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April 23, 2003


The opinion of the court was delivered by: Joseph Anderson, Chief Judge, District

The matter before the court is the motion by the defendants Robert Fleming Insurance Brokers Limited and Robert Fleming North America Non-Marine Limited (collectively "Fleming") to dismiss the plaintiffs' complaint for lack of personal jurisdiction. This case was originally before United States District Judge Dennis W. Shedd,*fn1 who denied Fleming's original motion to dismiss. Judge Shedd found that plaintiffs had made a prima facie case for personal jurisdiction, but he bifurcated the issue of personal jurisdiction and allowed discovery on that subject. Fleming has now re-filed its motion to dismiss. However, because the court in this order has considered evidence outside of the pleadings, Fleming's motion is automatically converted into one for summary judgment.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). It is well established that summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inc. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987).

The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). When the defendant is the moving party and the plaintiff has the ultimate burden of proof on an issue, the defendant must identify the parts of the record that demonstrate the plaintiff lacks sufficient evidence. The nonmoving party, here the plaintiff, must then go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

A party "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Therefore, "[m]ere unsupported speculation . . . is not enough to defeat a summary judgment motion." Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).


The court assumes the following from the facts that are on the record, viewing all facts and inferences therefrom in a light most favorable to the non-moving parties.

This action was brought by the plaintiffs against Fleming for negligence in connection with the placement and administration of reinsurance. There are three plaintiffs in this action: Mega Life and Health Insurance ("Mega Life"), Anthem Life Insurance ("Anthem") and Resolution Reinsurance Intermediaries ("Resolution Re"). Anthem and Mega are out-of-state companies, but they are both licensed by the South Carolina Department of Insurance to write health insurance here in South Carolina. Resolution Re is a South Carolina company, and the defendant Fleming is based in London, England.

Anthem provided some medical stop loss insurance polices in 1997 and Mega provided some medical stop loss insurance policies in 1997, 1998, and 1999. Resolution Re is a reinsurance manager and broker. Anthem and Mega Life retained Resolution Re in 1997 to act as their agent in obtaining reinsurance on the above-mentioned medical stop loss policies, which included polices covering insureds located in South Carolina. Resolution Re contacted the defendant about placing reinsurance on Anthem and Mega Life's policies. Fleming placed reinsurance on Anthem and Mega Life with Pan-American Life Insurance company ("Pan-American"). Fleming, a reinsurance broker, provided Anthem and Mega Life (through Resolution Re) with reinsurance agreements signed by Syndicated Underwriters, Inc. ("SUI"), apparently an agent for Pan-American. This reinsurance agreement was effective April 1, 1997, and was to continue until cancelled.

Pan American has now refused to pay reinsurance related to the polices at issue, alleging that SUI was not authorized to bind Pan American to the reinsurance contract and that Fleming had not forwarded reports and information about the agreement to Pan American. Plaintiffs then brought this action against Fleming, alleging that Fleming has breached its contractual and fiduciary duties as the plaintiffs' agent. Defendant Fleming has moved to dismiss the action, asserting that this court has no personal jurisdiction over it.


Once personal jurisdiction is contested, the plaintiff has the burden of showing that jurisdiction is proper. Umbro U.S.A. v. Goner, 825 F. Supp. 738, 739 (D.S.C. 1993). In order to establish jurisdiction over a nonresident defendant, the court must look first to the State's long-arm statute to determine a basis for the exercise of jurisdiction, and second, to federal law to ensure that such an exercise of jurisdiction comports with the parameters of the Due Process Clause of the Fourteenth Amendment. See generally, Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939 (4th Cir. 1994) (detailing the evolution of Constitutional jurisdictional standards). In considering a jurisdictional challenge, the court must construe all pleadings, evidence, and inferences in the light most favorable to the exercise of jurisdiction. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989); Wolf v. Richmond County Hosp. Auth., 745 F.2d 904, 908 (4th Cir. 1984), cert. denied, 474 U.S. 826 (1985).

Section 36-2-803 of the South Carolina Code confers specific jurisdiction over nonresident defendants in seven enumerated instances.*fn2 The South Carolina Supreme Court has interpreted this statute to reach to the limits of due process. See Southern Plastics Co. v. Southern Commerce Bank, 423 S.E.2d 128, 130 (S.C. 1992); Atlantic Soft Drink Co. v. South Carolina Nat'l Bank, 336 S.F.2d 876, 878 (S.C. 1985). Although the South Carolina long-arm statute extends to the limits of due process, the South Carolina courts have nevertheless applied the language of the statute in analyzing personal jurisdiction questions. Aviation Assoc. & Consultants, Inc. v. Jet Time, Inc., 402 S.E.2d 177 (S.C. 1991).

There are two types of personal jurisdiction that can be exercised over a defendant by using the long-arm statute: specific and general. This distinction is important because it is a factor in determining whether the assertion of jurisdiction violates due process, the second part of the analysis. A court can assert specific jurisdiction over a party in the situations designated in S.C. Code Ann. § 36-2-803(1)(a)-(h). If any of these subsections are applicable, then the court has jurisdiction over that party but only for the particular conduct that is delineated in the statute. General jurisdiction subjects a defendant to jurisdiction in South Carolina for any purpose. The general jurisdiction statute is S.C. Code Ann. § 36-2-802: "A court may exercise personal jurisdiction over a person domiciled in, organized under the laws of, doing business, or maintaining his or its principal place of business in, this State as to any cause of action." This court finds that it has both specific and general personal jurisdiction over the defendant.

The court first explains its power to assert specific jurisdiction over the defendant under three different provisions of the ...

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