Case: 18-20248     Document: 00514952518       Page: 1   Date Filed: 05/10/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                   No. 18-20248                         May 10, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk


JOSE CARMONA,

                                             Plaintiff–Appellant,

versus

LEO SHIP MANAGEMENT, INCORPORATED,

                                             Defendant–Appellee.




                 Appeal from the United States District Court
                      for the Southern District of Texas




Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Jose Carmona was injured while unloading cargo from a vessel docked
outside Houston. He sued Leo Ship Management, Inc. (“LSM”), a foreign cor-
poration that managed the ship. Noting that LSM had no control over the
ship’s ports of call, the district court dismissed for want of personal jurisdiction,
holding that the company did not purposely avail itself of the privilege of con-
ducting activities in Texas. We affirm in part, vacate in part, and remand.
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                                 No. 18-20248
                                        I.
      As a stevedore, Carmona was tasked with unloading cargo from the
M/V Komatsushima Star in April 2014. While he was rigging a bundle of pipes
in the ship’s hold, the pipes fell and injured his ankle and lower leg.

      LSM is a Philippine corporation with its principal place of business in
Manila. None of its employees, officers, shareholders, or directors has ever
resided in Texas, and the company does not own or rent property in the state.
LSM solicits no business in Texas and has never contracted with a Texas resi-
dent to render performance there.

      In 2009, LSM contracted with the owners of the M/V Komatsushima Star
to serve as the ship manager. In that capacity, LSM supplied and supervised
the crew and arranged for necessary repairs and maintenance to ensure com-
pliance with the laws “of the places where [the vessel] trades.” The contract
was freely terminable with two months’ notice. Under the agreement, LSM
did not have an ownership interest in the ship and could not direct where it
traveled, what it carried, or for whom it worked. Rather, the charterer or sub-
charterer possessed the sole authority to set the ship’s course. Nonetheless,
the agreement required the ship’s owners and LSM “to maintain close com-
munication with each other and [to] share relevant information regarding [the]
ship’s schedule” and “port information.” In fact, LSM had advance notice that
the ship would be docking in Texas to discharge the pipes.

      Although a third party had loaded the pipes aboard the ship outside the
United States, Carmona sued LSM in state court, claiming negligence under
general maritime law and the Longshore and Harbor Workers’ Compensation
Act (“LHWCA”). See 33 U.S.C. §§ 905(b), 933. Specifically, he alleged that
LSM breached its duty to (1) stow the pipes properly; (2) minimize hazards
associated with falling pipes; (3) take precautions to protect workers;

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                                  No. 18-20248
(4) provide a safe work environment; (5) turn over the vessel in a safe condition
for discharging cargo; (6) warn of hidden dangers; and (7) intervene. After
removing to federal court, LSM moved to dismiss for lack of personal juris-
diction. See FED. R. CIV. P. 12(b)(2).

      The district court granted the motion, finding that LSM did not pur-
posely avail itself of the benefits and protections of Texas. The court reasoned
that because LSM had no control over the itinerary, any contact with the state
was “merely fortuitous or random.” This appeal followed.

                                         II.
      We review a ruling on personal jurisdiction de novo. Sangha v. Navig8
ShipManagement Private Ltd., 

, 101 (5th Cir. 2018). Where, as
here, the district court dismissed “without conducting an evidentiary hearing,
the plaintiff bears the burden of establishing only a prima facie case of personal
jurisdiction.” 

the plaintiff’s uncontroverted, nonconclusional
factual allegations as true and resolve all controverted allegations in the plain-
tiff’s favor.” Panda Brandywine Corp. v. Potomac Elec. Power Co., 

, 868 (5th Cir. 2001) (per curiam).

      There is personal jurisdiction if the forum state’s long-arm statute
extends to the nonresident defendant and the exercise of jurisdiction comports
with due process. 

. Because Texas’s long-arm statute
is coextensive with the Due Process Clause of the Fourteenth Amendment, the
two inquiries merge. 

jurisdiction can be general or
specific,” this case implicates only the latter. See Seiferth v. Helicopteros Atu-
neros, Inc., 

, 271 (5th Cir. 2006). In evaluating whether due pro-
cess permits the exercise of specific jurisdiction, we consider
            (1) whether the defendant has minimum contacts with
            the forum state, i.e., whether it purposely directed its

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                                       No. 18-20248
               activities toward the forum state or purposefully
               availed itself of the privileges of conducting activities
               there; (2) whether the plaintiff’s cause of action arises
               out of or results from the defendant’s forum-related
               contacts; and (3) whether the exercise of personal jur-
               isdiction is fair and reasonable.

If the plaintiff establishes the first two prongs, the bur-
den shifts to the defendant to make a “compelling case” that the assertion of
jurisdiction is not fair or reasonable. 1

                                              A.
      For there to be minimum contacts, a defendant must have “purposefully
availed himself of the benefits and protections of the forum state” 2 “such that
he should reasonably anticipate being haled into court there.” 3 That require-
ment is the “constitutional touchstone” of personal jurisdiction. Burger 

. It “ensures that a defendant will not be haled into a juris-
diction solely as a result of random, fortuitous, or attenuated contacts, or of the
unilateral activity of another party or a third person.” 

(internal quo-
tation marks and citations omitted). That is, the plaintiff cannot supply “the
only link between the defendant and the forum.” Walden v. Fiore, 

, 285 (2014). Rather, jurisdiction is proper only where the “defendant him-
self” made deliberate contact with the forum. 

(quoting Burger 

).

      The parties do not dispute that LSM made contacts with the forum when




      1  

(quoting Burger King Corp. v. Rudzewicz, 

, 477
(1985)); see also 

.
      2   Moncrief Oil Int’l Inc. v. OAO Gazprom, 

, 311 (5th Cir. 2007).
      3 Burger 

(quoting World-Wide Volkswagen Corp. v. Woodson,

, 297 (1980)).
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                                       No. 18-20248
the vessel, containing its employees, docked outside Houston. 4 Instead, they
disagree as to (1) whether a defendant’s contacts with a forum and the purpose-
fulness of those contacts are independent inquiries and (2) if so, whether LSM’s
presence in Texas was purposeful.

                                              1.
       According to Carmona, knowing and voluntary entry into a forum state,
coupled with commission of a tort inside that state, is sufficient to support
specific jurisdiction, irrespective of whether the defendant purposely availed
itself of the privilege of conducting activities there. Carmona posits that pur-
poseful availment is analytically useful only in “effects” cases in which a defen-
dant’s out-of-state conduct inflicted injury within the forum. He suggests that
in such cases, purposeful availment operates as a “conceptual tool” for deter-
mining whether the defendant’s contacts with the forum “are such that he
should reasonably anticipate” litigation there. Burger 

(quoting World-Wide 

). But Carmona urges that
where, as here, the tortious act both occurred and caused injury within the
forum, the court need not independently consider whether the conduct was
purposefully directed at the forum state or whether the defendant purposefully
availed itself of the forum state’s protections.

       In most cases, the defendant’s commission of a tort while physically pres-
ent in a state will readily confer specific jurisdiction. 5 “Generally, the com-
mission of an intentional tort in a forum state is a purposeful act that will
satisfy the purposeful availment prong . . . .” 16 JAMES WM. MOORE ET AL.,


       4See Trois v. Apple Tree Auction Ctr., Inc., 

, 490 (5th Cir. 2018) (“A
defendant may be subject to personal jurisdiction because of the activities of its agent within
the forum state . . . .”).
       5  We are aware of no example—and LSM has cited none—in which a court lacked
jurisdiction under those circumstances.
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                                      No. 18-20248
MOORE’S FEDERAL PRACTICE § 108.42[3][a], at 108-70 (3d ed. 2019). Nonethe-
less, while recognizing that a defendant’s physical entry into a forum “is
certainly a relevant contact,” 6 the Supreme Court has never held that such
presence is dispositive in the “minimum contacts” analysis. 7 Instead, the
Court has stressed that “where the defendant deliberately has engaged in
significant activities within a State, . . . he manifestly has availed himself of
the privilege of conducting business there.” 

–76 (emphasis added)
(cleaned up).

       Purposeful availment is a constitutional prerequisite for jurisdiction,
regardless of where the tortious conduct occurred. In Elkhart Engineering
Corp. v. Dornier Werke, 

(5th Cir. 1965), the plaintiff sued a Ger-
man corporation for crashing his plane during a demonstration in Alabama.
Beyond the requirement that the defendant have “minimum contacts . . . with
the forum,” we recognized “the additional element that in every case . . . there
must be ‘some act by which the defendant purposefully avails itself of the
privilege of conducting activities within the forum State, thus invoking the
benefits and protections of its laws.’” 

(quoting Hanson v. Denckla,

, 253 (1958)). Because the defendant “voluntarily entered [the]
state and invoked the protections of its laws,” personal jurisdiction extended
to “any tortious acts committed while there.” 

(emphasis added).

       Similarly, in Jones v. Petty-Ray Geophysical Geosource, Inc., 

(5th Cir. 1992), we explained that a nonresident defendant’s activities,
“whether direct acts in the forum or conduct outside the forum, must justify a



       6   

.
       7 See Burger 

(noting that “territorial presence” often will only
“enhance a potential defendant’s affiliation with a State and reinforce the reasonable fore-
seeability of suit there”) (emphasis added).
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                                       No. 18-20248
conclusion that the defendant should reasonably anticipate being called into
court there.” 

(emphasis added). As the “constitutional touchstone”
of personal jurisdiction, purposeful availment is an essential element even
where the defendant committed a tort within the forum state. Burger 

.

       In an effort to show otherwise, Carmona cites Burnham v. Superior
Court of California, 

, 611 (1990) (plurality opinion), for the propo-
sition that a defendant’s physical presence in the forum—“no matter how fleet-
ing”—is sufficient to trigger personal jurisdiction. But Burnham is inapposite
for two reasons. First, it concerned “tag” or “transient jurisdiction,” whereby
personal jurisdiction is established by serving process on a nonresident defen-
dant while it is physically present in the forum state. 

The Court
never addressed whether personal jurisdiction might exist over an absent non-
resident that had previously committed a tort in the forum. 8 Second, because
the defendant “voluntarily and knowingly” entered the forum, the Court had
no occasion to consider whether physical presence alone permits the exercise
of jurisdiction. 9

       Invoking Moncrief Oil, Carmona yet insists that “[w]hen a nonresident
defendant commits a tort within the state . . . [,] that tortious conduct amounts




       8  See 

(plurality opinion) (observing that traditional princi-
ples of jurisdiction have treated “physically present defendants” and “absent [defendants] . . .
quite differently”).
       9 See 

(Brennan, J., concurring) (“[A]s a rule the exercise of personal juris-
diction over a defendant based on his voluntary presence in the forum will satisfy the re-
quirements of due process” (emphasis added)).
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                                       No. 18-20248
to sufficient minimum contacts with the state” to allow the assertion of juris-
diction. 10 But nothing in that statement abrogates the constitutional require-
ment that a defendant deliberately make those contacts. Indeed, we began our
analysis in Moncrief Oil by pronouncing that a defendant must “purposefully
. . . establish[] minimum contacts with the forum state.” 11 And one of the cor-
porate defendants had done so. 12

       In sum, a defendant’s contacts with a forum and the purposefulness of
those contacts are distinct—though often overlapping—inquiries. Although
tortious conduct within a forum ensures the existence of contacts, see Moncrief

, it does not always guarantee that such contacts were
deliberate. Accordingly, LSM is subject to jurisdiction only if it has purposely
directed its activities to the forum state or purposely availed itself of its
protections.

                                              2.
       LSM purposely availed itself of Texas when its employees voluntarily
entered the jurisdiction aboard the vessel. Although LSM had no control over
the vessel’s course, the ship management agreement contemplated that the




       10 Moncrief 

(second alteration in original) (quoting Guidry v. U.S.
Tobacco Co., 

, 628 (5th Cir. 1999)).
       11 See 

(cleaned up). The other cases Carmona raises all recite that same

test ad nauseum. See Streber v. Hunter, 

, 718 (5th Cir. 2000); 

; D.J. Invs., Inc. v. Metzeler Motorcycle Tire Agent Gregg, Inc., 

, 545 & n.1
(5th Cir. 1985).
       12See Moncrief 

–14 (noting that the corporation’s vice-chairman
visited Texas to speak at an energy summit); see also 

(holding that
the defendant “‘purposefully availed’ himself of Texas laws when he gave tax advice that he
knew would be received by a Texas client”); 

(finding that the
defendants’ “alleged intentional and negligent tortious actions were knowingly initiated and
aimed at” residents of the forum state); D.J. 

(concluding that the
defendants “engaged in purposeful activity which was directed at Texas”).
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                                   No. 18-20248
ship would travel to locations throughout the world. 13 Moreover, the contract
required the ship’s owners “to maintain close communication with” LSM,
“shar[ing] relevant information regarding [the] ship’s schedule” and “port
information.” Notably, LSM received actual notice that the ship would be
departing for Texas. Especially considering that the contract was freely ter-
minable with two months’ notice, LSM was hardly compelled to travel to Texas
against its will. Rather, it made a deliberate choice to keep its employees
aboard a ship bound for Texas. LSM thus purposely availed itself of the bene-
fits and protections of the forum state because it reasonably should have anti-
cipated being haled into court for torts committed there. See Burger 

.

      LSM misconstrues Asarco, Inc. v. Glenara, Ltd., 

(5th Cir.
1990), in asserting that there is no purposeful availment where a ship manager
does not control the itinerary. There, the plaintiffs sued both the owner and
the manager of a ship to recover damages for cargo lost at sea when the vessel
sank in the Pacific Ocean. Although no tortious conduct occurred in the forum
state, the plaintiffs claimed specific jurisdiction because the defendants had
allegedly contracted to deliver cargo there, “and their failure to do so . . . [had
given] rise to this cause of action.” 

      We disagreed. In light of the “uncontroverted evidence negating the exis-
tence of any such contract,” the defendants did not establish minimum
contacts. 

that the vessel [had] set sail for a Louisiana port d[id]
not imply an agreement by either defendant to deliver cargo there” because the




      13 For instance, the contract authorized LSM to incur necessary expenditures to
ensure compliance with the “laws . . . of the places where [the vessel] trades.”
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                                   No. 18-20248
vessel had “sailed only on orders from its charterers.” 

cific jurisdiction d[id] not lie” where “neither [the owner] nor [the manager had]
purposefully directed the cargo to Louisiana.” 

      This case is plainly distinguishable from Asarco in that LSM engaged in
purportedly tortious conduct while present in the forum state. Unlike the liti-
gants in Asarco, the parties do not contest that LSM made forum contacts that
gave rise to at least some of Carmona’s claims. Asarco thus sheds little light
on the question whether LSM purposely availed itself of Texas by allowing its
agents to enter the forum and allegedly commit a tort therein. Additionally,
the fact that LSM did not seek to abrogate its contract despite knowing that
the ship was en route to Texas “impl[ies] an agreement . . . to deliver cargo
there.” 

Hence, even under Asarco, LSM purposely directed its activ-
ities at the forum state or purposely availed itself of that state’s benefits and
protections.

      LSM’s reliance on Nuovo Pignone, SpA v. STORMAN ASIA M/V, 

(5th Cir. 2002), 14 is similarly unavailing. There, the defendant agreed
to supply a safe vessel for the transportation of a reactor from Italy to Louisi-
ana. While the reactor was being unloaded in Louisiana, the onboard crane
failed, causing the reactor to fall. 

We found personal jurisdiction
because the contract had specified Louisiana as the destination. 

Considering the defendant “reasonably should have anticipated that its failure
to meet its contractual obligations might subject it to suit there,” we held that
the defendant could “[]not now claim that its contact with Louisiana was
merely fortuitous, random, or attenuated.” 

the outcome would
be different, however, if Louisiana were not the intended destination but


      14Nuovo Pignone was abrogated on grounds not relevant here by Water Splash, Inc.
v. Menon, 

(2017).
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                                   No. 18-20248
unexpected circumstances such as “bad weather” forced the ship to dock there.

n.2. “In that case, [the defendant] could not have reasonably foreseen
being haled into a Louisiana court.” 

by far is not the situation here. The location of the vessel was the
product of neither compulsion nor surprise. Instead, with full knowledge of the
intended destination, LSM deliberately permitted its employees to enter
Texas. It may not now escape liability resulting from its considered commer-
cial decision.

                                         B.
      For specific jurisdiction, Carmona’s claims still must stem from LSM’s
contacts with Texas. See 

“A plaintiff bringing multiple claims
that arise out of different forum contacts of the defendant must establish spe-
cific jurisdiction for each claim.” 

. Carmona alleges
that LSM breached its duty under general maritime law and the LHWCA to
(1) stow the pipes properly; (2) minimize cargo hazards; (3) take precautions to
protect workers; (4) provide a safe work environment; (5) turn over the vessel
in a safe condition for discharging activities; (6) warn of hidden dangers; and
(7) intervene.

      LSM concedes that most of Carmona’s claims result from its conduct in
Texas after the ship’s arrival there. But it maintains that Carmona adduced
no evidence showing that LSM’s alleged failure to minimize cargo hazards or
to take safety precautions occurred in Texas. Not so: Carmona averred that
while the ship was docked in Texas, LSM’s crewmember had inspected the pipe
bundles but failed to ensure that they were properly stacked for discharge.



      15The defendant at issue, Fagioli, never was physically present in the forum—an
important distinction vis-à-vis LSM.
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                                       No. 18-20248
When viewed in Carmona’s favor, such allegations are sufficient to establish
that those two claims arise out of LSM’s forum contacts.

       Nevertheless, LSM presented undisputed evidence that a third party
had stowed the pipes aboard the ship while it was outside the United States.
Unlike Carmona’s other allegations, the claim that the pipes were improperly
stowed does not stem from LSM’s activities in Texas. Instead, the alleged tor-
tious conduct occurred outside the United States at the hands of a third party.
As a result, the district court correctly dismissed, for want of personal
jurisdiction, the claim of failure to load the pipes properly. 16

                                             C.
       Finally, we ask whether the exercise of personal jurisdiction accords
“with traditional notions of fair play and substantial justice.”                   

(cleaned up). Because the district court did not reach that
question, we remand for it to decide that prong. See 

.

       The dismissal, for want of personal jurisdiction, of the claim that LSM
negligently stowed the pipes is AFFIRMED. Dismissal of the remaining claims
is VACATED and REMANDED for proceedings as needed. We express no view
on what decisions the district court should make on remand or on what matters
it may consider.




       16 Carmona suggests that because he has raised only one type of claim—i.e., negli-
gence—the court need not analyze specific jurisdiction on a claim-by-claim basis. But it mat-
ters not that Carmona’s allegations all sound in negligence; the court must separately con-
sider specific jurisdiction for each claim that arises from different forum contacts. See Sei-

.
                                             12