged Marshal Islands entity – was moving to dismiss the case to a country that only one of the parties had connections to (Marida Marguerite), instead of maintaining the case in Connecticut, where all parties had connections.  It also failed to realize that Marida Tankers did not come close to meeting its burden, and Marida Tankers did not convince otherwise in its response brief.

Specifically, none of the Defendants/Appellees even attempt to run through the choice-of-law analysis.  This Honorable Court should therefore deem such failure as Defendants/Appellees’ concession that, if the district court was required to conduct the choice-of-law analysis, the case should have remained in Connecticut because United States law applies to the Seafarers’ claims.

As to the forum non conveniens analysis, the district court failed to properly analyze the first factor because it did not give any deference to the Jones Act Seafarers’ choice of forum.

The district court’s analysis for the second factor (whether Germany was an adequate alternative forum) was also incorrect.  Specifically, the court did not give any weight to the fact that Heidmar is not amenable to service of process in Germany because it improperly concluded that it was not a proper party to the case and that either Hiedmar UK Ltd. or WOMAR Holdings Inc. was instead the appropriate party [Appx. 656]. That determination was not appropriate for Marida Tankers’ (not Heidmar’s) Motion to Dismiss.  And it was not appropriate in light of Heidmar owning and/or controlling both Heidmar UK and WOMAR Holdings Inc. [D.E. 73, p. 7].

In making such inappropriate (and false) conclusions, the district court failed to follow the U.S. Supreme Court directive in Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 310, 90 S. Ct. 1731, 1734-35, 26 L. Ed. 2d 252 (1970) (“If, as stated in Bartholomew v. Universe Tankships Inc., 263 F.2d 437, the liberal purposes of the Jones Act are to be effectuated, the facade of the operation must be considered as minor, compared with the real nature of the operation and a cold objective look at the actual operational contacts that this ship and this owner have with the United States.”) (emphasis added).  The Seafarers herein should have been given such a “cold objective look” at the Defendants/Appellees’ actual operations in the U.S.

As to the third and final step of the analysis (the private and public interest factors), the district court failed to even acknowledge that Marida Tankers never argued Connecticut was an inconvenient forum.  Even Marida Tankers, in its response brief, concedes that it did not make this argument. [D.E. 72, p. 23].

Nevertheless, however, these factors weighed in favor of maintaining the suit in Connecticut.  The only relevant private interest factors were access to sources of proof and witnesses.  Marida Tankers had the burden of proving 1) the costs of transporting physical evidence are excessively burdensome (Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 107 (2d Cir. 2000)); and, 2) essential witnesses are unwilling to testify or provide evidence and that this court would lack the power to compel their testimony (Melgares v. Sikorsky Aircraft Corp., 613 F. Supp. 2d 231, 243 (D. Conn. 2009)).  Marida Tankers failed to do either.

Again, however, the Seafarers showed that the only evidence it had obtained was in English and would have to be translated and shipped to German, which would be substantially costly. [Appx. 358-359]. The Seafarers also showed that a majority of the witnesses were located in the United States and/or were under the control of the parties located in the United States. [Id.]

Lastly, the Seafarers also demonstrated that the public interest factors weighed in favor of maintaining the suit in Connecticut based on state of Connecticut having an interest in protecting and obtaining the most efficient resolution of the controversy for local entities, Marida Tankers and Heidmar, and the important policy considerations to protect seamen such as Seafarers as wards of the Admiralty Courts and to treat alien shipowners the same as U.S. shipowners. [Appx. 360-362].

In sum, considering all of the foregoing, Marida Tankers’ Motion to Dismiss should have been denied as it was clear that Connecticut was a convenient forum and Marida Tankers was simply forum shopping.  The district court’s failure to deny same was an abuse of discretion.

CONCLUSION

In conclusion, the district court erred by 1) failing to allow the Seafarers to conduct limited, jurisdictional discovery to respond to Marida Marguerite’s and Marida Tankers’ motions to dismiss; 2) relying on facts that were contradicted by the Seafarers’ evidence to find that it did not have personal jurisdiction over Marida Marguerite; 3) failing to conduct a choice-of-law analysis in violation of well-settled precedent from the U.S. Supreme Court and the Second Circuit and, 4) finding that Germany was a more convenient forum.

Accordingly, the Seafarers respectfully request that this Honorable Court enter an order reversing the district court’s orders concerning limited discovery and remand the case to the district court with directions to allow the Seafarers to conduct jurisdictional discovery concerning Marida Marguerite’s contacts with Connecticut and the Defendants/Appellees base of operations in the United States.  Additionally, the Seafarers request that this Court reverse the district court’s orders on Marida Marguerite’s and Marida Tankers’ Motions to Dismiss and remand the case to the district court with directions to apply U.S. law, including the Jones Act, and that personal jurisdiction is proper over Marida Marguerite and the case should not be dismissed pursuant to the doctrine of forum non conveniens.

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitation set forth in FRAP 32(a)(7).  This brief contains 4,693 words.

RESPECTFULLY SUBMITTED,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Appellants
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, FL 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204

By: /s/ Michael A. Winkleman                
MICHAEL A. WINKLEMAN
Bar No. 36719

[1] a/k/a MT Marida Marguerite Schifffahrtsgesellschaft mbH & Co KG

[2] Marida Tankers’ third (and final) argument is that the Seafarers failed to cite specific authority for the proposition that the district court was required to grant them discovery.  As stated at the hearing with Judge Underhill on May 22, 2013 [Appx. 324] as well as in the Seafarers’ Initial Brief [D.E. 49, 12], the Seafarers readily acknowledge that it is within the court’s discretion to grant discovery.  However, it is a discretion that the district court abused herein.

[3] Under the borrowed-servant doctrine, a seaman employed by one entity may be considered a temporary or shared employee with other entities for purposes of the Jones Act. Jurgens v. Poling Transp. Corp., 113 F.Supp.2d 388, 402-03 (E.D.N.Y. 2000) (citing Kelley v. Southern Pacific Co., 419 U.S. 318, 324, 95 S.Ct. 472, 476, 42 L.Ed.2d 498 (1974) (applying Federal Employers’ Liability Act); Kernan v. American Dredging Co., 355 U.S. 426, 439, 78 S.Ct. 394, 401, 2 L.Ed.2d 382 (1958); Walker v. Braus, 995 F.2d 77 (5th Cir. 1993) (applying borrowed servant doctrine under Jones Act)).  Therefore, under that doctrine, the Seafarers could have potentially been employed by both the shipowner Marida Marguerite, and the charterer Marida Tankers.

[4] The Seafarers refer to footnote 11 of their Initial Brief, which discusses these two issues in further detail. [D.E. 49, pp. 32-33].

[5] To the extent that Heidmar argues the arrangement between the entities had changed by the date of the Seafarers’ incident, it is irrelevant because Heidmar still admits to having ownership (and likely control) over the entity it points the proverbial finger to – WOMAR Holdings LLC.  Specifically, Heidmar admits that it is the “stockholder in Marida Tankers’ parent company, WOMAR Holdings LLC” and that it “had a 50% ownership in WOMAR Holdings LLC.” [D.E. 73, p. 7].

[6] Pursuant to Vertrue Inc. v. Meshkin, 429 F.Supp.2d 479 (D. Conn. 2006), those factors are: (1) “whether the defendant has an on-going contractual relationship with a [Connecticut] corporation;” (2) “whether the contract was negotiated or executed in [Connecticut] and whether, after executing a contract with a [Connecticut] business, the defendant visited [Connecticut] for the purpose of meeting with parties to the contract regarding the relationship;” (3) “what the choice-of-law clause is in any such contract;” and (4) “whether the contract requires franchisees to send notices and payments into the forum state or subjects them to supervision by the corporation in the forum state.” Id. at 490 (emphasis added).

[7] “When there has been no discovery conducted, the plaintiff need only assert ‘facts constituting a prima facie showing of personal jurisdiction’ to defeat a motion to dismiss.” Amerbelle Corp. v. Hommell, 272 F.Supp.2d 189, 192 (D. Conn. 2003) (citing PDK Labs Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997)). That showing is made through the complaint, affidavits or exhibits, which “in the absence of an evidentiary hearing or a trial on the merits… are construed in the light most favorable to the plaintiff.” Amerbelle, 272 F.Supp.2d at 192 (emphasis added)

[8] It is noteworthy that Marida Tankers admits in its response brief [D.E. 72, p. 16] that it too consistently agreed with the Seafarers at the district court level that the district court was required to conduct the choice-of-law analysis before the forum non conveniens analysis in its Motion to Dismiss [Appx. 237-242] and its Reply [Appx. 457-463].  Marida Tankers should therefore be estopped from taking a different position in this appeal.