UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20273
SYSTEM PIPE & SUPPLY, INC.,
Plaintiff-Appellant,
versus
M/V VIKTOR KURNATOVSKIY;
AZOV SHIPPING CO.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
February 26, 2001
Before POLITZ, DeMOSS, and STEWART, Circuit Judges.
POLITZ, Circuit Judge:
System Pipe & Supply, Inc., appeals the dismissal of its complaint for lack of
personal jurisdiction and the denial of its motion for a new trial. For the reasons
assigned, we vacate and remand.
BACKGROUND
System, a Texas Corporation with its principal place of business in Texas, filed
a complaint against M/V Viktor Kurnatovskiy, in rem, and against its owner, Azov
Shipping Company. According to the complaint, Azov is a foreign corporation not
authorized to do business in Texas which did business there by carrying cargo to the
Port of Houston on the Kurnatovskiy. The complaint further alleges that Azov
committed a tort in Texas. Azov has not designated, nor does it maintain an agent for
service in Texas. The address for service which System provided the Texas Secretary
of State is in the Ukraine.
According to the complaint, Azov transported cargo for the plaintiff from the
Ukraine to Houston in the defendant vessel. Azov acknowledged receipt of the cargo
on May 4, 1998 and issued a bill of lading which notes no exceptions or damages. The
ship docked at Houston and discharged the cargo on June 7, 1998. Upon arrival, much
of the cargo allegedly was rusted or otherwise damaged. System further alleges that
the damage was proximately caused by Azov’s acts or omissions which constituted
breach of contract, breach of bailment, and violations of its duties as a common carrier.
The Office of the Texas Secretary of State informs that it forwarded the
complaint to Azov. Azov made no appearance in court and System sought entry of a
default judgment. The district court, acting sua sponte, entered an order dismissing the
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case for lack of personal jurisdiction. System’s motion for a new trial was denied and
it timely appealed.
ANALYSIS
System contends that the district court erred in dismissing the complaint sua
sponte for lack of personal jurisdiction. The company notes that lack of personal
jurisdiction is a defense which may be waived. Consequently, it maintains that the
district court had no authority to assert this defense on behalf of Azov.
We previously have determined that a judgment entered without personal
jurisdiction is void.1 It should therefore be apparent that a district court has the duty
to assure that it has the power to enter a valid default judgment. Our colleagues in the
Tenth Circuit have held that, “[W]hen entry of default is sought against a party who has
failed to plead or otherwise defend, the district court has an affirmative duty to look
into its jurisdiction both over the subject matter and the parties.”2 We agree. The
district court committed no error in raising the issue of personal jurisdiction sua sponte.
1
Broadcast Music, Inc. v. M.T.S. Enterprises, Inc., 811 F.2d 278 (5th Cir. 1987).
2
Williams v. Life Savings and Loan, 802 F.2d 1200, 1203 (10th Cir. 1986). See also Dennis
Garberg & Assoc., Inc. v. Pack-Tech Int’l Corp., 115 F.3d 767 (10th Cir. 1997) (district court erred
in failing to determine whether it had personal jurisdiction over a non-appearing defendant before
entering default); In re Tuli, 172 F.3d 707 (9th Cir. 1999) (Bankruptcy court properly raised sua
sponte issue of personal jurisdiction over Iraq on motion for default judgment when Iraq failed to
enter an appearance).
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In the alternative, System maintains that even if the district court had the
authority to raise the issue, it erred in determining that it did not have personal
jurisdiction over Azov. The Texas long-arm statute authorizes personal jurisdiction to
the fullest extent allowed by the Constitution.3 In an action as is here presented, the
district court must determine whether exercising jurisdiction over the defendant is
consistent with the due process clause analysis of minimum contacts. A single contact
with the forum state may be sufficient to support personal jurisdiction, if the cause of
action arises out of that specific act.4 As a practical matter, however, a single act will
rarely suffice to meet the minimum contacts standard. The allegations in System’s
original petition reflect only a single contact with Texas: the discharge of cargo at the
port of Houston.
The trial court’s ruling opined that this “fortuitous call” of Azov’s vessel did not
confer personal jurisdiction over Azov. We do not perceive the docking and cargo
delivery at Houston to be merely “fortuitous.” The port of Houston was the specified
destination in this contract. The vessel was not at the port because of error or
happenstance. For present purposes, however, we need not resolve whether there were
sufficient minimum contacts with the state of Texas to satisfy personal jurisdiction
3
TEX. CIV. PRAC. & REM. CODE ANN. § 17.042 (West 2000).
4
Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415 (5th Cir. 1993).
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requirements. Another jurisdictional predicate is apparent.
System alleges that Azov committed a tort in the state of Texas. It would
appear from the pleadings that the actions which caused the damage to the cargo
occurred while the vessel was at sea or before. The alleged tort, accordingly, was not
committed in the state of Texas. But there necessarily is more to our jurisdictional
review.
System maintains that personal jurisdiction over Azov exists under the theory of
general jurisdiction. System correctly suggests that because its action arises under
federal admiralty law, it need not prove minimum contacts with the state of Texas, but
only with the United States as a whole.5 In its motion for a new trial, System detailed
its factual basis for claiming general jurisdiction, including: (1) Azov’s fleet of vessels
regularly calls at most major ports in over fifty countries, including the United States;
(2) in 1993, Azov established and began to advertise Azsco America Line to provide
service for U.S. Gulf Ports to the Mediterranean and Black Seas; (3) Azov maintained
5
This court has held that Federal Rule of Civil Procedure 4(k)(2) allows personal jurisdiction over
foreign defendants for claims arising under Federal law when the defendant has sufficient contacts
with the nation as a whole, despite lacking sufficient contacts to satisfy the due process concerns of
the long arm statute of a particular state. World Tank Carriers Corp. v. M/V Ya Mawlaya, 99 F.3d
717 (5th Cir. 1996).
Fed. R. Civ. P. 4(k)(2) provides:
If the exercise of jurisdiction is consistent with the Constitution and the laws 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.”
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another line of vessels to carry cargo from the east coast to Israel; (4) at least one of
Azov’s vessels had previously been detained in the state of Texas; (5) Azov’s ship, the
M/V Viktor Kurnatovskiy, called and discharged System’s cargo at the Port of
Houston; (6) since 1993, Azov has been a named party in approximately fifty actions
in United States District Courts; and (7) Azov had been a defendant in another suit
maintained in the Southern District of Texas which was not dismissed for lack of
personal jurisdiction.
Generally the plaintiff is required to make a prima facie showing of general
jurisdiction in the pleadings and record before the court at the time of the motion.
Neither System’s original complaint, nor its motion for default judgment contained any
allegations concerning Azov’s contacts with the United States in general. The
procedural posture of this case, however, is unusual. In most instances the personal
jurisdiction issue is resolved after a defendant moves to dismiss and the plaintiff has
been given an opportunity to respond. Here, because the district court raised the issue
sua sponte with no notice to the plaintiff, System had no such opportunity to respond.
The above allegations, if established, or evidence similar thereto, would be sufficient
for the plaintiff to make a prima facie showing of national minimum contacts. The
issue of general jurisdiction was not considered by the trial court.
The plaintiff’s original complaint invoked admiralty law. Accordingly, general
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jurisdiction should have been considered by the district court in determining whether
it lacked personal jurisdiction. We conclude that the district court erred in dismissing
this complaint without allowing the plaintiff an opportunity to respond to the court’s
concerns over personal jurisdiction. When the district court raises the issue of personal
jurisdiction sua sponte, the court should allow the plaintiff a reasonable opportunity to
present any available evidence supporting the court’s jurisdiction.
For the foregoing reasons, the judgment of dismissal is VACATED and this
action is REMANDED to the district court for further proceedings consistent herewith.
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