Take the Fifth

Designated for publication

• Douglas v. Nippon Yusen Kabushiki Kaisha, 20-30379, appeal from E.D. La.
  • per curiam (King, Elrod, Willett), Elrod, J., specially concurring, joined by WIllett, J.; personal jurisdiction
  • Affirming dismissal of two lawsuits against Japanese company that chartered boat that collided with U.S. Navy vessel in Japanese territorial waters, killing seven sailors and injuring forty others, for lack of personal jurisdiction.
  • Where the plaintiffs sought to invoke the federal court’s personal jurisdiction over the NYK Line under Federal Rule of Civil Procedure 4(k)(2), “everyone agrees that any exercise of personal jurisdiction over NYK Line must comport with the Fifth Amendment’s due process requirements.” The defendant argued that the Fifth Amendment analysis should be constrained by Fourteenth Amendment Due Process analysis. The plaintiffs argued instead that the Fourteenth Amendment analysis was distinct and should not be part of the personal jurisdiction framework under Rule 4(k)(2), and that instead the court should look to the national-contacts analysis under International Shoe, where “the inquiry is whether a foreign (i.e. non-U.S.) defendant, sued on a federal claim and not amenable to suit in any state court, was doing systematic and continuous business in the United States, and whether the claim at bar was related to that business.”
  • The Court noted that the Fourteenth Amendment’s due process analysis, because it was focused on the sovereign of the state rather than of the United States, was bound by concerns of federalism. “But federalism concerns are not present in the Fifth Amendment context. The Supreme Court plurality in J. McIntyre Machinery v. Nicastro, 564 U.S. at 873, explicitly endorsed the possibility of a different personal jurisdiction analysis for federal courts.” The Court then held that the fairness analysis attendant to the Fourteenth Amendment should be different for personal jurisdiction over foreign defendants under the Fifth Amendment: “[T]his concern highlights an important reason to differentiate between the interpretation of the two clauses: the limited constitutional rights of foreign defendants. After all, constitutional protections for non-U.S. parties in U.S. courts differ from those afforded to U.S. citizens.”
  • Nevertheless, the panel, while persuaded by the plaintiffs’ argument that the test should be distinct from the Fourteenth Amendment analysis, held that it was constrained by the rule of orderliness to follow a prior 5th Circuit panel opinion that imported Fourteenth Amendment analysis into the Fifth Amendment personal jurisdiction framework. “However persuasive we might find plaintiffs-appellants’ position persuasive, in deciding whether modern Fourteenth Amendment caselaw controls, we confront another panel’s opinion, Patterson v. Aker Solutions, Inc., where the Fifth Circuit for the first and only time applied Daimler to resolve whether personal jurisdiction could be established under Fed. R. Civ. P. 4(k)(2). 826 F.3d at 234.” The Court held that Patterson did rely on Fourteenth Amendment analysis, was squarely on point with this case on NYK Line, and that the reliance on Fourteenth Analysis was not obiter dicta.
  • Applying the analysis from the Supreme Court’s Fourteenth Amendment framework in Daimler, the Court held that the district court did not err in finding no personal jurisdiction in this case: “Using Daimler’s lodestar for the ‘exceptional case’—as did the court in Patterson—the district court correctly concluded that ‘NYK Line’s contacts with the United States are not so continuous and systematic as to render [these facts] … exceptional.’ Unlike in Perkins, the United States could hardly be considered ‘the center of [NYK Line’s] activities’ or a ‘surrogate for [NYK Line’s] place of incorporation or head office.’ Daimler, 571 U.S. at 130 n.8. As the district court aptly recognized ‘[a]ll of NYK Line’s high-level decision making takes place in Japan, and port calls made to the United States represent just six to eight percent of all port calls made by NYK Line worldwide. [Further,] NYK Line’s American employees represent less than 1.5 percent of all employees.’ Ultimately, NYK Line’s contacts with the United States represent a small portion of its contacts worldwide. To be sure, NYK Line has considerable contacts with the United States. But these are not ‘so substantial and of such a nature’ that NYK Line is essentially rendered at home in the United States.”
  • Judge Elrod specially concurred, agreeing wholly with the majority opinion’s analysis of the Fifth Amendment/Fourteenth Amendment distinction that ought to have been drawn in the Rule 4(k)(2) analysis, and with the majority’s conclusion that it was nevertheless bound under the rule or orderliness to follow Patterson, but to urge the en banc Fifth Circuit to take the issue up and correct what she sees as the mistake made in Patterson.

Unpublished

• U.S. v. Presley, 19-20543, appeal from S.D. Tex.
  • per curiam (Dennis, Costa, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Raven, 19-40522, appeal from S.D. Tex.
  • per curiam (Haynes, Graves, Willett), criminal, First Step Act
  • Remanding to the district court to clarify whether it ruled on the First Step Act issue raised by the defendant’s motion for a sentence reduction.

• Anyanwu v. Louisiana, 20-30550, appeal from M.D. La.
  • per curiam (Haynes, Graves, Willett), employment discrimination
  • Affirming dismissal of plaintiff’s employment discrimination claim against the Louisiana Department of Health.

• Kolwe v. Civil & Structural Engineers, Inc., 20-30564, appeal from W.D. La.
  • per curiam (Owen, Clement, Higginson), removal
  • Dismissing appeal from remand order for lack of appellate jurisdiction.

• San Antonio Bay Estuarine Waterkeeper v. Formosa Plastics Corp. Texas, 20-40575, appeal from S.D. Tex.
  • per curiam (King, Smith, Haynes), environmental law, Clean Water Act
  • Reversing the district court’s judgment that Clean Water Act consent decree provisions were triggered by the presence of any plastics from defendant in bay estuary, regardless of when discharged, as opposed to a trigger only by post-Consent Decree discharges, and remanding for further proceedings.

• Laufer v. Galtesvar OM, LLC, 20-51018, appeal from W.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), Americans with Disabilities Act, standing
  • Affirming district court’s dismissal of “tester” plaintiff’s ADA claims for lack of standing.

• Budri v. Administrative Review Board, Dept. of Labor, 20-60574, petition for review of DOL Administrative Review Board decision
  • per curiam (Higginbotham, Southwick, Engelhardt), OSHA, employment
  • Denying petition for review of DOL ARB’s decision denying appeal of petitioner’s OSHA claims, his fourth set of claims arising from the same operative facts, and entering order prohibiting petition from filing any future claims arising from same operative facts.

• U.S. v. Keys, 20-61192, appeal from S.D. Miss.
  • per curiam (Davis, Stewart, Dennis), criminal, First Step Act
  • Affirming denial of sentence reduction under the First Step Act.