Associated Transport v. Productos , 197 F.3d 1070 ( 1999 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
12/08/99
No. 98-3765
THOMAS K. KAHN
CLERK
D. C. Docket No. 95-01732-CIV-T-25E
ASSOCIATED TRANSPORT LINE, INC.,
COMMERCIAL UNION ASSURANCE COMPANY,
PLC, on behalf of certain underwriters Institute of
London Underwriters,
Plaintiffs-Appellants,
versus
PRODUCTOS FITOSANITARIOS PROFICOL EL
CARMEN, S.A.,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Florida
(December 8, 1999)
Before BLACK and WILSON, Circuit Judges, and HILL, Senior Circuit Judge.
HILL, Senior Circuit Judge:
Associated Transport Line, Inc. and Commercial Union Assurance Company
appeal the district court’s dismissal of their complaint for lack of personal jurisdiction
over Productos Fitosanitarios Proficol El Carmen, S.A. For the following reasons, we
affirm the dismissal.
I.
Productos Fitosanitarios Proficol El Carmen, S.A. (Proficol), a Colombian
herbicide manufacturer, contracted with Associated Transport Line, Inc. (Transport)
to ship its herbicide from Colombia to a buyer in Trinidad. The shipping documents
were prepared and signed in Colombia and showed that Transport would make stops
in Texas and Florida before taking the herbicide to the West Indies. Transport alleges
that the documents did not identify the chemical content of the herbicide.
During the trip, the herbicide leaked onto the deck of the ship while it was in
Florida waters. The United States Coast Guard required Transport to clean up the spill.
Transport’s agents in Colombia telephoned Proficol in Bogata, Colombia to get the
chemical name of the herbicide so that Transport would know how to collect and
dispose of it. Transport alleges that Proficol misidentified the herbicide as a dangerous
environmental pollutant, when, in fact, the chemical composition of the herbicide was
far less harmful. Relying on this alleged misinformation, Transport engaged in a clean-
up process that cost $673,177. Transport alleges that, if the chemical had been
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correctly identified, the clean up and disposal of the spill would have cost
approximately $15,000.
Transport subsequently brought this action against Proficol under the
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA),
42 U.S.C. § 9601, and under general maritime law. Transport seeks to recover from
Proficol the excess $657,177 it expended to clean up the herbicide due to Proficol’s
allegedly negligent misidentification of the herbicide.
Transport claims that the district court may exert personal jurisdiction over
Proficol under the tort prong of Florida’s long-arm statute, Fla. Stat. ch. 48.193(1)(b),
and Rule 4(k)(2), Fed. R. Civ. P., the national long-arm statute. Proficol contends that
neither statute applies because there was no “tort” in Florida and it has insufficient
contacts with either Florida or the United States to justify the exercise of jurisdiction
over it by a Florida federal court.
The district court agreed with Proficol that jurisdiction is lacking under any
statute and dismissed Transport’s complaint. Transport brings this appeal which we
review de novo. See Lockard v. Equifax, Inc., 163 F.3d 1259, 1265 (11th Cir. 1998).
II.
In order to assert jurisdiction over Proficol under Section 48.193(1)(b) of
Florida’s long-arm statute, Transport must show that Proficol committed a tort in
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Florida. Int’l Harvester Co. v. Mann, 460 So. 2d 580 (Fla. 1st DCA 1989). Transport
attempts to meet this requirement by arguing that Proficol “caused a clean-up to occur
in Florida by not properly identifying the chemical properties of its product as required
under federal admiralty law and CERCLA.” Proficol’s conduct, according to
Transport, constituted a CERCLA violation. Transport relies on Chatham Steel Corp.
v. Brown, 858 F. Supp. 1130 (N.D. Fla. 1994), for its conclusion that a tort based on
CERCLA violations is located where the environmental hazard occurs.
In Chatham Steel, a South Carolina company sold spent batteries to a company
which recycled batteries at a 53-acre site in Florida. Id. at 1144. During the recycling,
acid from the batteries spilled on the ground and flowed uncontrolled across the site.
Additionally, the company dumped the cut battery casings – contaminated with lead
– in the northern portion of the site. Id. at 1135. Later, several companies charged
with cleaning up the contaminated site sought recovery under CERCLA from the
various suppliers of the batteries, including the South Carolina company. Id. at 1135.
The South Carolina company claimed that it did not know where the batteries
were recycled or even that the batteries were cut open to recycle their lead content. Id.
at 1145. Aside from its dealings with the recycler, the company had no other contacts
with the state of Florida. Id.4
Plaintiffs sought to assert personal jurisdiction over the South Carolina company
under Florida’s long-arm statute, contending that the company had committed a
“tortious act” in Florida thereby triggering jurisdiction under Fla. Stat. ch.
48.193(1)(b). Id. The district court agreed, holding that a CERCLA violation is a
“tortious act” within the meaning of the Florida long-arm statute. Id. at 1146. The
court reasoned that, by selling batteries to the recycler, the South Carolina company
had “helped create the serious environmental hazard” in violation of federal law, a tort
within the meaning of Section 48.193(1)(b). Id. at 1146. Therefore, the South
Carolina defendant could be haled into a Florida court to answer for the damage.
Transport argues that, because Proficol “caused a clean-up to occur in Florida”
it too “violated federal law in Florida and caused damage in Florida as a result of those
violations.” Consequently, according to Transport, Proficol committed a tort in Florida
under the Chatham Steel rule, thereby requiring it to answer the allegations against it
in a federal court in Florida.
This analysis might be correct if Transport were suing Proficol for negligently
causing the spill and the cost of the cleanup, but it is not. Transport does not allege
that Proficol was in any way responsible for the spill. What Transport seeks to recover
is not the $15,000 that was required to clean up the spill, but the extra $657,177 that
it spent because it believed the spill contained a far more hazardous chemical than it
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actually did. Therefore, the wrong which Transport alleges Proficol committed was
not the spill of a hazardous substance which Transport was required to clean up, but
rather the communication of misinformation which caused Transport to pay more for
that clean up than it needed to.
Once this is clear, it is apparent that Chatham Steel is inapplicable. In that case,
the South Carolina company’s sale of its batteries to the Florida recycler was an
“arrangement” for disposal of a hazardous substance. In disposing of its spent
batteries, the South Carolina company was essentially “traffick[ing] in a hazardous
substance,” as defined by CERCLA, and any improper release of the hazardous
substance is a CERCLA violation subjecting the trafficker to strict liability. For such
a violation of federal law, the non-resident trafficker may be haled into federal court
in the state where the violation occurred.
Similarly, in this case, the CERCLA violation, if any,1 was the release of a
hazardous substance into the Florida environment. The damage done by this violation
was the $15,000 required to clean up the spill. But there is no allegation in this
complaint that Proficol caused the spill, nor any claim for the $15,000 clean up cost.
What Transport alleges as the negligence and damage is the misidentification of
the chemical composition of the herbicide and the unnecessary excess money spent to
1
We do not reach the issue of whether Proficol violated CERCLA in any way.
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clean up the spill. This additional money spent to clean up the spill, however, was not
proximately caused by the spill itself. The excess money was spent because Transport
was under the impression that the spill contained a chemical requiring far more
extensive decontamination procedures than were, in fact, actually necessary. It
believed this because, according to it, Proficol told it so.
If Proficol is liable to Transport, then, it is because it had a duty to Transport to
communicate accurately the chemical composition of the herbicide which it breached.
Where was this duty breached? The answer has to be in Colombia where the telephone
conversation took place in which a representative from Proficol told a representative
from Transport the name of the chemical. Therefore, the Chatham Steel analysis2 does
not apply because the wrong alleged – the tort – was not committed in Florida, but in
Colombia.3
The real issue in this case is not whether Proficol is liable for the underlying
CERCLA violation – the spill – but whether it is liable for the excess spent to clean up
the spill. This is the basis of Transport’s claim and the alleged tort for which it seeks
2
Of course, we would not be bound by the district court’s analysis even if we determined it
were applicable to our facts. Because it is not, we do not consider whether to adopt it, although we
recognize its well-reasoned persuasiveness.
3
Transport seems to recognize this fact in its Reply Brief which argues that “even though
Defendant/Appellee’s negligent conduct originated in Columbia (sic), the injury occurred in the U.S.
(Florida).”
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to recover, and it did not occur in Florida. Although injury in Florida may have
resulted from Proficol’s alleged negligence, the Florida courts have made very clear
that “the occurrence of the injury alone in the forum state does not satisfy the statutory
test.” Jack Pickard Dodge, Inc. v. Yarbrough, 352 So.2d 130, 134 (1st DCA 1977).
See also Oriental Imports and Exports, Inc. v. Maduro & Curiel’s Bank. N.V., 701 F.2d
889, 893 (11th Cir. 1983).4
II.
Transport also contends that this court has personal jurisdiction over Proficol
under Rule 4(k)2, Fed. R. Civ. P. This rule provides:
If the exercise of jurisdiction is consistent with the Constitution and law
of the United States, serving a summons or filing a waiver of service is
also effective, with respect to 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.
This rule permits the exercise of personal jurisdiction over foreign defendants
for claims arising under federal law when the defendant has sufficient contacts with the
nation as a whole, but is without sufficient contacts to satisfy the long-arm statute of
4
Furthermore, it is not at all clear to us that any injury did occur in Florida. The injury
alleged is not the underlying chemical spill which did occur in Florida waters, or the $15,000 which
Transport paid for its containment. Rather, the injury is the excess money it spent in reliance on
Proficol’s alleged misidentification of the chemical involved. Proficol claims that this money was
expended from Transport’s corporate headquarters and bank accounts in Texas, not Florida. Thus,
even if a Florida injury could trigger the Florida long-arm statute, the facts of this case might not
be sufficient to establish such an injury.
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any particular state. United States S.E.C. v. Carrillo, 115 F.3d 1540, 1443-44 (11th
Cir. 1997). Since Proficol is not subject to Florida’s long-arm statute and Transport
concedes that Proficol is not subject to the jurisdiction of the courts of any other state,
Rule (k)(2) can provide the necessary vehicle for this court’s exercise of jurisdiction
over it if the requirements of due process are met. Panama v. BCCI Holdings
(Luxembourg) S.A. 119 F.3d 935, 942 (11th Cir. 1997). In order to be subject to the
jurisdiction of this court under Rule 4(k)(2), Proficol’s contacts with the nation as a
whole must be (1) either related to the plaintiff’s cause of action or have given rise to
it; (2) involve some act by which the defendant has purposefully availed itself of the
privilege of conducting activities within the forum; and (3) must be such that it should
reasonably have anticipated being haled into court there. Id. See also International
Shoe Co. v. Washington, 326 U.S 310, 316 (1945).
Proficol’s contacts with the United States, aside from the shipment of the
herbicide at issue in this case, occurred from 1993 to 1996.5 During this time, Proficol
exported its products to the United States on nine occasions, and purchased goods
from the United States on 193 occasions. The issue is whether these contacts permit
the United States to exercise personal jurisdiction over it under Rule 4(k)(2).
5
These are Transport’s allegations, which, for the purposes of the motion to dismiss, we
assume to be true.
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First, it is clear that jurisdiction cannot be predicated solely upon the contact
giving rise to Transport’s claim – the passing through Florida waters of a shipment of
the herbicide to Trinidad, especially when the related tort did not occur in the forum.
Proficol’s alleged single misidentification of the chemical content of a herbicide which
passed through Florida waters en route to Trinidad is insufficient to support
jurisdiction under Rule 4(k)(2). See Asahi Metal Indus. Co., Ltd. v. Superior Ct. of
Cal., 480 U.S. 102, 112-113 (1987) (awareness that product will enter state is not
enough to satisfy due process – not the kind of purposeful activity required by
Constitution); Francosteel Corp. v. M/V Charm, 19 F.3d 624, 628 (11th Cir. 1994)
(same); Madara v. Hall, 916 F.2d 1510, 1518 (11th Cir. 1990) (single interview that
had impact in forum not enough); Charlie Foer Evangelistic Ass’n, Inc. v. Cessna
Aircraft Co., 911 F.2d 1564, 1565-67 (11th Cir. 1990) (fact that nonresident knew
repair work would have impact in forum not sufficient); Sea Lift Inc. v. Refinadora
Costarricense de Petroleo, S.A., 792 F.2d 989, 993 (11th Cir. 1986) (mere “foot-fall”
in forum not enough for due process).
A party’s contacts with the forum that are unrelated to the litigation must be
pervasive in order to support the exercise of personal jurisdiction under Rule 4(k)(2).
Madara, 916 F.2d at 1516. Proficol’s non-related contacts with this forum – the
purchases and sales – do not meet this test. First, a party’s purchases in the United
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States are never enough to justify jurisdiction. Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408 (1984). In a case where the defendant purchased
approximately 80% of its helicopter fleet, spare parts, and accessories from an
American helicopter company, the Supreme Court held that “mere purchases, even if
occurring at regular intervals, are not enough to warrant . . . jurisdiction over a
nonresident corporation in a cause of action not related to those purchase transactions.”
Id. at 411. See also Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 518
(1923) (“Visits on such business [purchasing activity], even if occurring at regular
intervals, would not warrant the inference that the corporation was present within the
jurisdiction of the state.”); Dalton v. R & W Marine, Inc., 897 F.2d 1359, 1362 n.3 (5th
Cir. 1990) (purchases, even if they occur regularly, will not justify general
jurisdiction); Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1330-31 (9th Cir. 1984)
(visits to forum to purchase not sufficient).
Neither are Proficol’s nine sales to the United States during a four-year period
constitutionally sufficient to support general jurisdiction. See Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 772 (1984) (sale of 15, 000 magazines each month not
sufficient for general jurisdiction); Bearry v. Beech Aircraft Corp., 818 F.2d 370, 372-
73 (5th Cir. 1987) (purchases of nearly $195 million plus sales of $250 million not
sufficient for general jurisdiction); Nichols v. G.D. Searle Co., 991 F.2d 1195, 1198
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(4th Cir. 1993) (purchases combined with $13 million in sales not enough); Dalton,
897 F.2d at 1362 & n.3 (purchases combined with sales yielding 12.9% of total income
not sufficient). General jurisdiction has been found lacking even where a company had
employees, agencies and salespeople regularly in the forum; where the company was
qualified to do business in the forum; and where it regularly solicited business and
derived more than 26% of its income from the forum. Noonan v. Winston Co., 135
F.3d 85, 93-94 (1st Cir. 1998); Nichols, 991 F.2d at 1198 ($13 million in sales over
five-year period insufficient – even though company employed salespeople in forum).
Clearly, Proficol’s nine sales over four years is insufficient by these yardsticks.
Due process of law requires that Proficol have sufficient contacts with the
United States to justify the exercise of personal jurisdiction over it. Neither its sales
nor its purchases are sufficient to subject Proficol to the jurisdiction of this court under
Rule 4(k)(2).
III.
Jurisdiction predicated upon Section 48.193(b)(1) is not warranted in this case
because the defendant has not committed a tort within the state of Florida. Jurisdiction
under Rule 4(k)(2), Fed. R. Civ. P. is not warranted because the defendant has
insufficient contacts with the United States to support such jurisdiction. Accordingly,
the judgment of the district court is AFFIRMED.
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