Douglas Nelson v. The Crew Network Inc, et. al.

Lipcon, Margulies, Alsina & Winkleman, P.A

July 13, 2011

Douglas Nelson v. The Crew Network Inc, et. al.

Motion to Stay Pending Jurisdictional Discovery

This seaman brought his claim in the Southern District of Florida after being injured working aboard a vessel owned by Defendant(s). Defendant Trinity sought to have the case dismissed for lack of personal jurisdiction and the doctrine of forum non conveniens. In this motion the Plaintiff sought a stay on the ruling of Defendant’s motion to dismiss until such time as jurisdictional discovery into the Defendant’s ties with this forum has been completed. In support of its motion, Plaintiff cited numerous cases supporting the proposition that jurisdictional discovery is appropriate under such circumstances.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO: 11-21282-CV-MARTINEZ/MCALILEY
DOUGLAS NELSON,
Plaintiff,

v.

THE CREW NETWORK, INC.,
FRASER YACHTS FLORIDA, INC.,
FRASER YACHTS WORLDWIDE,
TRINITY OVERSEAS SERVICES LIMITED,
and XYZ CORPORATION,
Defendants.
__________________________________________/

PLAINTIFF’S MOTION TO STAY THE CASE PENDING COMPLETION OF LIMITED JURISDICTIONAL DISCOVERY

COMES NOW, Plaintiff, DOUGLAS NELSON, by and through undersigned counsel, and hereby moves to stay the case, including ruling on all outstanding motions, [D.E. 17] and [D.E. 18],[1] pending completion of 200 days of limited jurisdictional discovery. As grounds thereof, Plaintiff alleges as follows:

I. Background.

This is an action brought on behalf of a Seafarer arising from injuries suffered while working for Defendant(s) Employer(s), aboard the vessel controlled and/or operated by Defendant(s) Ship-owners.

On July 1st, 2011, Defendant Trinity Overseas Services Limited (hereinafter “Trinity”), filed a Motion to Dismiss for Lack of Personal Jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(2). [D.E. 17]. Trinity’s Motion also included alternative arguments for dismissal pursuant to the doctrine of Forum Non Coveniens and Federal Rule of Civil Procedure 12(b)(4) (challenging service of process). Id.

In support of its Motion to Dismiss for lack of personal jurisdiction and on grounds of Forum Non Coveniens, Trinity alleges, among other things that: 1) it has not engaged in any activity (substantial, non-isolated or otherwise) within Florida; 2) it does not maintain an office in Florida, does not target business in Florida; 3) does not maintain a business agent in Florida; 4) does not maintain property in Florida; and 5) does not have a base of operations or operational contacts with Florida. See [D.E. 17, pg. 6].

Also, on July 1st, 2011, Defendants Crew Network Inc., Fraser Yachts Florida, Inc. and Fraser Yacht’s Worldwide, filed Motions to Dismiss pursuant to the doctrine of Forum Non Conveniens. [D.E. 18]. In support of its Motion to Dismiss on grounds Forum Non Coveniens, these Defendants’ incorporated Trinity’s factual assertions regarding its contacts with Florida.[2]

Defendants Motions to Dismiss for lack of personal jurisdiction and on grounds of forum non conveniens [D.E. 17 and 18] thus, contain detailed factual assertions regarding their business contacts with Florida, which Plaintiff cannot meaningfully respond to without the benefit of limited jurisdictional discovery. Put simply, Plaintiff is wholly unable to respond to these arguments, without conducting limited discovery to ascertain Defendants contacts with Florida. Plaintiff has reason to believe that jurisdictional discovery will yield information that will further aid the Plaintiff in fully responding to Defendants Motions to Dismiss. [D.E. 17 and 18].

To this point, it is well settled that issues of jurisdiction are proper for discovery. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n. 13 (1978). Plaintiff is entitled to elicit material through discovery before a claim may be dismissed for lack of jurisdiction. Eaton v. Dorchester Dev., Inc., 692 F. 2d 727, 731 (11th Cir. 1982). Furthermore, “Plaintiff is not required to rely exclusively upon a defendant’s affidavit for resolution of the jurisdictional issue where that defendant has failed to answer plaintiff’s interrogatories specifically directed to that issue. To hold otherwise would permit an advantage to a defendant who fails to comply with the rules of discovery.” Blanco v. Carigulf Lines, 632 F. 2d 656, 658 (5th Cir. 1980).[3]

Previously, in similar cases, this Honorable Court has stayed all litigation, pending completion of limited jurisdictional discovery. See Bridgewater v. Carnival Corporation, Rhapsody Tours, et. al., CASE NO. 10-22241-CIV-KING/Bandstra [D.E. 28] (Hon. Judge King), attached hereto as Exhibit “A”:

THIS CAUSE, comes before the Court on Plaintiff’s Motion to Stay Determination of Personal Jurisdiction Pending Jurisdictional Discovery (D.E. #21), as well as Motions to dismiss filed by Defendant Carnival Corporation (D.E. #14) on August 14, 2010 and Defendant Rapsody Charters & Cruises Limited (DE #17) on August 23, 2010. Defendant Rapsody Charters & Cruises Limited does not object to Plaintiff’s Motion to Stay.

After consideration of the arguments put forth by the parties and for the following reasons , the Court finds that it is in the best interests of justice to stay the above matter pending jurisdictional discovery. Accordingly, after a careful review of the record and the Court being otherwise fully advised, it is ORDERED and ADJUDGED and DECREED that:

1. Plaintiff’s Motion to Stay Determination of Personal Jurisdiction Pending Jurisdictional discovery (DE #21) is GRANTED. The parties shall complete necessary jurisdictional discovery within 90 days, at which time appropriate motions may be filed.
2. Defendants’ Motions to Dismiss (DE #14, 17) are therefore DENIED without prejudice to refilling after 90 days have passed.

Id. (Emphasis added). See also Wong v. Carnival Corporation, et. al., 11-21076-CIV-HUCK/BANDSTRA (Hon. Judge Huck) (S.D. Fla. 2011) attached hereto as Exhibit “B”:

This matter is before the Court on Plaintiff William Wong’s Unopposed Motion to Stay the Case Pending Jurisdictional Discovery [D.E. 24] … Plaintiff’s Motion Requests 120 days, so that the parties may conduct jurisdictional discovery. The Court has considered the pleadings and is duly advised on the premises. Accordingly, it is ORDERED that Plaintiff’s Unopposed Motion to Stay the Case is GRANTED. With the exception of limited jurisdictional discovery, described hereafter, the case is STAYED. For 120 days from the date of the order, the parties may engage in discovery limited to issues appropriate to a personal jurisdiction determination. The Court delays ruling in Defendant’s Motions to Dismiss [D.E. 16, 22] until the completion of the jurisdictional discovery period. Unless otherwise ordered, Plaintiff shall respond to the pending Motions to Dismiss on or by Monday October 10, 2011.

Id. See also Olson v. Carnival Corporation, et. al., 11- 21061-CIV-COOKE/TURNOFF (Hon. Judge Cooke) (S.D. Fla. 2011) attached hereto as Exhibit “C”:

THIS MATTER is before me on Plaintiff Harry Olson’s (“Olson”), as Personal Representative of the Estate of Carol Olson, Unopposed Motion to Stay the Case Pending Completion of Jurisdictional Discovery. (ECF No. 26)… On May 11, 2011, Reef Tours, Ltd., filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction. (ECF No. 14). In response, Olson argues that jurisdictional discovery may be helpful in ascertaining whether Reef Tours, Ltd. does indeed have the requisite contacts with Florida to assert jurisdiction. Having reviewed the pleadings and the relevant legal authorities, I hereby ORDER and ADJUDGE that Olson’s Unopposed Motion to Stay the Case Pending Completion of Jurisdictional Discovery (ECF No. 26), is GRANTED. This case is STAYED, with the exception of limited jurisdictional discovery. The Parties may engage in discovery limited to the issues appropriate to a personal jurisdiction determination for 120 days following the date of this Order. The Court defers ruling on Reef Tours, Ltd.’s Motion to Dismiss (ECF No. 14), until the completion of the jurisdictional period. Unless otherwise ordered, Olson shall respond to the

Like in the Bridgewater, Olson, and Wong matters above, here Plaintiff also seeks to stay the case, including ruling on all outstanding motions [D.E. 17 and D.E. 18], pending completion of jurisdictional discovery.

WHEREFORE, Plaintiff, moves this Honorable Court to stay the case, including ruling on all outstanding motions, [D.E. 17 and [D.E. 18], pending completion of 200 days of limited jurisdictional discovery

LOCAL RULE 7.1A (3) CERTIFICATE OF GOOD FAITH

The undersigned counsel certifies that he has conferred with defendants (represented by the same counsel) concerning the aforementioned relief during the parties Rule 26(f) conference. Defendants oppose Plaintiff’s relief.

 


[1] Currently pending before this Honorable Court are Defendant Trinity Overseas Services Limited Motions to Dismiss pursuant to Rule 12(b)(2), the doctrine of forum non conveniens, and Rule 12(b)(4) [D.E. 17]. Additionally, pending before this Honorable Court is Defendants Crew Network Inc., Fraser Yatchts Florida, Inc. and Fraser Yacht’s Worldwide, Motions to dismiss pursuant to Federal Rule 12(b)(6) and the doctrine of forum non conveniens. [D.E. 18].

[2] The Defendants Motion, also included an alternative argument for dismissal pursuant to Rule 12(b)(6).[D.E. 18]

[3] It is well accepted that a right to jurisdictional discovery exists. See, e.g., Eaton v. Dorchester Dev., Inc., 692 F. 2d 727, 729–31 (11th Cir. 1982). Under Federal Rule 26(b)(1), “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense . . . .” Discovery is not limited to the merits of a case, as it is available to ascertain the facts bearing on issues such as jurisdiction or venue. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13 (1978). Thus,“‘[a] plaintiff faced with a motion to dismiss for lack of personal jurisdiction is entitled to reasonable discovery, lest the defendant defeat the jurisdiction of a federal court by withholding information on its contacts with the forum.’” Diamond Chem. Co. v. Atofina Chems., Inc., 268 F. Supp. 2d 1, 15 (D.C. Cir. 2003) (quoting El-Fadl v. Cent. Bank ofJordan, 75 F. 3d 668, 676 (D.C. Cir. 1996)) (emphasis added).