The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On June 16, 2005, Plaintiffs filed a Complaint against Atlantic Ro-Ro Carriers, Inc. ("Atlantic"), CIS Navigation Inc., Lumar (Odessa) S.A., and Lumar, S.A. Complaint ("Compl.") at 1. Plaintiff Victorija Porina and five other Plaintiffs bring this action as the personal representatives of six seamen who drowned in the Baltic Sea on May 10, 2004. On August 23, 2005, the action was discontinued against Atlantic Ro-Ro Carriers and CIS Navigation, pursuant to a Stipulation of Discontinuance with Prejudice. On September 22, 2005, Plaintiffs filed a motion to amend their complaint to name Marward Shipping Company, Limited ("Marward") as the sole Defendant. Upon consent of the Defendant, the motion was granted. On November 14, 2005, Defendant Marward moved to dismiss the Complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure (Fed. R. Civ. P.) or, in the alternative, on the grounds of forum non conveniens. For the following reasons, Defendant's motion to dismiss for lack of personal jurisdiction is granted.
The Complaint alleges that the fishing vessel "Astrida" was hit and sunk by M/V Salvador during the course of M/V Salvador's regularly-scheduled cargo service between United States ports and Port St. Petersburg, Russia, causing the death of the six seamen. M/V Salvador, owned by Defendant Marward, was transporting cargo from Port Baltimore, Maryland to Port St. Petersburg, Russia. Plaintiffs' Memorandum of Law in Opposition to the Motion to Dismiss of Defendant Marward Shipping Co., Ltd. ("Pl. Mem. in Opp.") at 1. At the time of the alleged collision, the M/V Salvador was sailing pursuant to a charter dated September 20, 2002 between Florani Shipping Co. Ltd., Cyprus ("Florani") as owner and Ambery Maritime Limited, Valleta Malta ("Ambery") as charterer "from the time of vessel's direct extension of present period for worldwide trading in Charterers' option via good, safe berth(s)/good, safe port(s), intention: U.S. Gulf, Caribbean Sea, U.S. East Coast/Canada, North Continent, United Kingdom and Baltic ports including Gulf of Finland and St. Petersburg, Russia."*fn1 Charter at 1.
On March 29, 2004, Marward purchased the M/V Salvador from Florani. Pl. Mem. in Opp. at 1. On May 12, 2004, Marward changed the vessel's name to M/V Vladimir. Id. Marward was incorporated under the laws of Cyprus and has its sole place of business in Limassol, Cyprus. Declaration of Claudio Cuss in Support of Motion to Dismiss Amended Complaint ("Cuss Decl."), dated November 1, 2005, ¶ 3. Marward became owner of the M/V Vladimir, a Cypriot-flagged vessel, on March 29, 2004. Id. ¶ 4.
Under Marward's ownership, the M/V Vladimir, while under charter party and at the direction of the charterer, called at Baltimore, Maryland on April 16 and June 2, 2004; at Charleston, South Carolina on June 9, 2004; at Miami, Florida on June 14, 2004; at Houston, Texas on June 18, August 14, October 21, and December 28, 2004; and at Mobile, Alabama on December 19 2004. In 2005, again at the direction of the charterer, the M/V Vladimir called at Mobile, Alabama on March 4, 2005; at Houston, Texas on March 9, May 22, and July 20, 2005; at New Orleans, Louisiana on May 10, 2005; at Galveston, Texas on June 4, 2005; at Newport News, Virginia on July 30, 2005; and at Philadelphia, Pennsylvania on August 17, 2005.*fn2 Id. ¶ 6. Thus, the M/V Vladimir (formerly the M/V Salvador) called at a U.S. port seventeen times while under Marward ownership during 2004 and 2005.
During Marward's ownership, the M/V Vladimir has not called at New York at any time. Id. ¶ 7. Marward is not registered to do business in the state of New York and does not have a general agent or agent for service of process in New York. Id. ¶ 9. Marward has never conducted business in the State of New York and does not maintain an office or mailing, telephone, or telefax facilities or bank account in New York. Id. ¶ 10. Marward has never advertised nor had a customer in the state of New York. Id. ¶ 11. The Master and crew who were on board the M/V Vladimir on or about May 10, 2004 no longer serve on the vessel and are no longer employed by Marward. Id. ¶ 12.*fn3
Plaintiffs assert jurisdiction over Marward as the owner of the M/V Vladimir pursuant to Rule 4(k)(2) of the Federal Rules of Civil Procedure. Rule 4(k)(2) states:
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.
(2006). Plaintiffs claim that the M/V Vladimir was part of a seven-vessel Atlantic line advertised as the only non-stop liner service to Russia from the United States. Affirmation of Paul S. Edelman in Opposition to Marward Shipping Co., Ltd.'s Motion to Dismiss ("Edelman Aff."), dated December 1, 2005, Exhibits ("Exh.") 3 and 4. Plaintiffs assert that between April 2000 and June 2004, the M/V Vladimir docked sixty-four times at nine U.S. ports in seven different states and returned to St. Petersburg twenty-four times. Id., Exh. 8. Plaintiffs also claim that from June 2004 to August 2005, the M/V Vladimir voyaged eighteen [sic] more times to nine U.S. ports, but never again in the course of transporting cargo from U.S. ports through the Baltic Sea to Russia. Id.
Plaintiff argues that based on the movement history of the M/V Vladimir, it is reasonable to infer that when Marward took ownership of the M/V Vladimir subject to the outstanding charter on Marsh 29, 2004, Marward knew and intended its vessel to continue its regularly-scheduled cargo voyages to the destinations of United States ports and Port St. Petersburg. Pl. Mem. in Opp. at 13.
Plaintiffs rely on the Marine Accident Report dated September l6, 2004, Edelman Aff., Exh. 1 at 9, ¶ 8.4, which states that the underwater hull of the Vladimir was inspected in St. Petersburg on May 13, 2004 but that the damage on the hull did not prove a possible collision with the Astrida. Moreover, the Report states that a second inspection request on May 18, 2004 was declined by the Harbor Master of Port St. Petersburg because "inspection of the hull of m/v Valdimir [sic] would cause the vessel's demurrage and losses to the owner since the vessel had already received permission to leave the port, and, therefore, it was offered to the representatives of the MAL [Maritime Administration of Latvia] to perform the inspection at the next port of call." Id. Accordingly, Plaintiffs argue that Marward knew and intended and directed its vessel to continue making its regularly scheduled cargo voyage from Port St. Petersburg (May 12 to May 18, 2004) and U.S. ports (Port Baltimore from June 3 to June 7, 2004 and to other U.S. ports thereafter). Pl. Mem. in Opp. at 14.
In its Reply Memorandum,*fn4 Marward argued that: Plaintiffs have failed to make a prima facie showing that Marward has sufficient contacts with the United States; Marward's United States contacts are insufficient to establish jurisdiction; and that the assertion of Rule 4(k)(2) jurisdiction over the Defendant is unconstitutional. Reply Memorandum of Law on Behalf of Defendant Marward Shipping Co., Ltd. in Support of Motion to Dismiss ("Def. Reply Mem."). Defendants also moved, in the alternative, to dismiss the case on forum non conveniens grounds, arguing that an adequate forum exists in Cyprus. Def. Reply Mem. at 9-10.
Plaintiffs have the burden of establishing that the Court can exercise personal jurisdiction over the Defendant. See, e.g., Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981); Hvide Marine Int'l Inc. v. Employers Ins. of Wausau, 724 F. Supp. 180, 182 (S.D.N.Y. 1989). If jurisdiction is challenged prior to discovery, the Plaintiff may defeat the motion by a good-faith pleading of ...