HAZEL CREDLE as Administratrix

of the Estate of Frankie

Elijah Credle, et al., 

Plaintiffs,

v.

UNITED STATES OF AMERICA and

SCIENCE SYSTEMS AND

APPLICATIONS, INC.,

Defendants.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

HONORABLE JOSEPH E. IRENAS

CIVIL ACTION NO. 11-1667

(JEI/KMW)

OPINION

APPEARANCES:

FRIEDMAN & JAMES, LLP

Andrew V. Buchsbaum

Bernard Friedman

200 Craig Road

Manalapan, NJ 07726

and

TRAUTMANN & ASSOCIATES, LLC

Gregg D. Trautmann

262 East Main Street

Rockaway, NJ 07866

Counsel for Plaintiffs

U.S. DEPARTMENT OF JUSTICE

CIVIL DIVISION

Jill Dahlman Rosa

PO Box 14721

Washington, DC 2044

and

U.S. DEPARTMENT OF JUSTICE

Sarah Susan Keast

1425 New York Avenue NW

Suite 10100

Washington, DC 20009

Counsel for Defendant United States of America

CROWELL & MORING LLP

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Mark Sigmund Lichtenstein

590 Madison Avenue

20 Floor th

New York, NY 10022

Counsel for Defendant Science Systems and Applications, Inc.

IRENAS, Senior District Judge:

Presently before the Court is Defendant Science Systems and

Applications, Inc.’s (“Science”) Motion to Dismiss for lack of

personal jurisdiction and failure to state a claim. (Dkt. No. 1

21) For the following reasons, the Court will deny the Motion to

Dismiss for lack of personal jurisdiction, dismiss the Motion to

Dismiss for failure to state a claim and transfer the case to the

District of Maryland.

I.

Plaintiffs are administratrices of four deceased crew

members of the F/V Lady Mary who perished when the vessel sunk

off the coast of Cape May, New Jersey on March 24, 2009. The

vessel was equipped with a 406-MHz emergency position-indicating

radio beacon (“Beacon”), which is a tracking transmitter that

aids in the detection of distressed ships. (Compl. ¶ 18) 

Each Beacon is assigned a personalized fifteen character

hex-ID, which aids in locating and contacting the vessel. (Id.

at ¶ 20) Once activated, the Beacon sends a signal that is

Plaintiffs have invoked this Court’s admiralty jurisdiction. See 28

1

U.S.C. § 1333; Fed.R.Civ.P. 9(h)(1).

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detected by satellites. The National Oceanic and Atmospheric

Administration (“NOAA”) monitors these signals and alerts the

United States Coast Guard of ships in need of emergency

assistance. (Id. at ¶ 21)

NOAA contracted with Science to register and enter each

Beacon’s hex-ID into NOAA’s database. (Id.) Plaintiffs allege

that in January 2007, one of Science’s clerks entered the F/V

Lady Mary Beacon’s hex-ID incorrectly. (Id. at ¶ 22) As a

result, on the day the vessel began to sink, the computer could

not immediately identify the location of the F/V Lady Mary to

send emergency assistance. (Id. at ¶ 23)

To locate the F/V Lady Mary, the NOAA had to wait for a lowearth orbiting satellite to pass over the vessel. (Id. at ¶ 24) 

This delay caused the Coast Guard to receive the emergency

assistance request eighty-seven minutes later than if the

technology had operated correctly. (Id. at ¶ 25) By the time

the Coast Guard arrived, two crew members were still alive, only

one of whom survived. (Id.)

Plaintiffs allege causes of action for negligence, breach of

contract and wrongful death. (See Compl. Counts I-V) Defendant

Science moves this Court to dismiss pursuant to 12(b)(2) for lack

of personal jurisdiction and 12(b)(6) for failure to state a

claim. (See Dkt. No. 21)

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II.

Plaintiff bears the burden of presenting evidence

establishing a prima facie case of personal jurisdiction over

each defendant. Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93,

94 (3d Cir. 2004). “‘[P]laintiff must sustain its burden of

proof in establishing jurisdictional facts through sworn

affidavits and competent evidence. . . At no point may a

plaintiff rely on the bare pleadings alone in order to withstand

a defendant’s Rule 12(b)(2) motion to dismiss for lack of

personal jurisdiction. Once the motion is made, plaintiff must

respond with actual proofs, not mere allegations.’” Machulsky v.

Hall, 210 F. Supp. 2d 531, 537 (D.N.J. 2002) (quoting Patterson

v. Fed. Bureau of Investigation, 893 F.2d 595, 603-04 (3d Cir.

1990)). In the absence of an evidentiary hearing, only a prima

facie showing is required and plaintiff is “entitled to have its

allegations taken as true and all factual disputes drawn in its

favor.” Miller Yacht Sales, 384 F. 3d at 97. 

The framework for analyzing jurisdiction over the parties is

well-known. A federal court sitting in New Jersey has

jurisdiction over the parties to the extent provided under New

Jersey state law. See Fed. R. Civ. P. 4(e). New Jersey courts

may exercise personal jurisdiction to the extent permitted by the

United States Constitution. Miller Yacht Sales, 384 F. 3d at 96. 

Due process requires that each defendant have “minimum

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contacts” with the forum state (in this case New Jersey) and that

the Court’s exercise of jurisdiction over the parties comports

with “traditional notions of fair play and substantial justice.” 

Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). “Minimum

contacts must have a basis in ‘some act by which the defendant

purposefully avails itself of the privilege of conducting

activities within the forum state, thus invoking the benefits and

protection of its laws.” Asahi Metal Indust. Co. v. Sup. Ct. of

Cal., 480 U.S. 102, 109 (1987) (quoting Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 475 (1985)).

Within this framework, personal jurisdiction may be examined

under two distinct theories: general and specific jurisdiction.

See Remick v. Manfredy, 238 F. 3d 248, 255 (3d Cir. 2001).

“General jurisdiction is based upon the defendant’s continuous

and systematic contacts with the forum and exists even if the

plaintiff’s cause of action arises from the defendant’s non-forum

related activities. In contrast, specific jurisdiction is

present only if the plaintiff’s cause of action arises out of

defendant’s forum-related activities, such that the defendant

should reasonably anticipate being haled into court in that

forum.” Id. at 255 (citations omitted). “A ‘relationship among

the defendant, the forum, and the litigation’ is the essential

foundation” of specific jurisdiction. Helicopteros Nacionales de

Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984) (quoting Shaffer

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v. Heitner, 433 U.S. 186, 204 (1977)). 

If it is determined that a defendant has purposefully

established minimum contacts with the forum state, then it

remains to be determined if exercise of specific jurisdiction

would be reasonable and “comport with notions of fair play and

substantial justice.” Asahi Metal, 480 U.S. at 113. This

determination requires evaluation of several factors, including

the burden on the defendant, the interest of the forum state in

resolving the dispute, and the plaintiff’s interest in obtaining

relief. Id.

A.

First, Plaintiffs raise a waiver argument. Unlike subject

matter jurisdiction, a defendant can waive the right to challenge

personal jurisdiction. See Fed.R.Civ.P. 12(h). Although Science

has abided by the text of the Fed.R.Civ.P. 12(h), Plaintiffs

argue that the Court should nonetheless deem Science to have

waived the personal jurisdiction defense. Plaintiffs rely

primarily on Bel-ray Co. v. Chermrite Ltd., 181 F.3d 435 (3d Cir.

1999). There, Defendants asked for affirmative relief before

raising personal jurisdiction defenses. See id. at 443-44. That

case, however, does not resemble this case. 

Here, Science was served on June 6, 2011. (See Dkt. No. 5) 

On August 12, 2011, Science filed the instant Motion to Dismiss

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having only previously filed motions to appear pro hac vice (Dkt.

Nos. 18-20) and request time extensions to plead. (Dkt. Nos. 4 &

10) These administrative motions differ significantly from the

affirmative relief defendants sought in Bel-ray. Defendants

cannot be deemed to have waived their right to challenge personal

jurisdiction in this case.

B.

General jurisdiction requires continuous and systematic

contacts with the State of New Jersey. Defendant’s contacts fall

well short of this standard. Science is not incorporated or

licensed to do business in New Jersey. Nor does Science have a

place of business in New Jersey. Science does not manufacture or

sell the Beacons or otherwise distribute a product in New Jersey. 

Indeed, from the investigation testimony of Daniel Karlson of

NOAA, it appears that NOAA initiates all contact with Beacon

owners for the purposes of registration. (See Pls.’ Decl. Ex. 2,

788:18-20, Dkt. No. 26) Although Science may receive information

from registrants, NOAA sends correspondence including requests

for registration and compliance decals into New Jersey. (Id.) 

In this regard, Science appears to merely do data entry. Science

cannot be said to have continuous and systematic contact with New

Jersey. 

Nonetheless, Plaintiffs argue that Science’s contractual

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relationship with NOAA, a federal government entity, should

transfer NOAA’s contacts with New Jersey to Science. However,

this argument was specifically rejected in Calder v. Jones. 465

U.S. U.S. 783, 790 (1984) (holding that a person’s contacts “are

not to be judged according to their employer’s activities there .

. . . Each defendant’s contacts with the forum State must be

assessed individually.”). Accordingly, this Court does not have

general jurisdiction over Science.

C.

The Court now turns to specific jurisdiction. In O’Connor

v. Sandy Lane Hotel Co., Ltd, the Third Circuit set out the

three-step framework for analyzing specific jurisdiction: (1)

whether the defendant purposefully directed its activities at the

forum; (2) whether the litigation arises out of or relates to at

least one of the contacts; and (3) whether the exercise of

jurisdiction otherwise comports with traditional notions of fair

play and substantial justice. 496 F.3d 312, 317 (3d Cir. 2007).

Here, Plaintiffs have not established the first element -

that defendant purposefully directed its activities at New

Jersey. Plaintiffs argue that “[b]y contracting to perform full

operational monitoring and maintenance of every registered beacon

in the United States, [Science] deliberately chose to profit from

the government’s interaction with citizen of New Jersey.” (Pls.’

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Br. 19, Dkt. No. 25) However, the personal jurisdiction analysis

does not operate under theories of agency. The contacts of NOAA

cannot be imputed to Science. Accordingly, this Court does not

have specific personal jurisdiction over Science.2

III.

The final issue to consider is whether to transfer this case

to the District of Maryland as Plaintiffs suggest or to dismiss

this case with prejudice as Science urges. “In federal court, 3

venue questions are governed either by 28 U.S.C. § 1404(a) or 28

U.S.C. § 1406. Section 1404(a) provides for the transfer of a

case where both the original and the requested venue are proper. 

Section 1406, on the other hand, applies where the original venue

is improper and provides for either transfer or dismissal of the

case.” Jumara v. State Farm Ins. Co., 55 F.3d 873, 878 (3d Cir.

1995).

Most civil actions claims in federal court are governed by

28 U.S.C. § 1391. However, “[a]n admiralty or maritime claim

under Fed.R.Civ.P. 9(h) is not a civil action for the purposes of

28 U.S.C. §§ 1391-1392.” Fed.R.Civ.P. 82. Instead, venue lies

Having determined that this Court lacks personal jurisdiction over

2

Defendant Science, the Court cannot decide Science’s Motion to Dismiss for

failure to state a claim.

Plaintiffs have not filed an official motion to transfer. Rather,

3

almost as an afterthought, they ask to be transferred should they lose the

personal jurisdiction argument.

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wherever a district court has personal jurisdiction over the

defendant. See Sunbelt Corp. v. Noble, Denton & Asociates, Inc.,

5 F.3d 28, 31 n.5 (3d Cir. 1993). If the court lacks personal

jurisdiction then venue is also improper.

Here, the Court lacks personal jurisdiction over Science so

venue is improper. Therefore, the provisions of § 1406(a) apply

to this case. Section 1406(a) provides: “The district court of a

district in which is filed a case laying venue in the wrong

division or district shall dismiss, or if it be in the interest

of justice, transfer such case to any district or division in

which it could have been brought.” 

The interests of justice favor resolving disputes on the

merits. Plaintiffs allege that Science’s negligence caused the

death of several crew members. These serious claims should not

be dismissed with prejudice merely because Plaintiffs erroneously

believed that Science had sufficient contacts with New Jersey. 

Moreover, should this Court refuse to transfer the case,

Plaintiffs would have to litigate against Science in the District

of Maryland and against the United States in this Court, assuming

the statute of limitations would not bar Plaintiffs’ claims

altogether. The interests of justice would not be furthered by

such a result. Moreover, the parties agree that if this case is

to be transferred, then venue properly lies in the District of

Maryland. Accordingly, the Court will transfer this case

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pursuant to 28 U.S.C. § 1406(a) to the District of Maryland. 

IV.

For the foregoing reasons, Defendant Science’s Motion to

Dismiss under 12(b)(2) will be denied and the Motion to Dismiss

under 12(b)(6) will be dismissed. Pursuant to 28 U.S.C. §

1406(a), the Court will transfer this case to the District of

Maryland. An appropriate Order will accompany this Opinion.

Date: 12/14/11 

 /s/ Joseph E. Irenas 

JOSEPH E. IRENAS, S.U.S.D.J.

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