United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS January 5, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _________________________ Clerk No. 03 – 20464 SUMMARY CALENDAR _________________________

R&B FALCON DRILLING (INTERNATIONAL & DEEPWATER), INC.; CLIFFS DRILLING COMPANY,

Plaintiffs - Appellants

v.

THE NOBLE DENTON GROUP; ET AL,

Defendants

THE NOBLE DENTON GROUP; NOBLE DENTON EUROPE, LTD.; NOBLE DENTON AND ASSOCIATES (WLL); NOBLE DENTON & ASSOCIATES, LTD.; NOBLE DENTON QATAR,

Defendants - Appellees.

______________________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (H-01-CV-3751) ______________________________________________________________________________

Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

In this appeal, we review the district court's decision granting Defendants - Appellees’,

1 Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

-1- The Noble Denton Group, Noble Denton Europe, Ltd., Noble Denton and Associates, Noble

Denton & Associates, Ltd., and Noble Denton Qatar (hereinafter collectively, “Noble Denton”),

motion to dismiss pursuant to FED. R. CIV. P. 12(b)(2) for lack of personal jurisdiction. For the

following reasons, we affirm the district court’s decision.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs - Appellants, R&B Falcon Drilling (International & Deepwater), Inc. and Cliffs

Drilling Company (hereinafter collectively, “R&B Cliffs”), build offshore oil and gas wells for oil

and gas exploration. Both companies are incorporated in Delaware with their principal places of

business in Houston, Texas. Noble Denton is a worldwide group of independent but affiliated

companies providing consulting engineers and marine surveyors to the offshore marine industry.

In the summer of 2000, R&B Cliffs wanted to transport one of their rigs from Doha, Qatar

to Salvador, Brazil. They hired Noble Denton Europe to do a “Feasibility Review and Transport

Approval” for the transport of the rig. The purpose of the study was to determine if the rig could

withstand the proposed voyage and to determine the proper vessel for the transport.

Prior to conducting the analysis, Noble Denton sent R&B Cliffs an “Order

Acknowledgments of the Feasibility Review and Transport Approval” which included Noble

Denton Europe’s conditions of business stipulations. The contract included a forum selection

clause stating that all disputes would be resolved in Great Britain.

Noble Denton Europe conducted the analysis from its London office, using calculations

and plans provided by R&B Cliffs and Dockwise, the owner of the proposed transport vessel.

On Noble Denton’s recommendation, R&B Cliffs entered into a voyage charter agreement with

-2- Dockwise and requested that Noble Denton supervise and assist in loading the rig onto the

chartered vessel. Noble Denton Europe utilized the services of Noble Denton Dubai to supervise

the loading.

The rig was loaded and the vessel departed for Brazil on October 17, 2000. Two weeks

into the voyage, the rig was damaged and the vessel was forced to port. R&B Cliffs directed the

vessel to go to Brownsville, Texas to repair the damaged rig. On January 31, 2001, Noble

Denton sent R&B Cliffs an invoice for services rendered in connection with the transport, which

R&B Cliffs disputed.

Unable to resolve the dispute, R&B Cliffs filed this suit, alleging claims against Noble

Denton for negligence, breach of implied warranty, negligent misrepresentation, and breach of

contract. Noble Denton then moved to dismiss the suit pursuant to Rule 12(b)(2), arguing that

the district court lacked personal jurisdiction.

Noble Denton asserted that they lacked sufficient contacts with the state of Texas to

establish specific jurisdiction, and that they lacked the requisite contacts with the United States to

establish general jurisdiction pursuant to FED. R. CIV. P. 4(k)(2). Noble Denton provided

affidavits claiming that each Noble Denton defendant was an independent company operating out

of separate offices, not controlled by any other entity, and with no direct involvement in the daily

operations of the other affiliated companies. The affidavits also claimed that none of the

defendants share a parent company and are not subsidiaries of any larger group.

R&B Cliffs opposed the motion, arguing that Noble Denton had purposefully availed

themselves of the benefits of the forum state. They argued that by sending the “Feasibility Review

and Transport Approval” reports to Houston, Noble Denton had directed a tort toward the forum

-3- state. R&B Cliffs also argued that Noble Denton engaged in continuous and systematic contacts

with Texas sufficient to establish general jurisdiction. These alleged contacts include marketing

directed towards Texas through a worldwide website, and Noble Denton’s affiliation with the

Texas company, Noble Denton Houston. Finally, R&B Cliffs argued that Noble Denton routinely

receives revenue from U.S.-based companies.

The district court granted Noble Denton’s motion to dismiss, determining that R&B Cliffs

failed to establish a prima facie case of jurisdiction. The district court found that all activities

giving rise to the suit occurred in London or the Persian Gulf, and that the fact that the contracts

were faxed to R&B Cliffs in Houston did not, by itself, establish purposeful availment of the

forum sufficient to confer jurisdiction.

The district court also determined that the foreign companies’ maintenance of a passive

website does not give rise to personal jurisdiction, and that the Noble Denton companies were not

so interrelated that one company’s actions could be imputed to another company. Finally, the

district court concluded that R&B Cliffs had not shown Noble Denton conducted regular business

in the U.S. to the extent they were subject to general jurisdiction pursuant to Rule 4(k)(2). R&B

Cliffs timely appealed.

II.

STANDARD OF REVIEW

We review the district court’s dismissal for lack of personal jurisdiction pursuant to FED.

R. CIV. P. 12(b)(2) de novo . Alpine View Co. Ltd. v. Atlas Copco AB,

(5th

Cir. 2000). Because the district court ruled on Noble Denton’s motion without holding an

evidentiary hearing, R&B Cliffs may satisfy their burden by presenting a prima facie case for

-4- jurisdiction. Felch v. Transportes Lar-Mex SA de CV,

(5th Cir. 1996). All

uncontroverted allegations by R&B Cliffs will be accepted as true, and all conflicts between the

parties are resolved in favor of R&B Cliffs. Alpine,

.

III.

PERSONAL JURISDICTION

The Texas long-arm statute authorizes the district court to exercise personal jurisdiction

over a nonresident defendant to the fullest extent allowed by the United States Constitution.

TEX. CIV. PRAC. & REM. CODE ANN. § 17.042 (West 2000); see Wilson v. Belin,

(5th Cir. 1994). Thus, we need only determine whether exercising jurisdiction over

Noble Denton is consistent with the Due Process Clause. Alpine,

. Due process

requirements are met when the defendant has certain minimum contacts with the forum such that

the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

International Shoe Co. v. Washington,

(1945). In evaluating minimum

contacts with the forum, we must determine whether the nonresidents purposefully availed

themselves of the privileges of conducting activities within the forum state, thus invoking the

benefits and protections of its laws. Hanson v. Denckla,

(1958).

To assist in minimum contacts analysis, the Supreme Court has drawn a distinction

between specific and general jurisdiction. See Burger King Corp. v. Rudzewicz,

(1985); Helicopteros Nacionales de Columbia, S.A. v. Hall,

(1984). To establish specific jurisdiction, R&B Cliffs must show that Noble Denton purposefully

directed their activities at residents of the forum, and the litigation must result from activities that

arise out of or relate to Noble Denton’s activities directed at the forum. Burger King, 471 U.S. at

-5- 474; Aviles v. Kunkle,

(5th Cir. 1992). To establish general jurisdiction, R&B

Cliffs must show that Noble Denton’s contacts with the forum are of a continuous and systematic

nature. Helicopteros,

. The district court may exercise personal jurisdiction if

either specific or general jurisdiction is proven. Coats v. Penrod Drilling Corp.,

(5th Cir. 1993).

R&B Cliffs asserts that the district court can assert specific jurisdiction over Noble Denton

because Noble Denton delivered contractual documents to Texas, which R&B Cliffs argues

constitutes a tort directed at the forum state. The district court disagreed, finding that Noble

Denton did not purposefully avail themselves of the benefits and protections of the forum. Noble

Denton did not seek R&B Cliffs’ business in Texas, rather it was R&B Cliffs who approached

Noble Denton in London concerning the transport of the rig. Both the scope of the services

rendered and the fee to be paid were determined in London. The work was performed in London,

Qatar, and the United Arab Emirates; no work was performed in Texas.

R&B Cliffs argues that Noble Denton directed tortious conduct towards Texas by sending

the contractual documents, but this argument is unavailing. An exchange of communications

between two parties, one of whom is located in the forum state, in furtherance of a contract, will

not generally constitute purposeful contact with the forum state for purposes of jurisdiction. See

Holt Oil & Gas Corp. v. Harvey,

(5th Cir. 1986); Coldwell Realty Investments

v. Triple T Inns,

(5th Cir. 1986). The district court was correct in its

determination that R&B Cliffs failed to show sufficient contacts with the forum to establish

specific jurisdiction.

R&B Cliffs’ alternative argument is that the district court erred in determining that it could

-6- not exercise general jurisdiction over Noble Denton. They assert that Noble Denton has marketed

its services in Texas through a website and have maintained an ongoing business relationship with

them over the course of twenty years. However, the maintenance of a passive website for

advertising purposes does not subject a foreign company to a forum’s jurisdiction absent

additional contacts. See Mink v. AAA Development LLC,

(5th Cir. 1999).

Noble Denton does not directly market sales efforts to Texas-based companies, they only derive a

small portion of their revenues from Texas-based companies, and visits by its employees to the

U.S. were rare. The district court was correct in determining that R&B Cliffs failed to show

continuous and systematic contacts with the forum so as to give rise to general jurisdiction.

Finally, R&B Cliffs contends that the district court erred in failing to find jurisdiction

under Rule 4(k)(2), which allows for jurisdiction over foreign defendants with sufficient contacts

with the U.S. as a whole, though not subject to the jurisdiction of any state. See World Tanker

Carriers Corp. v. M/V YA MAWLAYA,

(5th Cir. 1996). R&B Cliffs argues

that Noble Denton’s business with them over the past twenty years is sufficient contact to

establish jurisdiction under this rule. However, Noble Denton is not a single corporate entity, and

R&B Cliffs’ business deals with the various global entities over a number of years cannot be

combined to impute sufficient contacts to each of the defendants. None of the named defendants

maintains an office or accounts in the United States. Revenues from U.S.-based companies

comprised only three percent of Noble Denton Europe’s annual revenues in 2001, and the

remaining defendants received no revenue from U.S.-based companies in the last five years. The

district court was correct in declining to exercise jurisdiction over Noble Denton pursuant to Rule

4(k)(2).

-7- IV.

CONCLUSION

For the foregoing reasons, we affirm the district court’s decision.

-8-