Douglass v. Nippon Yusen Kabushiki Kaisha ( 2021 )

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 30, 2021
No. 20-30382 Lyle W. Cayce
Clerk
Stephen Douglass, individually and as personal representative of the
Estate of Shingo Alexander Douglass; Dora
Hernandez, individually and as personal representative of the Estate
of Noe Hernandez; Lan Huynh, individually and as personal
representative of the Estate of Ngoc Truong Huynh; Darrold
Martin, individually and as personal representative of the Estate of
Xavier Alec Martin; Erin Rehm, individually and as personal
representative of the Estate of Gary Leo Rehm, Jr.; Lloyd
Wayne Rigsby, Jr., individually and as personal representative of the
Estate of Dakota Kyle Rigsby; Carmen Sibayan,
individually and as personal representative of the Estate of Carlos
Victor Ganzon Sibayan,
Plaintiffs—Appellants,
versus
Nippon Yusen Kabushiki Kaisha,
Defendant—Appellee,
consolidated with
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Jhon Alcide; Richard Allen-Easmon; Dustin Angle;
Jesus Arguello; Valerie Arguello, Et al.,
Plaintiffs—Appellants,
versus
Nippon Yusen Kabushiki Kaisha,
Defendant—Appellee.
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC Nos. 2:19-CV-13688 & 2:19-CV-13691
Before King, Elrod, and Willett, Circuit Judges.
Per Curiam:
Nippon Yusen Kabushiki Kaisha chartered a ship that collided with a
U.S. Navy destroyer in Japanese territorial waters. The collision killed seven
sailors, injured at least forty others, and prompted the two lawsuits
consolidated before us on appeal. The district court dismissed the cases,
concluding that personal jurisdiction, under Fed. R. Civ. P. 4(k)(2), over
Nippon Yusen Kabushiki Kaisha could not be established. For the reasons
that follow, we AFFIRM.
I.
Defendant-appellee Nippon Yusen Kabushiki Kaisha (“NYK Line”)
was involved in the operation and navigation of its chartered ship that
collided with the U.S.S. Fitzgerald, a U.S. Navy destroyer, in the territorial
waters of Japan. The collision killed seven sailors and injured at least forty
others. After the incident, two sets of plaintiffs filed suit against NYK Line
in the U.S. District Court for the Eastern District of Louisiana. The Douglass
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plaintiffs are personal representatives of the seven U.S. sailors killed. They
filed wrongful death and survival claims under the Death on the High Seas
Act, 46 U.S.C. §§ 30301-08. The many U.S. sailors who were injured in the
collision, along with seventeen family members with consortium claims, sued
separately as the Alcide plaintiffs. The plaintiffs-appellants in both cases
asserted personal jurisdiction over NYK Line pursuant to Fed. R. Civ. P.
4(k)(2), alleging that, despite NYK Line’s status as a foreign corporation, its
substantial, systematic, and continuous contacts with the United States
should make NYK Line amenable to suit in federal court.
NYK Line moved to dismiss for lack of personal jurisdiction under
Fed. R. Civ. P. 12 (b)(2). The district court granted NYK Line’s motions
and entered identical judgments in both cases accordingly. The plaintiffs-
appellants timely appealed, and those appeals were subsequently
consolidated before us. We are asked to address whether the district court
could constitutionally exercise personal jurisdiction over NYK Line. Because
we are bound by the rule of orderliness, existing Fifth Circuit precedent
leaves us with only one proper outcome, and we affirm.
II.
Our review of a district court’s Rule 12(b)(2) dismissal for lack of
personal jurisdiction is de novo, and we apply the same standards as the
district court. Patterson v. Aker Sols., Inc., 826 F.3d 231, 233 (5th Cir. 2016)
(citing Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002)).
III.
A. Personal Jurisdiction and Fifth Amendment Due Process
In deciding whether an exercise of personal jurisdiction over NYK
Line is constitutional, we run up against two threshold questions. First, we
have to establish which constitutional test governs our analysis. And, second,
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once we have discerned which test governs, we must then decide how that
test is applied. We begin by establishing that the Fifth Amendment’s due
process inquiry controls our analysis here. No one disputes as much. But
some background will be helpful to understanding the answer to the second
question—the crux of this dispute. That is, how the Fifth Amendment due
process test is applied in the personal jurisdiction context, and whether—and
to what extent—Fourteenth Amendment due process caselaw in that same
context constrains a Fifth Amendment due process analysis.
1. Discerning the Relevant Constitutional Test
As with any personal jurisdiction analysis in federal court, we begin
with Rule 4(k) of the Federal Rules of Civil Procedure. Synthes (U.S.A.) v.
G.M. Dos Reis Jr. Ind. Com de Equip. Medico, 563 F.3d 1285, 1293 (Fed. Cir.
2009) (“Rule 4 is the starting point for any personal jurisdictional analysis in
federal court.”). This is so, because, usually, whether a “defendant is
amenable to service” is a “prerequisite” to a court’s exercise of personal
jurisdiction. See Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104-
05 (1987) (“Before a federal court may exercise personal jurisdiction over a
defendant, the procedural requirement of service of summons must be
satisfied.”). Here, NYK Line is a foreign defendant and not subject to
jurisdiction in any state’s courts of general jurisdiction, and the claims
asserted against it arise under federal law. As a consequence, everyone agrees
that NYK Line may be properly served, and hence personal jurisdiction can
be established, only pursuant to Rule 4(k)(2). See generally Fed. R. Civ. P.
4(k)(2).
Rule 4(k)(2) was drafted in response to the Supreme Court’s decision
in Omni Capital International v Rudolf Wolff & Co., 484 U.S. at 104. In Omni,
the Supreme Court affirmed the Fifth Circuit’s en banc ruling, concluding
that a district court lacked personal jurisdiction over the defendants where
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the case arose under federal law, the federal law at issue was silent as to
service of process, and the long-arm statute of the state in which the district
court sat did not reach the defendants. Id. at 100-01, 108.
In doing so, the Court recognized that its holding would result in a
peculiar hiatus in the rules. Id. at 111. Although, under the Federal Rules of
Civil Procedure as they then existed, it was proper to look to the state long-
arm statute to determine whether service of process was authorized, this left
private litigants unable to bring an action under federal law against a foreign
defendant outside of the reach of the state long-arm statute. Id. Nevertheless,
the Court reasoned that it was not its place to fashion a “narrowly tailored
service of process provision, authorizing service on an alien in a federal-
question case when the alien is not amenable to service under the applicable
state long-arm statute.” Id. Rather, the Court called for amending the
Federal Rules to include such a provision to fill in this gap. Id. at 103.
The Omni decision spawned Rule 4(k)(2). Rule 4(k)(2) provides that,
if the case is one “aris[ing] under federal law,” federal courts have personal
jurisdiction to the constitutional limit provided that no state could exercise
jurisdiction. See Fed. R. Civ. P. 4(k)(2). An exercise of personal
jurisdiction is “consistent with the United States Constitution,” id, if it
comports with due process, see Omni, 484 U.S. at 104. There are two due
process clauses in the United States Constitution. One is part of the
Fourteenth Amendment, and it is aimed at regulating the conduct of the
several states. See U.S. CONST. amend. XIV, § 1. Another is part of the
Fifth Amendment, and it constrains federal authority. See U.S. CONST.
amend. V. As Rule 4(k)(2) is directed at federal courts and contemplates a
defendant’s contacts with the entire United States, as opposed to the state in
which the district court sits, the constitutional limits contemplated by the
rule flow from the Fifth Amendment’s Due Process Clause. See Fed. R.
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Civ. P. 4(k)(2) advisory committee’s note to 1993 amendment (explaining
that the Fifth Amendment, the basis of jurisdiction under Rule 4(k)(2),
“requires that any defendant have affiliating contacts with the United States
sufficient to justify the exercise of personal jurisdiction over that party”).
The plaintiffs-appellants asserted personal jurisdiction over NYK
Line pursuant to Fed. R. Civ. P. 4(k)(2), and therefore, everyone agrees
that any exercise of personal jurisdiction over NYK Line must comport with
the Fifth Amendment’s due process requirements.
2. Fifth Amendment Due Process and Existing Caselaw
This brings us to the core of this dispute. Having established that
personal jurisdiction is only proper in this case if the Fifth Amendment due
process test is satisfied, we must now decide how this test is applied. And, on
this point, the parties disagree.
NYK Line argues that Fourteenth Amendment due process caselaw
in this context constrains a Fifth Amendment due process analysis and that
the jurisdictional test set forth in Daimler AG v. Bauman, 571 U.S. 117 (2014),
is our guide. Plaintiffs-appellants, supported by distinguished amici, 1 argue
to the contrary. Because we find plaintiffs-appellants’ position persuasive,
we explain their position in full here. Ultimately, however, as we explain
below, we are bound by the rule of orderliness to resolve this case under
Daimler.
The upshot of the plaintiffs-appellants’ argument is this: The
requirements of Fourteenth Amendment due process differ from those of the
Fifth Amendment. Therefore, in deciding whether a court’s exercise of
1
Professors Helen Hershkoff, Arthur R. Miller, Alan B. Morrison, John E. Sexton,
and Adam N. Steinman filed an Amicus Curiae brief in this case.
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personal jurisdiction over a defendant comports with the Fifth Amendment’s
Due Process Clause, we ought not to turn to recent Supreme Court cases
interpreting the Fourteenth Amendment specifically. Rather, we should look
to a defendant’s national contacts and follow the basic dictates of
International Shoe Co., v. Washington, 326 U.S. 310, 319 (1945). 2 Under the
proposed “national jurisdiction” test, 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. This is why.
Save for the relevant sovereign, the Fifth and Fourteenth
Amendments to the U.S. Constitution contain identically worded due
process clauses. It stands to reason that if the Fourteenth Amendment’s Due
Process Clause requires consideration of minimum contacts and fairness
concerns in the context of personal jurisdiction, see Int’l Shoe, 326 U.S. at
316, 319, so too does the Fifth Amendment’s. This gets us to the question,
then, of how these two factors translate from the Fourteenth Amendment’s
Due Process Clause to its Fifth Amendment counterpart.
The Supreme Court has opined and elaborated on the Fourteenth
Amendment’s due process requirements and not on the Fifth’s. See J.
McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 885 (2011) (plurality opinion);
2
At first blush, it seems incongruous to apply International Shoe and not Daimler.
After all, International Shoe is, too, a Fourteenth Amendment case. See 326 U.S. at 313. But
the line drawn at International Shoe and its early progeny is not arbitrary. Presumably, the
drafters of Rule 4(k)(2) crafted the rule against the background of jurisdictional doctrine as
it existed in 1993. That doctrine was rooted in the jurisprudence of International Shoe, under
which companies could be sued if they had “systematic and continuous” contacts with the
forum-state. 326 U.S. at 320. The plaintiffs-appellants are not asking that none of the
Supreme Court’s existing decisions help guide the analysis. They only ask that the modern
access-restrictive trend of more recent decisions, see Patterson, 826 F.3d at 234 n.5, be read
to apply solely to state courts.
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see also Bristol-Myers Squibb Co. v. Superior Court of Cal., S.F. Cnty., 137 S. Ct.
1773, 1784 (2017) (leaving open the Fifth Amendment question); Omni,484
U.S. at 102 n.5 (stating that the court has no occasion to address the Fifth
Amendment’s applicability to personal jurisdiction through national
contacts); Asahi Metal Indus. Co. v. Superior Court of Cal., Solano Cnty., 480
U.S. 102, 113 n.* (1987) (same).
While the Fourteenth Amendment measures contacts with the state,
the Fifth Amendment considers contacts with the entire United States. See
Fed. R. Civ. P. 4(k)(2) advisory committee’s note to 1993 amendment.
To the extent that the Fourteenth Amendment’s Due Process Clause ties the
definition of the minimum contacts to state sovereignty, the Fifth
Amendment’s clause should consider the sovereignty of the United States.
The Supreme Court made clear that state-sovereignty (i.e. federalism)
concerns were central to its interpretation of the Fourteenth Amendment’s
Due Process Clause. For instance, in Bristol-Myers Squibb v. Superior Court,
the majority opinion noted that the Fourteenth Amendment’s Due Process
Clause “acting as an instrument of interstate federalism,” restrains a state
from exercising jurisdiction in certain cases. 137 S. Ct. at 1788 (quoting
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294 (1980)); id.(Sotomayor, J., dissenting) (“The majority’s animating concern, in the end,
appears to be federalism[.]”). The same state-sovereignty concerns were
discussed in Daimler. In fact, the separate opinion in Daimler criticized the
majority for “unduly curtail[ing] the States’ sovereign authority to
adjudicate disputes.” Daimler, 571 U.S. at 157 (Sotomayor, J., concurring in
the judgment).
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But federalism concerns are not present in the Fifth Amendment
context. 3 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. Recognizing the implications of its
sovereignty-based approach, the plurality wrote: “Because the United States
is a distinct sovereign, a defendant may in principle be subject to the
jurisdiction of the courts of the United States, but not of any particular
State.” Nicastro, 564 U.S. at 884.
The plaintiffs-appellants’ proposed test, then, taking Nicastro at its
word, shifts the focus away from federalism concerns and instead accounts
for any sovereignty concerns that might arise in an international context. Just
as under Bristol-Myers Squibb the way to account for state-sovereignty
considerations was to ensure that sufficient minimum contacts with the state
were tied to the incident at hand, 137 S.Ct. at 1783, the requisite minimum
contacts with the United States must be so related to the claim at issue. That
is, as amici put it, the court would ask “whether a 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 was related to that business.”
Just as fairness concerns play a role in the Fourteenth Amendment
due process analysis, fairness concerns suggest that the Fifth Amendment’s
clause should preclude foreign nonresident defendants with no ties to the
United States from being called upon to defend suits in the United States.
3
The Supreme Court must have recognized as much, for in its Fourteenth
Amendment caselaw it explicitly stated that it was not addressing the question on appeal
here. Bristol-Myers Squibb, 137 S. Ct. at 1784 (majority op.) (“[W]e leave open the question
whether the Fifth Amendment imposes the same restrictions on the exercise of personal
jurisdiction by a federal court.”) (citing Omni Capital, 484 U.S. at 102 n.5).
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And this 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. See, e.g., Dep’t of Homeland
Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1981-83 (2020); U.S. Agency for Int’l
Dev. v. Alliance for Open Society Int’l, Inc., 140 S. Ct. 2082, 2086-87 (2020). 4
Given these meaningful differences, we are persuaded that, in this
context, the bounds of Fifth Amendment due process are likely not wholly
defined by modern Fourteenth Amendment caselaw. 5
Only one of our sister circuits has thoroughly analyzed whether, in this
context, the Fourteenth Amendment and Fifth Amendment standards are
the same. See Livnat v. Palestinian Auth., 851 F.3d 45, 55 (D.C. Cir. 2017). 6
4
A “national jurisdiction” test would nevertheless employ a number of backstops
to ensure fairness to the foreign defendant. For example, International Shoe’s requirement
“that the maintenance of the suit does not offend traditional notions of fair play and
substantial justice” would remain part of the calculus. 326 U.S. at 316.
5
As plaintiffs-appellants argue, it is also true that if we assume specific and general
jurisdiction are the only two available tests for personal jurisdiction under the Fourteenth
Amendment, and that these two tests equally limit the Fifth Amendment’s due process
inquiry, Rule 4(k)(2) has a limited applicability. Under these circumstances, Rule 4(k)(2)
would be effective only in the exceptional case where (1) a defendant had minimum
contacts with a forum state that has a long-arm statute that stops short of the Constitution;
(2) the defendant’s contacts fall between the constitutional and statutory lines; and (3) no
other state is available. But, of course, our interpretation of what the Constitution requires
does not depend on that interpretation’s effect on the rule. Rather, the meaning of the rule
depends on the Constitution.
6
To be sure, however, many have assumed without deciding, or otherwise
concluded without explanation, that the two standards are the same. See GCIU-Emp. Ret.
Fund v. Coleridge Fine Arts, 808 F. App’x 655, 665 n.3 (10th Cir. 2020) (“Because no party
in the case at bar draws any distinction between the Fifth and Fourteenth Amendments
with respect to the ‘purposeful direction’ and ‘arising out of’ requirements, we assume
without deciding that these restrictions are the same under either Amendment.”);
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We find unpersuasive the D.C. Circuit’s conclusion that Fifth Amendment
due process standards must track those imposed by the Fourteenth
Amendment. In part, the D.C. Circuit relies on its finding that “the Supreme
Court [has] applied Fourteenth Amendment personal-jurisdiction standards
in Fifth Amendment cases.” Id. at 54 (relying on Argentina v. Weltover, Inc.,
504 U.S. 607 (1992)). This is not the case. 7
The D.C. Circuit was also troubled by the fact that “contacts with the
United States that would be insufficient under the Fourteenth Amendment
might justify personal jurisdiction under the Fifth.” Id. But a national
jurisdiction test would not necessarily relax the due process inquiry; rather,
it would simply shift its focus. 8 For these reasons, we find the plaintiffs-
appellants’ position to have merit.
Waldman v. Palestine Liberation Org., 835 F.3d 317, 330 (2d Cir. 2016) (quoting Chew v.
Dietrich, 143 F.3d 24, 28 n.4 (2d Cir. 1998)) (concluding that “the due process analysis [for
purposes of the court’s in personam jurisdiction] is basically the same under both the Fifth
and Fourteenth Amendments”); Schulman v. Inst. for Shipboard Educ., 624 F. App’x 1002,
1006 (11th Cir. 2015) (applying Daimler to a Rule 4(k)(2) analysis); Carrier Corp. v.
Outokumpu Oyj, 673 F.3d 430, 449 (6th Cir. 2012) (holding that the Fifth Amendment
personal jurisdiction analysis “parallels” the Fourteenth Amendment analysis); cf. Abelesz
v. OTP Bank, 692 F.3d 638, 660 (7th Cir. 2012) (finding “no merit” in the argument that
invoking the Fifth Amendment “relaxes the minimum-contacts inquiry”).
7
See Argentina, 504 U.S. at 620 n.2. (noting explicitly that the personal jurisdiction
question was before the Court only “as an aid in interpreting the direct effect requirement
of the [Foreign Sovereign Immunities Act]” and that “[w]hether there is a constitutional
basis for personal jurisdiction over [Argentina] [was] not before the Court as an
independent question”).
8
Just because there are two different tests does not mean one is hard and one is
easy—it is just a matter of shifting of focus. Analogously, we see this in the general versus
specific jurisdiction inquiry in the Fourteenth Amendment due process caselaw. For
example, establishing specific jurisdiction under the Fourteenth Amendment is not
necessarily easier than establishing general jurisdiction, even though the same contacts that
suffice to establish specific jurisdiction “would be insufficient,” Livnat, 851 F.3d at 54,
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B. Rule of Orderliness
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 question we must address, then, is
whether Patterson’s reliance on the Supreme Court’s decision in Daimler
compels us to rely on the same.
It is well-settled in this circuit that the rule of orderliness prevents one
panel of the court from overturning another panel’s decision, absent an
intervening change in the law. See Jacobs v. Nat’l Drug Intel. Ctr., 548 F.3d
375, 378 (5th Cir. 2008). Indeed, the rule of orderliness prevents a
subsequent panel from declaring precedent void even where the reviewing
panel conceives error in the examined precedent. United States v. Traxler, 764
F.3d 486, 489 (5th Cir. 2014). To the extent the parties ask us to disregard or
modify Fifth Circuit authority, we are not permitted to do so. And it is
Patterson that NYK Line argues controls this case, leaning on the rule of
orderliness to convince us of the same.
Our facts are directly on point with Patterson’s. Like in this case,
where the collision at issue took place on Japanese territorial waters, the
complained-of injury in Patterson happened abroad, on a Luxembourg-
flagged vessel off the coast of Russia. Patterson, 826 F.3d at 233. NYK Line,
the defendant in our case, has its principal place of business and is
under a general jurisdiction inquiry. These are two different tests, and the tests’ criteria are
different because they are supported by different policy considerations. See Daimler, 571
U.S. at 157 n.10 (Sotomayor, J., concurring in the judgment) (“That is because the two
forms of jurisdiction [(i.e. specific and general)] address different concerns.”).
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incorporated outside of the United States; the defendant in Patterson had
both its place of incorporation and principal place of business in Norway. Id.
at 234. In both cases, the plaintiffs alleged that personal jurisdiction over the
foreign defendant was proper under Fed. R. Civ. P. 4(k)(2) and that the
defendant’s contacts with the United States as a whole sufficed to satisfy the
Fifth Amendment’s due process requirements. Id. at 233-34.
To resolve whether personal jurisdiction could be constitutionally
established over the defendant, Patterson applied the general jurisdiction test.
See id. at 233 & n.2. 9 Patterson squarely held that “[u]sing [Perkins v. Benguet
Consol. Mining Co., 342 U.S. 437 (1952),] as the benchmark of the
‘exceptional case’ where it is appropriate to exercise general jurisdiction over
a corporation outside of its principal place of business or place of
incorporation,” the defendant’s contacts with the United States fell “well
short of effectively operating its business within the United States.” Id. at
235. To reach its holding, then, Patterson without a doubt relied on Daimler’s
general jurisdiction test, which allows for a defendant to be amenable to
personal jurisdiction in the “exceptional case” where its contacts with a
forum are so continuous and systematic as to render it essentially at home.
See Daimler, 571 U.S. at 139 n.19 (referencing Perkins, 342 U.S. at 437, as the
example of an “exceptional case”).
Of course, in resolving a case on point with Patterson, we would be free
to disregard Patterson’s refences to Daimler and Perkins if these were obiter
dicta. See Netsphere, Inc. v. Baron, 799 F.3d 327, 333 (5th Cir. 2015). But they
are not. To decide whether the defendant’s contacts were sufficient to render
it essentially at home in the United States, the Patterson court relied explicitly
9
In Patterson, whether specific jurisdiction could be properly established was not
challenged on appeal. See Patterson, 826 at 233. The same is true in this case.
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on Perkins as a benchmark and distinguished its facts therefrom. Ignoring
Patterson’s reliance on Perkins would “seriously impair[] the analytical
foundations of [Patterson’s] holding . . . .” Int’l Truck & Engine Corp. v. Bray,
372 F.3d 717, 721 (5th Cir. 2004) (quoting Gochicoa v. Johnson, 238 F.3d 278,
286 n.11 (5th Cir. 2000)). It is also clear that, throughout the Patterson
opinion, references to Daimler and its general jurisdiction test are
“explication[s] of the governing rules of law.” Id. Such statements are not to
be considered dicta under Fifth Circuit precedent and are therefore binding
on this panel. 10 This is so whether we agree with Patterson’s logic or not.
Traxler, 764 F.3d at 489.
10
We recognize that where two previous holdings or lines of precedent conflict,
the earlier opinion controls and is the binding precedent. Baron, 799 F.3d at 334 (citing Rios
v. City of Del Rio, Tex., 444 F.3d 417, 425 n.8 (5th Cir. 2006)). But arguments to the
contrary notwithstanding, Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 651-52
(5th Cir. 2004), does not control here. Patterson and Adams are not in conflict. They both
turn to national contacts to decide whether personal jurisdiction could be constitutionally
exercised. Compare Patterson, 826 F.3d at 234, with Adams, 364 F.3d at 650-51. Patterson
first applies the law Adams establishes—that Rule 4(k)(2) requires consideration of
“contacts with the United States as a whole.” Patterson, 826 F.3d at 234 (quoting Adams,
364 F.3d at 650). Like Adams, Patterson next considers whether these contacts were
“continuous and systematic.” See id.; Adams, 364 F.3d at 651-52. Then, Patterson alone
considers whether these contacts “render [the defendant] essentially at home in the United
States.” Patterson, 826 F.3d at 243 (citing Daimler, 571 U.S. at 139). Adams did not consider
Daimler’s limitations. Nor could it. As Patterson correctly indicates, Adams predates
Daimler. See id. at 237 n.7. Patterson’s application of Daimler, however, does not overturn
or undermine Adams, and there is no true conflict between the two. Any decision to
disregard Patterson on our part would amount to a finding that Patterson erroneously
interprets and relies on Daimler to add gloss to Adams’s analysis. This conclusion alone
does not allow us—a panel of this court—to declare that Patterson is not binding precedent.
See Jacobs, 548 F.3d at 378 (citing Grabowski v. Jackson Cnty. Pub. Defs. Office, 47 F.3d 1386,
1400 n.4 (5th Cir. 1995) (Smith, J., concurring in part and dissenting in part)). Deciding not
to follow Patterson would do nothing more than further erode the uniformity of the court’s
decisions on a question of exceptional importance. Compare Patterson, 826 F.3d at 234
(applying Daimler in the Rule 4(k)(2) context), with Nagravision SA v. Gotech Int’l Tech.
Ltd., 882 F.3d 494, 498 (5th Cir. 2018) (never citing to Daimler or Patterson to support the
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And so, as we must, we follow Patterson and its application of Daimler
in addressing whether the district court could constitutionally exercise
personal jurisdiction over NYK Line. Bound by these constraints, we agree
with the district court that it could not.
C. Personal Jurisdiction over NYK Line
Federal Rule of Civil Procedure 4(k)(2) provides for federal long-arm
jurisdiction when three requirements are met: (1) A plaintiff’s claims arise
under federal law; (2) The defendant is not amenable to suit in any state court
of general jurisdiction; and (3) The plaintiff can show that the exercise of
jurisdiction comports with due process. See Fed. R. Civ. P. 4(k)(2);
Patterson, 826 F.3d at 234. The third requirement under Rule 4(k)(2)—the
due process analysis—contemplates a defendant’s contacts with the entire
United States, as opposed to the state in which the district court sits. See
Fed. R. Civ. P. 4(k)(2) advisory committee’s note to 1993 amendment
(explaining that the Fifth Amendment, the basis of jurisdiction under Rule
4(k)(2), “requires that any defendant have affiliating contacts with the
United States sufficient to justify the exercise of personal jurisdiction over
that party”).
That the first two requirements of Rule 4(k)(2) are met is undisputed.
The parties agree that NYK Line is not subject to the jurisdiction of any state
court and that this case arises under federal law. 11 At issue here is only
proposition that the requirements of due process were met in a Rule 4(k)(2) analysis, noting
that this point was undisputed). A faithful observance of the rule of orderliness leaves no
occasion for us to choose to follow Adams in lieu of Patterson. See Jacobs, 548 F.3d at 378.
11
This case involves claims arising under maritime law, and courts have observed
repeatedly that maritime law is federal law and that federal law includes admiralty cases for
the purposes of Rule 4(k)(2). See World Tanker Carriers Corp. v. M/V Ya Mawlaya, 99 F.3d
717, 723 (5th Cir. 1996).
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whether an exercise of personal jurisdiction over NYK Line comports with
due process.
Under Patterson, due process requires us to ensure that NYK Line’s
contacts “with the United States . . . [are] so continuous and systematic as to
render it essentially at home.” Patterson, 826 F.3d at 234 (citing Daimler, 571
U.S. at 139). “The Supreme Court has found a sufficient basis for the
exercise of general jurisdiction over a non-resident defendant in only one
modern case—[Perkins]—and [the defendant’s] contacts with the United
States [must] come close to the level of contacts there.” Id. at 235.
NYK Line is incorporated and headquartered in Japan. Therefore, if
NYK Line is to be subject to an exercise of general personal jurisdiction by a
federal court, it must be because this is an “exceptional case.” See id. at 234
& n.5 (quoting Daimler, 571 U.S. at 139 n.19).
The plaintiffs-appellants assert that, as part of its business, NYK Line
engages in, inter alia, the following activities: It operates an air-cargo service
at six U.S. airports and operates twenty-seven shipping terminals in U.S.
ports. It also regularly calls on at least thirty U.S. ports, and dedicates seven
of its vessels exclusively for the delivery of automobiles to the United States.
NYK Line is licensed by the Federal Maritime Commission and is subject to
its oversight. And shares of NYK Line stock are deposited at the Bank of New
York Mellon and are available for purchase by U.S. investors. In short, NYK
Line engages in vast amounts of shipping business in the United States,
directly and through at least eleven wholly owned U.S. subsidiaries. 12 NYK
12
On appeal, NYK Line contests whether its subsidiaries’ contacts are relevant to
establishing whether the requisite minimum contacts exist in this case. Because we
conclude that, even considering these contacts, personal jurisdiction could not be properly
established, we do not reach this issue.
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Line clarifies that calls made to the United States ports, by vessels owned and
chartered by it, from 2017-2019 represent between six and eight percent of
all calls it made at ports worldwide for the same time period. NYK Line also
highlights that only 24 of its 1,732 employees reside in the United States.
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. Daimler, 571 U.S. at 139
(quoting Int’l Shoe, 326 U.S. at 318); see Patterson, 826 F.3d at 234 n.5. We
agree with the district court that personal jurisdiction over NYK Line cannot
be constitutionally established, as we can do no other.
IV.
Bound by the rule of orderliness we agree with the district court that
personal jurisdiction over NYK Line cannot be constitutionally established
under existing Fifth Circuit precedent. We AFFIRM.
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Jennifer Walker Elrod, Circuit Judge, joined by Don R. Willett,
Circuit Judge, specially concurring:
I wholly concur in the well-reasoned majority opinion. I agree with
the majority opinion that the case would be decided differently if we were not
bound by Patterson v. Aker Solutions, Inc., 826 F.3d 231 (5th Cir. 2016). I
further agree with the majority opinion that Patterson muddled the Fifth
Amendment due process inquiry by applying Fourteenth Amendment
caselaw. Our interpretation of Fourteenth Amendment due process is
shaped by federalism concerns that are irrelevant to the Fifth Amendment
context. I write separately to urge our court to correct our course and undo
the unnecessary limitation we have imposed on Federal Rule of Civil
Procedure 4(k)(2).
Rule 4(k)(2) was promulgated and approved by Congress in response
to a gap in federal jurisdiction that the Supreme Court identified in Omni
Capital International v. Rudolf Wolff & Co., 484 U.S. 97 (1987). 1 In that case,
the Court declined to decide whether “a federal court could exercise
personal jurisdiction, consistent with the Fifth Amendment, based on an
aggregation of the defendant’s contacts with the Nation as a whole, rather
than on its contacts with the State in which the federal court sits.” Id. at 102
n.5. Although noting that it was “not blind to the consequences” of holding
that there was no basis to serve the foreign defendants in that case, the
Supreme Court concluded that the responsibility to fill the jurisdictional gap
1
The Amicus Curiae brief submitted by civil procedure professors Arthur R. Miller,
Helen Hershkoff, John E. Sexton, Adam N. Steinman, and Alan B. Morrison outlines in
greater detail the relevant history of how Rule 4(k)(2) “was passed in 1993 specifically to
authorize federal courts, consistent with the Constitution, to exercise personal jurisdiction
over federal claims that could not otherwise be heard in any state court.”
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“rests with those who propose the Federal Rules of Civil Procedure and with
Congress.” Id. at 111. Rule 4(k)(2) filled that gap.
In Patterson, our court unwittingly limited Rule 4(k)(2) by collapsing
the Fifth Amendment and Fourteenth Amendment due process analyses.
826 F.3d at 234. In Patterson, the plaintiff did not contest the application of
Fourteenth Amendment caselaw to explicate the Fifth Amendment
standard, and thus the panel did not have the benefit of briefing about the
important distinctions between Fifth and Fourteenth Amendment due
process limitations on the exercise of personal jurisdiction.
However, there are important reasons to apply a jurisdictional
framework that distinguishes between Fifth Amendment and Fourteenth
Amendment due process standards.
To start, the federalism concerns that animate the Supreme Court’s
jurisprudence on the jurisdictional limitations of the Fourteenth
Amendment’s Due Process Clause are irrelevant in the Fifth Amendment
context. Recently in Ford Motor Co. v. Montana Eighth Judicial District, the
Supreme Court emphasized that “principles of ‘interstate federalism’” are
central to its analysis of Fourteenth Amendment due process limitations on
personal jurisdiction. 141 S. Ct. 1017, 1030 (2021) (quoting World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980)). These federalism
concerns are irrelevant in the Fifth Amendment context where federal law
applies uniformly. All that matters is the sovereign authority of the United
States itself. Simply put, it does not make sense to consider the sovereignty
of individual states the exact same way we consider the sovereignty of the
United States within the international community.
Recognizing this conceptual distinction, the Supreme Court has
explicitly left “open the question whether the Fifth Amendment imposes the
same restrictions on the exercise of personal jurisdiction by a federal court”
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as the Fourteenth Amendment does on a state court. Bristol-Myers Squibb
Co. v. Superior Ct., 137 S. Ct. 1773, 1784 (2017).
Furthermore, we must be precise in expounding on the constitutional
principles that underlie our exercise of personal jurisdiction or else we risk
imposing restraints on federal courts’ exercise of personal jurisdiction (and,
relatedly, Congress’s ability to authorize jurisdiction by statute) beyond what
the Constitution requires and what Rule 4(k)(2) contemplates.
Indeed, this case illustrates how applying the wrong standard limits
Rule 4(k)(2) precisely where it is intended to apply. The defendant here,
NYK Line, regularly makes calls to at least thirty United States ports,
operates twenty-seven shipping terminals in United States ports, and
operates an air-cargo service at six United States airports. Shares of NYK
Line stock are deposited at the Bank of New York Mellon and may be
purchased by United States investors. NYK Line’s consolidated revenue
from its North American entities in the fiscal year ending in March 2019 was
$1.47 billion. 2 Moreover, and importantly, as a consequence of its extensive
business activity with the United States, NYK Line frequently litigates in
United States courts—bringing over thirty lawsuits in federal district courts
since 2010. Our decision today, compelled by Patterson, determines that a
global corporation with extensive contacts with the United States cannot be
haled into federal court for federal claims arising out of a maritime collision
that killed seven United States Navy sailors.
The Supreme Court has not yet definitively outlined what constraints
the Fifth Amendment’s Due Process Clause imposes on federal courts’
2
The district court denied jurisdictional discovery in this case, and thus plaintiffs
made their prima facie case based primarily on publicly available information, some of which
did not disaggregate NYK Line’s United States data from its North America data.
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exercise of personal jurisdiction. For now, we can only ensure that our
precedent does not add to the doctrinal confusion, and I contend that
Patterson does exactly that. This case presents a good vehicle for our en banc
court to correct our course on Rule 4(k)(2) and apply Fifth Amendment due
process precedent to cases where personal jurisdiction depends on satisfying
Fifth Amendment due process requirements.
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