United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit April 13, 2004
Charles R. Fulbruge III
Clerk
No. 03-60611
MARIBEL DELGADO, as personal representative of the estate of Ruben
Delgado, M.D., for the benefit of the estate of Ruben Delgado,
M.D.; Maribel Delgado, individually, and on behalf of plaintiffs
Ruben Delgado, III and Gabriel Delgado, surviving minor heirs of
Ruben Delgado, Deceased,
Plaintiff-Appellant,
VERSUS
REEF RESORT LIMITED, a corporation, doing business as Ramon’s
Village Resort; HEADRICK COMPANIES INC; JOHN DOES, doing business
as Ramon’s Village Resort,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Mississippi
Before DAVIS, BARKSDALE and PRADO, Circuit Judges,
W. EUGENE DAVIS, Circuit Judge:
Plaintiff Maribel Delgado (“Delgado”) challenges the district
court’s order dismissing her tort suit against Reef Resort Limited
(“Reef”) for lack of personal jurisdiction. We affirm the district
court’s dismissal.
I.
Dr. Reuben Delgado (“Dr. Delgado”) never surfaced during a
recreational scuba diving trip off the coast of Belize in August
2001. He is presumed dead. The scuba trip was organized by
Ramon’s Village Resort, which is operated by defendant Reef Resort
Ltd. (“Reef”) and the Headrick Companies, Inc. (“Headrick”).
Headrick is a resident of Mississippi. Reef is a resident of
Belize but allegedly does business in Mississippi.
Maribel Delgado (“Delgado”), Dr. Delgado’s wife and a Florida
resident, brought suit in Mississippi state court on behalf of
herself, her two children, and Dr. Delgado’s estate for the
negligence of Reef during the scuba expedition. Reef removed the
case to federal court. Defendants Reef and Headrick then moved to
dismiss for lack of personal jurisdiction. The court denied
Headrick’s motion on grounds that jurisdiction over Headrick exists
under the Mississippi long arm statute because Headrick is a
corporate citizen of Mississippi. Reef, a Belize company, argued
that the Mississippi long-arm statute does not permit non-resident
suits against non-resident corporations merely doing business in
Mississippi and further that personal jurisdiction under Fed. R.
Civ. P. 4(k)(2) is not appropriate since the case does not arise
under the court’s admiralty jurisdiction. The district court
agreed and dismissed the case against Reef for lack of
jurisdiction. Delgado now challenges that ruling.
II.
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We review de novo dismissal for lack of personal jurisdiction
under Rule 12(b)(2). See Jobe v. ATR Marketing, Inc., 87 F.3d 751,
753 (5th Cir. 1996).
Federal courts sitting in diversity may exercise personal
jurisdiction over a non-resident where the state long-arm statute
grants jurisdiction and the exercise of jurisdiction is consistent
with federal due process. See Latshaw v. Johnston, 167 F.3d 208,
211 (5th Cir. 1999). The question raised in this case is whether
the Mississippi long-arm statute confers jurisdiction over Reef.
The Mississippi long-arm statute provides in relevant part:
Any nonresident person, firm, general or limited
partnership, or any foreign or other corporation not
qualified under the Constitution and laws of this state
as to doing business herein, who shall make a contract
with a resident of this state to be performed in whole or
in part by any party in this state, or who shall commit
a tort in whole or in part against a resident or
nonresident of this state, or who shall do any business
or perform any character of work or service in this
state, shall by such act or acts be deemed to be doing
business in Mississippi and shall thereby be subjected to
the jurisdiction of the courts of this state.
Miss. Code § 13-3-57.
This court has, on numerous occasions, interpreted the
Mississippi statute to mean that non-residents may not sue
non-resident corporations doing business in Mississippi. See,
e.g., Submersible Sys., Inc. v. Perforadora Central, S.A., 249 F.3d
413, 418 (5th Cir. 2001); Herrley v. Volkswagen of America, Inc.,
957 F.2d 216, 216 (5th Cir. 1992) (per curiam). No intervening
change in state statute or case law has occurred that would allow
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us to abandon the existing circuit precedent. Therefore, based on
binding precedent from this court the Mississippi long-arm statute
does not permit Delgado, a resident of Florida, to bring suit
against Reef, a resident of Belize, despite the fact that Reef does
business in Mississippi.
Delgado argues that this court’s precedent interpreting the
Mississippi long-arm statute violates the Privileges and Immunities
Clause of Article IV of the United States Constitution. Once again
we are bound by Fifth Circuit precedent on this issue. In Breeland
v. Hide-A-Way Lake, Inc., 585 F.2d 716 (5th Cir. 1978), the court
pointedly held that, “the ‘doing business’ provision of the
Mississippi long-arm statute may not be invoked by a nonresident
plaintiff and that the statute, so construed, does not deny a
nonresident plaintiff privileges and immunities secured under the
Constitution.” Id. at 721.
Delgado argues that the Breeland precedent has been abrogated
by intervening Supreme Court caselaw, namely Supreme Court of New
Hampshire v. Piper, 470 U.S. 274 (1985). Piper, however, did not
purport to change the Privileges and Immunities law the court
established in Breeland. Rather, the Supreme Court in Piper merely
applied long existing law to unique facts that have little or no
relationship to the case at bar. We are, therefore, bound by the
Breeland precedent which holds that the Mississippi long-arm
statute does not violate the Privileges and Immunities Clause.
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We therefore agree with the district court that the
Mississippi long-arm statute does not confer jurisdiction over
Reef.
III.
Delgado also seeks to invoke jurisdiction under Fed. R. Civ.
P. 4(k)(2) based on admiralty jurisdiction.
Rule 4(k)(2) provides service of process and personal
jurisdiction in any district court for cases arising under federal
law where the defendant has minimum contacts with the United States
as a whole sufficient to satisfy due process concerns and the
defendant is not subject to jurisdiction in any particular state:
If the exercise of jurisdiction is consistent with the
Constitution and 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.
Fed. R. Civ. P. 4(k)(2). This court has held that Rule 4(k)(2)
applies to cases sounding in admiralty since admiralty suits arise
under federal law. World Tanker Carriers Corp. v. MV Ya Mawlaya,
99 F.3d 717, 723 (5th Cir. 1996).
Delgado argues that Dr. Delgado’s death resulted from a
maritime tort and thus gives rise to admiralty jurisdiction. In
support of her position she asserts that 1) Dr. Delgado was
transported to the dive site by vessel, 2) improper preparations
were made for the dive, many of which would or should have occurred
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on the vessel on the way to the dive, 3) the negligence of the dive
crew caused disruption of maritime commerce because it generated
numerous distress calls, and 4) at the time of Dr. Delgado’s death
he was being supervised by members of the vessel’s crew. The
district court rejected Delgado’s attempted invocation of admiralty
jurisdiction finding no connection to maritime commerce or
traditional maritime activity.
We agree with the district court that the scuba accident in
this case did not result from a maritime tort. In order for an
accident to be a maritime tort so as to trigger admiralty
jurisdiction, the mishap must occur on navigable waters, the
accident must affect maritime commerce, and the activities leading
to the tort must be connected to traditional maritime activity.
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S.
527, 534 (1995). The activity surrounding the recreational scuba
diving activity in this case did not affect maritime commerce, and
these activities are not connected with traditional maritime
activity. Therefore, the district court correctly concluded that
Dr. Delgado’s death did not result from a maritime tort and that
admiralty jurisdiction does not attach on that basis.
Recognizing that admiralty jurisdiction might nevertheless
attach to Delgado’s Death on the High Seas Act claim, 46 App.
U.S.C. § 761 et seq. (“DOHSA”), we requested and received briefing
on the issue of whether DOHSA conferred federal admiralty
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jurisdiction in this case allowing the application of Rule 4(k)(2).
Although Delgado made the general argument that this case came
within the court’s admiralty jurisdiction, she did not make the
specific argument to the district court that DOHSA could serve as
a basis for federal admiralty jurisdiction. Delgado’s failure to
make this argument to the district court constitutes a forfeiture
of the argument and we are left to review the issue for plain error
only. See Crawford v. Falcon Drilling Co., Inc., 131 F.3d 1120,
1123 (5th Cir. 1997)
Under plain error review we reverse only where there is “error
that is plain and that affects substantial rights.” United States
v. Olano, 507 U.S. 725, 732 (1993). Moreover, reversal is in the
sound discretion of the appellate court and “the court should not
exercise that discretion unless the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Id.
While DOHSA plainly provides admiralty jurisdiction in this
case,1 and the failure to sustain jurisidiction based on DOHSA
affected Delgado’s substantial rights, the error does not seriously
impact the fairness, integrity, or public reputation of the
judicial proceeding. We therefore decline to exercise our
1
See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 218 (1986)
(“[A]dmiralty jurisdiction is expressly provided under DOHSA [where] the
accidental death[] occur[s] beyond a marine league from [the] shore [of the
United States].”); Jacobs v. N. King Shipping Co., Ltd., 180 F.3d 713, 717-18
(5th Cir. 1999) (“DOHSA created a remedy in admiralty for deaths occurring more
than three miles from shore as a result of wrongful act, neglect, or default.”).
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discretion to reverse the district court’s ruling.
IV.
For the reasons stated above we affirm the district court’s
order dismissing the claims against Reef for lack of personal
jurisdiction.
AFFIRMED.
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