For the reasons stated in the Opinion and Order issued on this same date, the complaint filed against Prudential Lines, Inc. is hereby DISMISSED.
SO ORDERED AND ADJUDGED.
OPINION AND ORDER
This is an action in admiralty and under the Jones Act, 46 USC Section 688, by a former seaman who seeks redress for an asbestosis condition he allegedly contracted while working aboard the SS GULF DEER, a Gulf Trading Co. (Gulf) vessel. A prior ruling allowed plaintiff to amend his complaint to include as damages the loss of society of his spouse and son and to allege that the action against Gulf was not barred by laches. 576 F. Supp. 1379. Presently before us is third-party defendant Prudential Lines, Inc.'s (Prudential) Motion to Dismiss for Lack of In Personam Jurisdiction and the opposition and replies filed on January 21, 1983 and thereafter. The third-party defendant's basic contention is that it does not have any contacts with this forum and that whatever contacts may be claimed are not related to the cause of action. As its grounds for exerting jurisdiction over Prudential, Gulf advances the novel theory that Prudential committed a tort within Puerto Rico because plaintiff's symptoms of asbestosis became manifest in Puerto Rico. For the reasons that shall be stated, we reject the symptom-manifestation theory in asbestos cases as determinative of situs of a tort for purposes of attaching personal jurisdiction over a tort-feasor.
This action commenced on October 10, 1979 when Felipe Colon sued Gulf for damages resulting from exposure to asbestos while working aboard the SS GULF DEER from 1971 to 1978. Defendant answered on February 26, 1980 and raised the defenses of laches, time limitations and contributory negligence. On June 29, 1981 defendant filed a third-party complaint against Farrell and Prudential which alleged that from 1964 to 1965 while on board the SS EXIRA, a vessel owned by a predecessor corporation of Farrell, and during 1953 while working aboard the SS MOLINE, a vessel owned by Prudential, Colon was exposed to asbestos. It contended that since plaintiff had been exposed to asbestos while working on these ships, Farrell and Prudential should be held liable to him or be ordered to respond in proportion to their contribution to his condition. 1" Prudential replied on August 11, 1982 raising a number of defenses, among them, lack of personal jurisdiction. It did not object to the choice of forum nor is there any indication that inconvenience of the forum was raised as an issue. Prudential's motion to dismiss is limited to lack of in personam jurisdiction. It contains several exhibits which reveal that Prudential has never conducted any activities whatsoever in Puerto Rico. It contends that none of the situations contemplated in Rule 4.7, Rules of Civil Procedure of Puerto Rico, P.R. Laws Ann., Title 32, App. III, are present for it did not commit a tortious act in Puerto Rico, the ship with the alleged unseaworthy condition of exposed asbestos dust never docked or departed from Puerto Rico while plaintiff served as a seaman, it is not alleged that Prudential was engaged in the transportation of passengers or freight from Puerto Rico and none of the other circumstances contained in this subdivision of the Rule are raised in the third-party complaint. Gulf invokes personal jurisdiction on various alternative grounds provided by the Rule. As to Prudential, it argues that the First Circuit has suggested reading the provision in Rule 4.7 which allows jurisdiction to be exercised over nonresidents who have executed "tortious acts within Puerto Rico," as including also those wrongful acts which were committed outside of Puerto Rico but which had their damaging effects in Puerto Rico. See: Mangual v. General Battery Corp., 710 F.2d 15, 19 (1st Cir. 1983). It attempts to bring into the in personam jurisdiction area the theory adopted for asbestos-type injuries that focuses on the period when the symptoms are manifested rather than on the period of exposure to asbestos to fix the point of departure for purposes of insurance coverage and time limitations. Since Colon's symptoms allegedly surfaced while residing in Puerto Rico, Gulf concludes that Prudential committed a tort within Puerto Rico and is amenable to suit.
In arguing their respective jurisdictional positions the parties have overlooked that the due-process-in-personam problem is analyzed in terms of a state's power to summon out of state defendants vis a vis these defendants' Fourteenth Amendment due process rights not to be unjustifiedly subjected to litigate in a certain geographical area. However, this analysis is said to be inapplicable to cases where the subject matter jurisdiction of the federal court is federal law. Terry v. Raymond Intern., Inc., 658 F.2d 398, 401-403 (5th Cir. 1981); Manitowoc Engineering Company v. Terry, cert. den. 456 US 928, 102 S. Ct. 1975, 72 L. Ed. 2d 443; F.T.C. v. Jim Walter Corp., 651 F.2d 251, 255-57 (5th Cir. 1981); Fosen v. United Technologies Corp., 484 F Supp 490, 498 (S.D.N.Y. 1980) aff'd. without op., 633 F.2d 203 (2d Cir. 1980); see gen : 4 Wright & Miller, Federal Practice and Procedure, Sec. 1075, N.26; 2 Moore's Federal Practice, Para. 4.25(7), p. 4-291 N. 30 (2d Ed.) and : Foster, Long-Arm Jurisdiction, 47 FRD 73 (1968). In these situations the consideration is whether the defendant has sufficient contacts with the United States as a nation and not with any particular state or territory within the union. Id. These cases point to the Fifth Amendment rather than to the Fourteenth as the source of any possible Due Process litigation over this country's power to summon beyond its territory, id.2 and Volkswagen Interamericana, S.A. v. Rohlsen, 360 F.2d 437, 440 N. 3 (1st Cir. 1966) cert. denied 385 US 919, 17 L. Ed. 2d 143, 87 S. Ct. 230. Recently, our Circuit addressed the issue. In discussing the difference between the concepts of personal jurisdiction and venue, it said:
At the outset it must be understood that 'minimum contacts' with a particular district or state for purposes of personal jurisdiction is not a limitation imposed on the federal courts in a federal question case by due process concerns. The Constitution does not require the federal districts to follow state boundaries. Driver v. Helms, 577 F.2d 147, 156 (1st Cir. 1978); rev'd on other grounds, Stafford v. Briggs, 444 US 527, 100 S. Ct. 774, 63 L. Ed. 2d 1 (1980) (reversed on statutory construction, constitutional issue not reached). The limitation is imposed by the Federal Rules of Civil Procedure. It is clear that Congress can provide for nationwide service of process in federal court for federal question cases without falling short of the requirements of due process.
Johnson Creative Arts v. Wool Masters, 743 F.2d 947, 950 (1st Cir. 1984) (footnotes and citations omitted). In discussing the meaning of this distinction the court commented on the purposes behind the minimum contacts requirement:
The minimum contacts concept is grounded upon notions of territorial limitations on the power of the courts of a particular state to subject a nonresident to its jurisdiction and thereby infringe upon that person's individual liberty interest. See Insurance Corp. v. Compagnie des Bauxites, 456 U.S. 694, 702 n. 10, 102 S. Ct. 2099, 2104 n. 10, 72 L. Ed. 2d 492 (1982). The traditional, historical basis of personal jurisdiction was the court's de facto power over the defendant's person. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945). If a defendant was present within the territory of the sovereign represented by the court, the court could issue a writ to the sheriff, directing him to take the body of the defendant and keep him in custody to answer the plaintiff's charges. See id.
In International Shoe, the Court determined that since the capias ad respondendum has given way to personal service of summons or other form of notice, even a person not present within the territory of the forum may be subjected to a judgment in personam if he has such contacts with the forum that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice. ' Id. This allows a court validly to effect extraterritorial service. If a person is served within the territory of the sovereign represented by the issuing court, there is no question that maintenance of the suit against him will not offend traditional notions of fairness.
Id. at n. 3. In Trans-Asiatic Oil Ltd. S.A. v. Apex Oil Co., 743 F.2d 956 (1st Cir. 1984) the court permitted the exercise of in personam jurisdiction over a defendant based on the garnishment of a debt in Puerto Rico, 3" regardless of whether defendant had any minimum contacts with that forum. It held that the minimum contacts analysis was inapplicable to federal courts sitting in admiralty for "federal jurisdiction being national in scope, due process only requires sufficient contacts within the United States as a whole . . . the limits on a state's power over nonresident defendants do not apply to a federal court sitting in admiralty in that state. . . ." Trans-Asiatic at 959. The court considered that Rule B of the Supplemental Rules for Certain Admiralty and Maritime Claims provided the necessary mechanism to serve process and attach personal jurisdiction regardless of the presence of contacts with the forum if the defendant had sufficient contacts with any part of the United States. Id. See also: Grand Bahama Pet. Co., Ltd. v. Canadian Transp., 450 F Supp 447, 451-53 (W.D. Wash. 1978) and Filia Comp. Nav. v. Petroship, 1982 AMC 1217, 1223-25 (S.D.N.Y. 1982) but see: Haag v. Kitson & Co., 1982 AMC 188 (D. Mass.) aff'd., 647 F.2d 160 (1st Cir. 1981) (quasi in rem attachment in trustee process procedure could not impart jurisdiction over Bermuda company for maritime injury near that forum where company did not have any significant contacts with Mass.) Both Trans- Asiatic and Johnson Creative point to considerations of proper venue as the true focal point in this type of situation rather than to an inquiry on whether personal jurisdiction lies. 4" Trans-Asiatic at 959 and Johnson Creative at 951. In Johnson Creative it was suggested that the propriety of venue according to the doing-business criteria of the general venue statute, 28 USC Section 1391, be measured by the Commerce Clause's constitutional limitation on the states' power to require business licenses rather than by the Due Process Clause minimum contacts in personam jurisdiction analysis. Id. at 954-955.
In the present case the issue of improper venue has not been raised. Given the waivable characteristics of this defense, see: Leroy v. Great Western United Corp., 443 US 173, 180, 61 L. Ed. 2d 464, 99 S. Ct. 2710 (1979); Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 US 165, 168, 84 L. Ed. 167, 60 S. Ct. 153 (1939), and the lack of any minimum contact requirement for personal jurisdiction in cases brought under federal question subject matter jurisdiction, one would have to conclude, as suggested by Gulf, 5" that personal jurisdiction exists over third-party defendants and that venue is proper in this district or, if it is not, that the parties have waived objecting to it. See: Concession Consultants, Inc. v Mirisch, 355 F.2d 369, 371 (2d Cir. 1966). However, a closer reading of the Trans-Asiatic and Johnson Creative cases reveals an important caveat which does not make the in personam analysis irrelevant.
These cases, as well as those from other circuits which have signaled out this interesting distinction in the minimum contacts analysis, 6" have circumscribed the power of nationwide personal jurisdiction to a specific congressional mandate or rule to exercise such power through a mechanism to serve process and attach personal jurisdiction over a defendant. See instances cited in DeJames v. Magnificence Carriers, Inc., 491 F Supp 1276, 1282-83 (D.N.J. 1980) aff'd. 654 F.2d 280 (3rd Cir. 1981) and in Terry v. Raymond Intern., Inc., 658 F.2d 398, 402 (5th Cir. Unit A 1981). In F.T.C. v. Jim Walter Corp., 651 F.2d 251 (5th Cir. Unit A 1981) it was held that Section 9 of the Federal Trade Comm. Act provided the grounds for the exercise of such power through an implicit authorization for nationwide service of process. Likewise, in Fitzsimmons v. Barton, 589 F.2d 330 (7th Cir. 1979) Section 78aa of the Securities and Exchange Act was used as the source to effectuate in personam jurisdiction through nationwide service whereas in Trans-Asiatic v. Apex Oil, this power was exercised through the quasi in rem attachment provided by Rule B1 of the Supplemental Admiralty Rules. On the other hand, it was held in Central Operating Co. v. Utility Workers of America, 491 F.2d 245, 249-50 (4th Cir. 1974) that the Labor Management Relations Act did not provide for nationwide service of process and in Bernard v. Richter's Jewelry Co., 53 FRD 606, 607-8 (S.D.N.Y. 1971) the Truth in Lending Act was interpreted as not providing for nationwide service. See also: Marsh v. Kitchen, 480 F.2d 1270, 1273 n.8 (no nationwide service provided for Bivens type action) Safeguard Mutual Insurance Company v. Maxwell, 53 FRD 116, 118 (E.D. Penn. 1971) (Civil Rights Act's silence on this matter interpreted as supporting conclusion that no nationwide process was provided by that law). The fact that federal courts may have the jurisdiction to summon any nonresident with sufficient contacts with the United States to a particular district does not mean that federal courts have unfettered discretion to dispatch their marshals to all corners of the nation to serve process on any defendant they see fit. The instances in several federal laws where Congress has specifically indicated that process could be had nationwide as well as the geographical restrictions the Supreme Court has deemed proper for lower federal courts to follow, through the requirements of the Federal Rules of Civil Procedure it has promulgated, 7" are adequate grounds to support the conclusion that we cannot exercise nationwide personal jurisdiction unless Congress, or the Supreme Court, grants the authority to implement this jurisdictional power. See: Burstein v. State Bar of California, 693 F.2d 511, 514-517 (5th Cir. 1982); Banks v. Sheppard, 435 F.2d 1218, 1219 (9th Cir. 1971); Norris v. State of Georgia, 522 F.2d 1006, 1010 (4th Cir. 1975). 8"
In the admiralty case before us, we have found no federal statutory authority for nationwide service of process. See: DeJames, 491 F Supp at 1284; Gutierrez v. Raymond Intern., Inc., 484 F Supp 241, 244 (S.D. Tex. 1979). Aside from the quasi-in-rem attachment provision of Rule B and the special service provided in section (2) of that Rule, the only other alternative authority to serve process would be Rule 4 Fed. R. Civ. P. 9"
Section (e) of this Rule provides that:
Whenever a statute of the United States or an order of the court thereunder provides for service of summons . . . upon a party not an inhabitant of or found within the state in which the district court is held, service may be made under the circumstances and in the manner prescribed by the statute or order, or, if there is no provision therein prescribing the manner of service, in a manner stated in this rule. Whenever a statute or rule of court of the state in which the district court is held provides (1) for service of a summons . . . upon a party not an inhabitant of or found within the state, . . . service may . . . be made under the circumstances and in the manner prescribed in the statute or rule,
Gulf relies upon this rule to bring Prudential to the action. It is in this context, when Rule 4(e)'s borrowed state service is used to hale a litigant into federal court, that the minimum contacts analysis is pertinent to determine whether the extraterritorial service was performed correctly and within the due process restrictions on the states' summoning power. The general criteria developed in the non-federal question context is useful and applicable to this particular situation. 10" See: Johnson Creative, 743 F.2d at 950; Burstein, 693 F.2d at 517; DeJames, 654 F.2d at 283; Black v. Acme Markets, Inc., 564 F.2d 681 at 685 (5th Cir. 1977); Hartley v. Sioux City and New Orleans Barge Lines, Inc., 379 F.2d 354, 356 (3rd Cir. 1967); Bamford v. Hobbs, 569 F Supp at 167; DeJames, 491 F Supp at 1283; Gutierrez v. Raymond Intern., Inc., 484 F Supp 241, 244 (S.D. Tex. 1979). As indicated in DeJames v. Magnificence Carriers, Inc.:
The United States has by the enactment of the Federal Rules of Civil Procedure imposed restrictions upon the exercise of personal jurisdiction by its courts. One such restriction . . . is that imposed by Rule 4(e), which provides that when substituted service is made pursuant to a state's long-arm statute, the service be made 'under the circumstances and in the manner prescribed in the statute. ' Fed. R. Civ. P. 4(e)(2). That portion of the Rule has been interpreted to mean that service under a valid state long-arm statute in a federal court is only possible in those situations where the in-state activities of the defendant would be sufficient to invoke the long-arm statute had the defendant been sued in state court. . . . Thus, where service of process is effected by means of a state statute, a federal court is forced to look to the state in which the district is located to determine whether jurisdiction may be asserted over an out-of-state defendant.
1. Underlying this postulate is the until-now-unchallenged assumption that asbestosis does not manifest its symptoms until after a considerable time after initial exposure and that the present disease was the result of the brief exposure claimed. See: Ins. Co. North America vs Forty-Eight Insulations, 633 F.2d 1212 (6th Cir. 1980), reh. granted in part, clarified 657 F.2d 814 (6th Cir. 1981); cert. denied 454 US 1109, 102 S. Ct. 686, 70 L. Ed. 2d 650. At this moment it is not necessary to rule on the correctness of these assumptions.
2. Any summoning procedure is, of course, subject to other Due Process Clause restrictions related to adequate notice. See: Leasco Data Processing Equipment Corp. v Maxwell, 468 F.2d 1326, 1340 (2d Cir. 1972). Such challenges, however, have not been raised in the case before us.
3. An amount of money owed to defendant by a Puerto Rican public corporation was attached pursuant to Rule B of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure.
4. The potentially inequitable situation confronted by third-party defendants in federal question cases who may be precluded from challenging the venue of the main action or of the one against them and who can only question the convenience of the forum as part of the considerations to be taken in order to determine if the third-party action is permitted, see gen.: 6 Wright and Miller, Federal Practice and Procedure, Section 1445, pp. 240-245, was not considered by the recent First Circuit cases discussed above. Given the liberality in permitting third-party actions, when the potential third-party defendant is finally notified and can voice its objections to the previous ruling because the forum is inconvenient, the objections may be merely perfunctory. In addition, the determination of which standard to be applied when the action is based on federal question jurisdiction against some defendants and on diversity against others was not considered either. It is interesting to note, however, the approach taken to determine whether there was personal jurisdiction over an insurer third-party defendant brought pursuant to Puerto Rico's direct action statute against insurers (P.R. Laws Ann., Title 26 Section 2003) when the main action was based on federal question jurisdiction. See: Comm. of Puerto Rico v. SS Zoe Colocotroni, 628 F.2d 652, 667, (1st Cir. 1980), cert. denied 450 US 912, 67 L. Ed. 2d 336, 101 S. Ct. 1350 (1981); Morales v. Puerto Rico Marine Management, Inc., 474 F Supp 1172 (DPR 1979). Our conclusion today does not require that we direct our attention to these inquiries. They are pointed out as food for thought.
5. Gulf indicated offhandedly in its memorandum in opposition to the motion to dismiss that venue was proper in Puerto Rico given the Jones Act venue statute, 46 USC Section 688. In view of our analysis, we need not determine whether venue is proper in this district court under that statute or under any other statute or standard, i.e., 28 USC Section 1391 (general venue statute) Tramp Oil and M arine, Ltd. v. M/V Mermaid I, 743 F.2d 48 (1st Cir. 1984) (forum nonconveniens) and see: Pure Oil Company v. Suarez, 384 US 202, 203-207, 16 L. Ed. 2d 474, 86 S. Ct. 1394 (1966) (applicability of venue statutes to admiralty).
6. The theory adopted by our Circuit and other circuits has met some detractors see: DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 293 (3rd Cir. 1981) cert. denied 454 US 1085, 70 L. Ed. 2d 620, 102 S. Ct. 642 (Gibbons, dissenting); Ingersoll Milling Machine Co. v. J.E. Bernard & Co., 508 F Supp 907, 910 n.4 (N.D. Ill., 1981) and the discussion in Handley v. Indiana & Michigan Elec. Co., 732 F.2d 1265, 1268-70 (6th Cir. 1984). Other courts have merely noticed the distinct approach but have proceeded with the traditional minimum contact analysis. See: Dunn v. Southern Charters, Inc., 506 F Supp 564, 566 (E.D.N.Y. 1981). Although it is tempting to adopt this approach, we believe it best to first pinpoint the subject matter jurisdiction to see which personal jurisdiction analysis is used in order to prevent the possibility of confusion with other forms of service provided by federal law which mention similar doing business concepts, i.e., Admiralty Rule B, but which may require a different analysis. See: Cobelfret-Cie Belge v. Samick Lines Co., Ltd. 542 F. Supp 29, 31 (W.D. Wash. 1982).
7. For example, the 100 mile territorial limit of Rule 4(f) which, as a tribute to the argument that federal district courts are not bound by state boundaries, may in some districts provide for service outside of the state lines.
8. It should be noted that some authorities have indicated that the inclusion of the word "thereunder" in Rule 4(e)'s amendment of 1963 was to make certain that the language in that section would not be interpreted to sustain the issuance of summons based merely on an order by the court without reference to any statutory or rule basis. See : 4, Wright and Miller, Federal Practice and Procedure, Section 1117, p. 482.
9. Under this analysis it follows that in federal question cases service could be made upon a non-foreign defendant by using any of the forms of service provided by Rule 4 without regard to the existence of sufficient minimum contacts with the forum. See: Johnson Creative, 743 F.2d at 950 n.3 and DeJames, 491 F Supp at 1284. Thus a defendant who was merely passing through the territorial jurisdiction might be served. Although this may induce some litigants to participate in the type of "cat and mouse" jurisdiction by attachment activity that the Due Process Clause contacts analysis indirectly curtailed, it is not within our province to rearrange the rule to accommodate this doctrine.
10. We decline to follow the view that since the Fifth Amendment Due Process limitations apply to federal question personal jurisdiction determinations, a different, ill-defined and, apparently venue-like, concept of fairness should be applied. See: Handley v. Indiana & Michigan Elec. Co., 732 F.2d 1265, 1271 (6th Cir. 1984) "whether the . . . assertion of jurisdiction unfairly burdened [defendant] with the requirement of litigating in an inconvenient forum." Id. at 1271); see also id. dissenting opinion by Krupanski, J. at 1272. We see no discrepancies in the Fifth Circuit cases, see: Bamford v. Hobbs, 569 F Supp 160, 167 (S.D. Tex. 1983) if one adheres to the notion that Congress or the Supreme Court have the authority to limit the nationwide personal jurisdiction of federal courts through the manner process may be served and that we are compelled to follow such strictures.
11. Said section states: The Supreme Court shall adopt for the courts rules of evidence and of civil and criminal procedure which shall not abridge, enlarge or modify the substantive rights of the parties. The rules thus adopted shall be submitted to the Legislative Assembly at the beginning of its next regular session and shall not go into effect until sixty days after the close of said session, unless disapproved by the Legislative Assembly. . . .
12. If Perkins had been a federal case based on federal question and there had been sufficient contacts with the United States, defendant could have been served through other means provided by Rule 4 Fed. R. Civ. P. for in-state service another example of why the distinction in the personal jurisdiction analysis is necessary.
13. The pertinent part of that section reads: "executes by himself or through his agent tortious acts within Puerto Rico."