The U.S. Court of Appeals for the Fifth Circuit has granted a petition, filed by CCL, for rehearing en banc on the application of Federal Rule of Civil Procedure 4(k)(2) to a foreign defendant in an admiralty case. 

     The survivors and family of U.S. Navy seamen had sued a Japanese corporation over a collision at sea that killed seven sailors on a the U.S.S. Fitzgerald and injured forty others. A federal court in New Orleans had thrown the case out, holding that personal jurisdiction was not available in the U.S. courts over the defendant because it is not "at home" in the U.S. On appeal, CCL's Robert S. Peck argued that the decision effectively rendered the rule, approved for precisely these situations, unconstitutional in all its applications because it also requires that any defendant subject to the rule not be within the personal jurisdictional reach of any state court. That provision cancels out the one imposed by the district court as a matter of due process, effectively voiding the rule, which was promulgated at the request of the U.S. Supreme Court.

     A panel of three judges in the Fifth Circuit agreed with Peck's argument, but said that their hands were tied because of a 2016 precedent in the circuit that they believed was wrongly decided. They urged the entire Fifth Circuit to take up the matter in order to overrule the precedent. Peck's petition for rehearing en banc provided the vehicle for that rehearing, while the Japanese defendant opposed rehearing and insisted that the prior precedent was correctly decided. Today's order vacated the panel's decision, set a new briefing schedule, and put the case on the September oral argument calendar.