UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2000
(Argued: February 27, 2001
Decided: August 03, 2001 )
Docket No. 00-7935
In the Matter of the Complaint of:
RATIONIS ENTERPRISES, INC. OF PANAMA, as Owner, and MEDITERRANEAN SHIPPING
CO., S.A. OF GENEVA, as Bareboat Charterer of the M/V MSC CARLA for Exoneration
from or Limitation of Liability.
HYUNDAI MIPO DOCKYARD CO., LTD.,
- v. -
AEP/BORDEN INDUSTRIES; ANGELO BROTHERS, CO.;
- - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - -
B e f o r e: WINTER, STRAUB, and POOLER, Circuit
Appeal from an order of the United States
District Court for the Southern District of New York (Richard Owen, Judge)
enjoining appellant from prosecuting a declaratory judgment action in Korea.
Appellant argues, inter alia, that the injunction should be vacated
on the merits, the district court should have held a hearing prior to issuing
the injunction, and the district court lacked personal jurisdiction over
it. Because we are unable to determine whether appellant forfeited its
jurisdictional defense and because we further find that the district court
did not properly establish the existence of personal jurisdiction over
appellant, we vacate the injunction and remand.
RAYMOND J. BURKE, JR., Burke &
Parsons (Christopher H. Dillon and Chan W. Sung, of counsel), New York,
New York, for Third-Party-Defendant-Appellant.
Hyundai Mipo Dockyard Co., Ltd. ("HMD"), a Korean
shipyard, appeals from Judge Owen's order enjoining it from proceeding
with a declaratory judgment action in Korea. See In re Complaint
of Rationis Enters., Inc., No. 97 CV 9052, 2000 WL 1015918 (S.D.N.Y.
July 24, 2000). HMD argues that: (i) the district court gave undue weight
to improper factors when it decided to issue the antisuit injunction; (ii)
the court erred by refusing to conduct a pre-injunction evidentiary hearing;
and (iii) the evidence was insufficient to establish personal jurisdiction
over HMD.1 Appellees,
three American cargo companies, dispute these contentions and argue further
that HMD forfeited the jurisdictional defense both by not timely asserting
it and by engaging in pre-trial activity, including discovery.
EDWARD C. RADZIK, Donovan Parry McDermott
& Radzik (William E. Ecenbarger, Jr., of counsel), New York, New York,
WINTER, Circuit Judge:
We cannot determine from the record whether
HMD forfeited its defense of lack of personal jurisdiction. We further
conclude that, if the defense was not forfeited, a pre-injunction evidentiary
hearing was required because essential facts related to whether the court
had personal jurisdiction over HMD were in dispute. We therefore vacate
the injunction and remand for an evidentiary hearing on the forfeiture
issue and, if appropriate, the merits of HMD's jurisdictional defense.
Because the jurisdictional issues must be resolved first, we do not decide
whether the issuance of an antisuit injunction was proper.
The facts are set out in detail in the district
court's various opinions in this matter, see, e.g., Rationis,
2000 WL 1015918, at *1; Schreiber Foods Int'l, Inc. v. Intercargo Napoli
S.R.L., No. 98 CV 5954, 1999 WL 33469 (S.D.N.Y. Jan. 26, 1999), vacated
by Mediterranean Shipping Co. S.A. Geneva v. POL-Atl., 229 F.3d
397 (2d Cir. 2000); In re Complaint of Rationis Enters., Inc., No.
97 CV 9052, 1999 WL 6364 (S.D.N.Y. Jan. 7, 1999), as well as in our previously
published decision on a related claim, see Mediterranean Shipping
Co., 229 F.3d at 397, familiarity with which are assumed. We therefore
summarize only the facts relevant to the present appeal.
On November 24, 1997, the M/V MSC Carla,
a ship carrying more than 1600 shipping containers, broke in half en route
from France to the United States. Half of the vessel sank, along with its
cargo. HMD had elongated the Carla in 1984 by installing a mid-body
insert. When the Carla split, it did so near one of the seams joining
the original hull with HMD's insert.
On December 9, 1997, the ship's owner filed
a petition under the Limitation of Shipowners' Liability Act, 46 App. U.S.C.
§§ 181 et seq., in the Southern District of New
York. That Act provides a procedure in the exercise of admiralty jurisdiction
that allows a single federal court to determine all relevant issues related
to liability and limits the shipowner's liability to the salvage value
of the vessel plus the value of freight then pending, should exoneration
HMD was brought into this action in January
1998, when the approximately 1000 cargo claimants in the limitation proceeding
put the shipyard on notice that they intended to hold it jointly and severally
responsible for the casualty. HMD responded by seeking a declaratory judgment
of non- liability from the Ulsan District Court of Korea in June 1998.
In the Korean action, HMD served only three of the 1000 cargo claimants,
namely, the three appellees in this appeal. The three cargo claimants served
were apparently selected because they are essentially the first three alphabetically.
In September 1998, various cargo claimants
began serving third-party complaints on HMD, at HMD's New Jersey office.
In November 1999, appellees -- the three cargo claimants sued by HMD in
Korea -- moved in the Southern District to enjoin HMD's Korean action against
The district court granted the injunction.
The grounds primarily relied on were that: (i) the "unusual size and complexity"
of the case made it preferable that all claims be settled "in one action
to the extent possible," Rationis, 2000 WL 1015918, at *2 (internal
quotation marks omitted), and (ii) the fact that HMD brought its Korean
action against only three of the 1000 cargo claimants might create difficult
problems of collateral estoppel unless the court "enjoin[ed] the risk of
them occurring," id.
The district court also found no merit in
HMD's claim that the court lacked personal jurisdiction over it. The court
HMD with its sales office in Englewood
Cliffs, New Jersey, as observed, right across the Hudson River from New
York City, and a New York (Manhattan) telephone listing in the White Pages,
has been served in this proceeding, filed an answer, and participated in
the case, has not moved to dismiss for lack of personal jurisdiction, and
has availed itself of the United States at large.
Id. at *3. It therefore held that personal
jurisdiction had been properly established because HMD had sufficient contacts
in the "bulge area." See Fed. R. Civ. P. 4(k) ("Service of a summons
. . . is effective to establish jurisdiction over the person of a defendant
. . . who is a party joined under Rule 14 or Rule 19 and is served at a
place within a judicial district of the United States and not more than
100 miles from the place from which the summons issues . . . ."); Salamon
v. Motor Vessel Poling Bros. No. 11, Inc., No. 87 CV 3369, 1989 WL
65517, at *1 (E.D.N.Y. June 6, 1989) ("The circuit courts have uniformly
concluded that if a party delineated in Rule 4[k] has minimum contacts
with the bulge area, the district court in the forum state gains personal
jurisdiction over him through service of process pursuant to Rule 4.").
The district court also noted that HMD had participated in discovery in
the United States. See Rationis, 2000 WL 1015918, at *3 n.4.
This appeal followed. HMD contends that the
injunction should not have been issued in light of China Trade &
Development Corp. v. M.V. Choong Yong, 837 F.2d 33, 36 (2d Cir. 1987).
We held there that, in cases like the present one involving requests for
an antisuit injunction, courts should give more consideration to "whether
the foreign action threatens the jurisdiction of the enjoining forum" and
"whether strong public policies of the enjoining forum are threatened by
the foreign action" than to other factors, such as procedural convenience,
considered by the district court in HMD's case. HMD also argues, interalia,
that the district court should have held a pre-injunction evidentiary hearing.
"The requirement that jurisdiction be established
as a threshold matter springs from the nature and limits of the judicial
power of the United States and is inflexible and without exception." Steel
Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998) (internal
quotation marks and brackets omitted); see Ruhrgas AG v. Marathon
Oil Co., 526 U.S. 574, 578 (1999) (holding, as between subject-matter
and personal jurisdiction, "there is no unyielding jurisdictional hierarchy").
We therefore turn first to HMD's claim that the district court lacked personal
jurisdiction over it. See Fid. Partners, Inc. v. First Trust
Co., 142 F.3d 560, 565 (2d Cir. 1998) (recognizing Supreme Court's
rejection of approach whereby courts assume jurisdiction to decide merits
in favor of party challenging jurisdiction); see also Marra
v. Papandreou, 216 F.3d 1119, 1122 (D.C. Cir. 2000) (holding personal
jurisdiction is threshold determination that must precede merits).
a) Forfeiture of Objections to the Exercise
of Personal Jurisdiction
The cargo claimants contend that HMD has forfeited
its lack of personal jurisdiction defense.2See
Ruhrgas, 526 U.S. at 583 ("[S]ubject- matter jurisdiction . . .
is nonwaivable . . . while restrictions on a court's jurisdiction over
the person are waivable . . . ."). Specifically, appellees argue that HMD
missed the deadline imposed by a magistrate judge's scheduling order for
filing motions to dismiss. However, the scheduling order is ambiguous.
In May 1999, lawyers representing the largest cargo interests submitted
a proposed scheduling order to the magistrate judge that required that
"[a]ny motions to dismiss . . . based on jurisdictional or forum issues
should be filed by September 1, 1999." The magistrate judge's order adopted
the cargo interests' proposed schedule in part, subject to "the modifications
indicated below." In re Complaint of Rationis Enters., Inc., No.
97 CV 9052, at 1 (S.D.N.Y. May 12, 1999) (scheduling order). Among those
modifications was the following statement: "Dispositive motions, seeking
either dismissal, summary judgment or dispositive relief on any other basis,
if any, shall be served and filed no later than July 3, 2000." Id.
at 2. HMD argues that this modification extended the time for filing motions
to dismiss on jurisdictional grounds beyond the deadline suggested by the
cargo interests. Appellees, however, argue that the magistrate judge's
modification concerned only substantive, not jurisdictional, motions. The
district court did not address this issue, and we are unable to determine,
from either the proposed order or from the order the magistrate judge adopted,
which deadline the judge intended to impose for the filing of jurisdictional
Appellees also claim that, even if HMD did
not miss the filing deadline, it otherwise forfeited its jurisdictional
defense under standards set out in our decision in Hamilton v. Atlas
Turner, Inc., 197 F.3d 58 (2d Cir. 1999), cert. denied, 530
U.S. 1244 (2000). In Hamilton, we held that a defendant forfeited
its lack of personal jurisdiction defense when the defendant's answer asserted
the court's lack of personal jurisdiction, but the defendant did not move
to dismiss on those grounds until four years later. We found that "[c]onsiderable
pretrial activity," including discovery and settlement conferences, had
occurred during the four-year interval, and that the defendant had "several
clear opportunities" to make its motion earlier. Id. at 61-62.
Appellees argue that HMD has both engaged
in full discovery and foregone opportunities to raise the lack of personal
jurisdiction. Specifically, appellees note HMD's June 1999 letter to the
district court "question[ing] the need" for a pre-motion conference on
appellees' motion for the antisuit injunction. Appellees contend that HMD
should have used that opportunity to alert the court to its intention to
contest personal jurisdiction. HMD, however, points out that it raised
its personal jurisdiction defense in its answer, filed in October 1998,
and did not have any opportunity to move to dismiss on those grounds until
the first motion that involved HMD -- the motion for the antisuit injunction
-- was filed one year later. HMD also mentioned its intention to contest
jurisdiction in an April 1999 letter to appellees' counsel.3
As in the case of the scheduling order, we simply cannot determine on the
record before us whether HMD forfeited its objections to the exercise of
personal jurisdiction over it.
On remand, therefore, the district court should
determine whether HMD missed the filing deadline and/or whether it forfeited
its defense by participating in the litigation.
b) The Need for an Evidentiary Hearing
HMD also argues that the district court erred
by issuing the injunction without first holding an evidentiary hearing
on jurisdiction. We agree. Should the district court on remand conclude
that HMD did not forfeit its jurisdictional defense, we believe that a
hearing will then be required on the merits of that defense before another
injunction may be considered.
On a motion for an injunction, "[w]here .
. . essential facts are in dispute, there must be a hearing and appropriate
findings of fact must be made." Visual Sciences, Inc. v. Integrated
Communications Inc., 660 F.2d 56, 58 (2d Cir. 1981) (internal citation
omitted); see Fengler v. Numismatic Americana, Inc., 832
F.2d 745, 748 (2d Cir. 1987) (requiring pre-injunction evidentiary hearing
where "material facts were clearly in dispute"). "[A] federal court may
issue a preliminary injunction pending its determination of a substantial
question of federal jurisdiction of the action. . . . But substantial probability
that the court will find a basis for federal jurisdiction . . . is a crucial
element necessary to justify the issuance of an injunction pendente lite."
A. H. Bull S.S. Co. v. Nat'l Marine Egn'rs' Beneficial Ass'n, 250
F.2d 332, 337 (2d Cir. 1957); see also SEC v. Lauer, 52 F.3d
667, 671 (7th Cir. 1995) (issuing preliminary injunction, "court need no
more be certain that it has jurisdiction than it need be certain that the
plaintiff has a winning case on the merits"). In the present case, essential
facts relating to the court's personal jurisdiction over HMD remained in
The district court concluded here that it
had personal jurisdiction over HMD on the grounds that HMD had a sales
office in New Jersey, a Manhattan White Pages listing, and "has availed
itself of the United States at large." Rationis, 2000 WL 1015918,
at *3. HMD, however, claims that the telephone listing referenced does
not belong to it, and appellees do not contradict that assertion. Moreover,
HMD disputes that its contacts in New Jersey -- its local sales office
-- sufficed to establish the court's jurisdiction. While a local office
may constitute a "continuous and systematic" contact sufficient to allow
a court to hold that a defendant subjected itself to the general jurisdiction
of the forum state, Helicopteros Nacionales de Col., S.A. v. Hall,
466 U.S. 408, 416 (1984), the presence of such an office is not dispositive,
see MacInnes v. Fontainebleau Hotel Corp., 257 F.2d 832,
833-35 (2d Cir. 1958) (local office that received reservations for Florida
hotel business was not "doing business" in New York); see alsoOmeluk
v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir. 1995)
(lack of regular place of business significant for general jurisdiction
determination); Jarvis & Sons, Inc. v. Freeport Shipbuilding &
Marine Repair, Inc., 966 F.2d 1247, 1250 (8th Cir. 1992) (defendant,
who had no office or agent in forum state, had insufficient minimum contacts).
The district court made no findings regarding whether HMD had sufficient
minimum contacts apart from the fact that HMD had a local office and a
White Pages listing. See Metro. Life Ins. Co. v. Robertson-CECO
Corp., 84 F.3d 560, 567 (2d Cir. 1996) ("The due process test for personal
jurisdiction has two related components: the 'minimum contacts' inquiry
and the 'reasonableness' inquiry.").4
We note further that the court did not merely
issue a temporary injunction to maintain the status quo while
it decided the jurisdictional question. Rather, it issued a final injunction
on the merits restraining HMD from proceeding with its action in Korea.
A court may not grant a final, or even an interlocutory, injunction over
a party over whom it does not have personal jurisdiction. See Weitzman
v. Stein, 897 F.2d 653, 659 (2d Cir. 1990).
Appellees contend HMD's contacts sufficed;
HMD contends otherwise. There is no evidence in the record concerning the
nature of HMD's business in New Jersey, and it now appears that the district
court's reliance on the telephone listing was misplaced. Appellate review
is not possible under these circumstances, and essential facts clearly
remain in dispute. An evidentiary hearing will therefore be required on
jurisdiction before the court can reach the merits on remand, should it
wish to do so.
Because we vacate the injunction for the reasons
discussed above, we do not reach HMD's arguments on the merits, namely,
that the district court erred by focusing on two factors -- whether "proceedings
in the other forum prejudice other equitable considerations" and whether
"adjudication of the same issues in separate actions would result in delay,
inconvenience, expense, inconsistency, or a race to judgment," Rationis,
2000 WL 1015918, at *2 (internal quotations omitted) -- when it issued
the antisuit injunction. We note, however, that although we have not barred
consideration of those factors, we have clearly ruled that two other factors
-- "whether the foreign action threatens the jurisdiction of the enjoining
forum, and  whether strong public policies of the enjoining forum are
threatened by the foreign action" -- are entitled to far greater weight
in determining whether an antisuit injunction should issue. China Trade,
837 F.2d at 36; see Computer Assocs. Int'l, Inc. v. Altai, Inc.,
126 F.3d 365, 372 (2d Cir. 1997) (holding antisuit injunction improper
where "not necessary to protect our jurisdiction or the integrity of our
judgment"); cf. id. ("Antisuit injunctions should be granted
only with care and great restraint. Ordinarily when the courts of two sovereigns
have in personam jurisdiction, one court will not try to restrain
proceedings before the other.") (internal quotations and citations omitted).
The district court did not consider these factors in any detail, and even
intimated that HMD's case may not be controlled by China Trade,
see Rationis, 2000 WL 1015918, at *3. However, ChinaTrade
does appear to govern and, should the court once more reach the merits
of the antisuit injunction, it is directed to that case and its progeny
We therefore vacate the injunction and remand
for further proceedings not inconsistent with this opinion.
HMD also makes various claims regarding
other defects in the granting of the injunction, including its alleged
lack of specificity and the failure to provide for a bond. Because we vacate
the injunction on other grounds, see infra, we do not reach
Appellees argued forfeiture both at
oral argument and in their supplemental letter brief on that issue, which
was requested by the panel. However, appellees' initial brief stated: "While
[appellees] certainly maintain that HMD has waived any jurisdictional defense
by its conduct throughout this litigation, the issue of waiver is not before
this Court . . . ." In any event, HMD raised the issue in its brief and
the district court -- in holding that appellees had made the "requisite
showing" for jurisdiction -- appeared to rely, at least in part, on the
fact that HMD participated in the litigation without moving to dismiss
on jurisdictional grounds, Rationis, 2000 WL 1015918, at *3.
We further note that, although the parties
discuss this issue in terms of "waiver," we believe that the issue is more
properly described as one of "forfeiture." See Hamilton v. Atlas
Turner, Inc., 197 F.3d 58, 61 (2d Cir. 1999), cert. denied,
530 U.S. 1244 (2000). ("The term 'waiver' is best reserved for a litigant's
intentional relinquishment of a known right. Where a litigant's action
or inaction is deemed to incur the consequence of loss of a right, or,
as here, a defense, the term 'forfeiture' is more appropriate.").
HMD also claims that it raised the lack
of personal jurisdiction in its "Response to Request for Production of
Documents." However, that response is not part of the record on appeal.
The district court did not specify whether
it determined that it had personal jurisdiction over HMD based on specific
or general jurisdiction theories. See Metro. Life, 84 F.3d
at 567-68 ("Specific jurisdiction exists when a [s]tate exercises personal
jurisdiction over a defendant in a suit arising out of or related to the
defendant's contacts with the forum; a court's general jurisdiction, on
the other hand, is based on the defendant's general business contacts with
the forum state and permits a court to exercise its power in a case where
the subject matter of the suit is unrelated to those contacts.") (internal
quotations omitted). HMD argues that the claims relating to its lengthening
of the Carla do not relate to any activities in the United States
and, therefore, only general jurisdiction theories may be used to establish
personal jurisdiction over it. Although appellees do not appear to contend
otherwise, we do not decide whether specific jurisdiction theories might
be applicable, because the district court did not find facts adequate to
support a finding of jurisdiction under either set of theories.