HOLLAND AMERICA INC. V WARTSILA

Ricardo S. Martinez, District Judge, Presiding

Argued and Submitted

December 7, 2006-Seattle, Washington

Filed May 7, 2007

Before: Betty B. Fletcher, Susan P. Graber, and

M. Margaret McKeown, Circuit Judges.

5063

Opinion by Judge McKeown;

Partial Concurrence and Partial Dissent by Judge B. Fletcher

COUNSEL

Frank Brucculeri and Bradley M. Rose, Kaye, Rose, and Part-

ners, Los Angeles, California, for the plaintiffs-appellants.

Christopher B. Kende and Rodney Q. Fonda, Cozen

O'Connor, Seattle, Washington; and Gerald Zingone, Thelen

Reid Brown Raysman & Steiner, LLP, Washington, D.C., for

the defendants-appellees.

OPINION

McKEOWN, Circuit Judge:

At the heart of this tangled jurisdictional dispute is a simple but unfortunate accident. In 2002, the Wind Song, a Baha- mian cruise ship, was sailing from Papeete, Tahiti, to Hua- hine, Tahiti. A fire broke out during the voyage, and it eventu- ally spread through the ship, destroying the ship entirely. Holland America Cruise Line ("Holland America") and Windstar Sail Cruises ("Windstar") seek to hold defendants Bureau Veritas S.A. ("Bureau Veritas"), Bureau Veritas North America, Inc. ("BVNA"), Bureau Veritas (Canada) Inc. ("BV Canada"), Wrtsil Corporation ("Wrtsil"), and Wrtsil Finland Oy ("Wrtsil Finland"), among others, liable for the loss of the Wind Song. Before the suit can go forward, we must determine whether the United States District Court for the Western District of Washington may exercise jurisdiction over these parties. This interlocutory appeal concerns only that issue. We hold that the Western District of Washington was not the proper forum; we affirm the district court's dis- missal of the Bureau Veritas entities for lack of venue and Wrtsil and Wrtsil Finland for lack of personal jurisdic- tion.

BACKGROUND

The appeal involves multiple parties, both foreign and domestic. The underlying dispute arising from the accident is not before us. Nonetheless, in order to analyze the jurisdic- tional claims, we first identify the parties, put them in context, and summarize the proceedings in the district court.

I. THE PARTIES

Holland America is a Washington corporation that operates passenger sail cruises. It also acts as an agent for some of its subsidiaries, including Windstar, in contracting for services and repairs. Windstar, a Bahamian corporation headquartered in Seattle, Washington, also operates passenger sail cruises and owned the Wind Song, the sunken ship at issue in this appeal.¹

Bureau Veritas is a French classification society which sets standards for the quality and integrity of ships and performs ship surveys to determine compliance with the classification society's rules and regulations, national laws, and interna- tional conventions. BVNA, a separate Delaware corporation, provides classification surveys for vessel owners in the United States, and BV Canada is a Canadian corporation that per- forms similar services. Bureau Veritas surveyed the Wind Song before its launch, and Holland America claims that some combination of the Bureau Veritas entities failed to con- duct adequate surveys, which in turn resulted in the loss of the ship.

The Wrtsil entities consist of three separate companies: Wrtsil, Wrtsil Finland, and Wrtsil North America ("Wrtsil NA"). Wrtsil is a Finnish holding company that indirectly owns both Wrtsil Finland and Wrtsil NA-it does not manufacture or design products. Wrtsil Finland designs and manufactures marine engines, but did not supply the marine engine for the Wind Song. Wrtsil NA, a Mary- land corporation, sells, repairs, and services marine engines. Holland America alleges that some combination of these cor- porations either designed, manufactured, or sold a faulty engine part that may have contributed to the accident. Some but not all of the parts sold and used by Wrtsil NA are man- ufactured by other Wrtsil entities, including Wrtsil Fin- land.

II. PROCEDURAL BACKGROUND

In its first complaint, Holland America named multiple Wrtsil entities and Bureau Veritas as defendants. After jurisdictional discovery, Wrtsil Australia and Wrtsil New Zealand were dismissed voluntarily from the case and Wrt- sil Finland was dismissed for lack of personal jurisdiction. The district court also granted Bureau Veritas's motion to dis- miss on the ground that the French forum selection clause in the contract between Bureau Veritas and Holland America governs the venue of any proceedings.

Holland America then twice amended its complaint to include defendants Wrtsil, Wrtsil NA, BVNA and BV Canada. Wrtsil, BVNA and BV Canada subsequently moved to dismiss. The district court granted Wrtsil's motion to dismiss for lack of personal jurisdiction. It also granted BVNA and BV Canada's joint motion to dismiss, holding that the French forum selection clause applied to BVNA and BV Canada, just as it applied to Bureau Veritas.

These orders left Wrtsil NA as a party in the case. The district court entered a certification under Federal Rule of Civil Procedure 54(b) and thus we consider these jurisdic- tional issues in an interlocutory appeal.

ANALYSIS

I. BUREAU VERITAS ENTITIES

We first examine whether the district court properly dis- missed the Bureau Veritas entities. We review for an abuse of discretion a dismissal based on a forum selection clause. Mur- phy v. Schneider Nat'l Inc. , 362 F.3d 1133, 1137 (9th Cir. 2004) (as amended). The trial court must draw all reasonable inferences in favor of the nonmoving party. Id. at 1138. How- ever, the pleadings need not be accepted as true, and the court may consider facts outside the pleadings. Id. at 1137.

[1] Whether Holland America may litigate its dispute with the BV entities in Washington state depends on which of sev- eral contracts govern their relationship. Holland America claims that the Bureau Veritas entities agreed to a forum selection clause providing for venue in Washington. The Bureau Veritas entities dispute this proposition, relying on two earlier contracts that provide for dispute resolution in the Court of Nanterre, France.

Bureau Veritas and Windstar signed two contracts at the outset of their relationship. The first contract, in 1988, was made among Bureau Veritas, Windstar, and Barber Ship Man- agement (Windstar's agent). The contract contained a forum selection clause which provided that "[a]ny dispute shall be submitted to the court of Nanterre (France)." The second con- tract, signed in 1991, by Bureau Veritas, Windstar, and Hol- land America contained the same clause. In June 2000, Bureau Veritas issued new general conditions that it attached to future surveying contracts. Article 12.3 of these new condi- tions provides that disputes other than those related to invoices are subject exclusively to arbitration in London and that English law applies.

Holland America alleges that its purchase orders for ser- vices and repairs include a forum selection clause that pro- vides for all litigation to take place in federal court in Seattle or state courts in Washington. In support of its effort to bring the Bureau Veritas entities under the umbrella of this forum selection clause, Holland America offers a single affidavit stating that it placed telephone orders for surveys of the Wind Song by calling BV Canada and, more recently, BVNA, and that it emailed its terms and conditions to andre.laroche@ca. bureauveritas.com.

Even taking these facts as true, Holland America does not meet its burden to establish jurisdiction under the Washington forum selection clause. See Dole Food Co. v. Watts , 303 F.3d 1104, 1108 (9th Cir. 2002) (holding that plaintiffs must make a prima facie case for jurisdiction to survive a motion to dis- miss). This case does not present a question of fact, but rather a lack of facts that even raise a question about jurisdiction. Indeed, the facts alleged are more notable for their omissions than their substance. Holland America offers not a single pur- chase order or email with any Bureau Veritas entity, let alone a purchase order with accompanying terms. Holland's bare assertions are just that-bare of any date, identity of contract- ing party, identity of transaction, or any other details that would tie the unspecified purchase order to the allegations in the complaint. For example, Holland America never states that it delivered its terms to Bureau Veritas, much less claims that Bureau Veritas agreed to such terms. Holland America does not state when it emailed its terms to Andre LaRoche, who emailed them, or whether LaRoche or anyone at Bureau Veritas, BVNA, or BV Canada ever accepted them. If the terms were delivered after 2002, they would have no bearing on this dispute. (No copy of the purported email has been pro- duced.) Nor does the mere placement of phone orders demon- strate anything about a written purchase order, let alone support a claim that those orders constituted an agreement meant to supersede the 1988 and 1991 contracts.

[2] Holland America's forum selection argument boils down to a claim that it emailed terms to someone at BV Can- ada. Nothing offered by Holland America even links this statement to a report or service order that is implicated in this dispute. In short, the facts and allegations in Holland Ameri- ca's complaint and its affidavits are too thin to meet its initial burden to support jurisdiction under the Washington forum selection clause.

Holland America makes much of the fact that, since 2000, Bureau Veritas may have bound its customers to new terms dictating resolution of contractual disagreements through arbi- tration in London. That fact does not change the result for Holland America. Regardless of whether the 1988 and 1991 contracts or the 2000 general conditions govern the relation- ship between Holland America and Bureau Veritas, none of the contracts would permit litigation to be brought in the Western District of Washington. But, just as significantly, Holland America does not claim to be bound by the post-2000 general conditions or any subsequent conditions adopted by Bureau Veritas.

[3] The forum selection clauses apply equally to BVNA and BV Canada because any transactions between those enti- ties and Holland America took place as part of the larger con- tractual relationship between Holland America and Bureau Veritas. Our decision is informed by the closely analogous case of Manetti-Farrow, Inc. v. Gucci America, Inc. , 858 F.2d 509 (9th Cir. 1988). Manetti-Farrow sought to avoid enforce- ment of a forum selection clause requiring litigation to be conducted in the Court of Florence. See id. at 511. The defen- dants included Gucci Parfums, a signatory to the contract, a variety of other Gucci-related companies, and several individ- uals who occupied prominent positions in the Gucci manage- ment hierarchy. Id. We held that the forum selection clause applied to all defendants, even though only Gucci Parfums signed the contract, because where the alleged conduct of the nonparties is closely related to the contractual relationship, "a range of transaction participants, parties and non-parties, should benefit from and be subject to forum selection clauses." Id. at 514 n.5 (quoting Clinton v. Janger , 583 F. Supp. 284, 290 (N.D. Ill. 1984)). Just as the disputed conduct in Manetti-Farrow arose out of the contract with Gucci Par- fums, the alleged conduct of BVNA and BV Canada is tied to Holland America's contract with Bureau Veritas.²

[4] Having determined that Holland America has not met its burden with respect to imposing the Washington state forum selection clause, we turn to whether it would be reason- able to give effect to the foreign forum selection clauses. As the Supreme Court counseled in M/S Bremen v. Zapata Off- Shore Co. , "in the light of present-day commercial realities and expanding international trade . . . the forum clause should control absent a strong showing that it should be set aside." 407 U.S. 1, 15 (1972). A forum selection clause may be unreasonable "(1) if the inclusion of the clause in the agree- ment was the product of fraud or overreaching; (2) if the party wishing to repudiate the clause would effectively be deprived of his day in court were the clause enforced; and (3) if enforcement would contravene a strong public policy of the forum in which suit is brought." Murphy , 362 F.3d at 1140.

Holland America does not argue that it was the victim of either fraud or overreaching, nor does it argue that it effec- tively would be deprived of its day in court if either clause were enforced. Instead, Holland America, through its experts,³ claims that the Court of Nanterre, France, might decline to hear its suit because of Bureau Veritas's 2000 general condi- tions. The affidavits simply reveal that a French court would consider which clause is applicable. Our job at this juncture is not to predict the outcome of any proceeding in either French or British courts.

[5] Finally, for the first time on appeal, Holland America argues that the French forum provision contravenes public policy because it deprives Holland America of its right to a jury trial. Because this argument was not raised below, it is waived.⁴ Arizona v. Components Inc. , 66 F.3d 213, 217 (9th Cir. 1995). The parties are sophisticated corporations that freely contracted with each other, and enforcement of the forum selection clause does not offend due process. Accord- ingly, we hold that the district court did not abuse its discre- tion in dismissing Bureau Veritas, BVNA, and BV Canada on the basis of the forum selection clauses in Bureau Veritas's contracts with Holland America.

II. WRTSIL ENTITIES

Holland America advances three separate theories to sup- port personal jurisdiction over the Wrtsil entities. It asserts that jurisdiction may be exercised (1) pursuant to Holland America's forum selection clause; (2) based on the Wrtsil entities' purposeful direction toward Washington; or (3) under Federal Rule of Civil Procedure 4(k)(2), which provides for nationwide service of process. We consider each of these arguments in turn, all of which are ultimately unpersuasive.⁵

A. JURISDICTION UNDER HOLLAND AMERICA'S FORUM

SELECTION CLAUSE

[6] As with the Bureau Veritas defendants, Holland Amer- ica first relies on the forum selection clause in its purchase orders to confer jurisdiction over Wrtsil and Wrtsil Fin- land. Under general contract principles, a forum selection clause may give rise to waiver of objections to personal juris- diction, see Chan v. Society Expeditions, Inc. , 39 F.3d 1398, 1406 (9th Cir. 1994), provided that the defendant agrees to be so bound, see, e.g. , Polar Shipping Ltd. v. Oriental Shipping Corp. , 680 F.2d 627, 632 (9th Cir. 1982) (holding that the scope of a forum selection clause is a matter of contract). The fundamental element lacking here is any evidence that either Wrtsil or Wrtsil Finland agreed to the clause.

[7] Holland America's jurisdictional claim rests on flimsy evidence: Holland America alleges that it conveyed its form terms (including the forum selection clause) to an unidentified email address ending in @wrtsil.com, and that the Wrtsil entities had notice of the terms because they appear on Hol- land America's website. The missing and critical evidence is telling. Holland America has not provided us any of the fol- lowing via allegations or evidence: a copy of the terms email; the name of any person who might have been on the receiving end of the email; any evidence of any assent to the terms by either Wrtsil or Wrtsil Finland; the name, position, or the individual within Holland America who might have sent the email; or the purchase orders related to the claims at issue. We agree with the district court that "it is not enough that plaintiffs allege to have sent the terms via email to an unspec- ified email address or general web address." Such an unsub- stantiated and vague statement does not establish a prima facie case for jurisdiction.

Alternately, Holland America contends that Wrtsil NA, which consented to its forum selection clause, acted as an agent for both Wrtsil Finland and Wrtsil for the purpose of consenting to jurisdiction. Here, too, the allegation is just that, an allegation without any evidence. Holland America urges us to look to the distributorship agreement between Wrtsil Finland and Wrtsil NA. However, Wrtsil NA produced testimony that Wrtsil NA was unaware of any occasion when Wrtsil NA had acted as an agent for Wrt- sil Finland in a U.S. transaction, and there is no evidence that Wrtsil NA had the authority to consent to jurisdiction for Wrtsil Finland. Wrtsil was not a party to that agreement, and Wrtsil categorically has denied allowing Wrtsil NA to serve as its agent for the purpose of consenting to litigation in the Western District of Washington.

[8] In the face of such unequivocal denials, Holland Amer- ica offers nothing in response. Neither the agreement nor the bare evidence supports Holland America's effort to bind Wrtsil or Wrtsil Finland by virtue of any agency relation- ship. Cf. Terracom v. Valley Nat'l Bank , 49 F.3d 555, 562 (9th Cir. 1995) (affirming district court's denial of discovery where "a plaintiff's claim of personal jurisdiction appears to be both attenuated and based on bare allegations in the face of specific denials made by defendants") (internal quotation marks omitted).

B. PERSONAL JURISDICTION IN THE ABSENCE OF AN

APPLICABLE FORUM SELECTION CLAUSE

We next consider Holland America's alternative arguments that the district court may exercise jurisdiction over Wrtsil and Wrtsil Finland either based on purposeful direction toward Washington or based on specific jurisdiction under Federal Rule of Civil Procedure 4(k)(2), which provides for nationwide service of process.⁶ See Helicopteros Nacionales de Colom., S.A. v. Hall , 466 U.S. 408, 414 & n.8 (1984) (clar- ifying that specific jurisdiction is appropriate where the suit arises out of a defendant's contacts with the forum); Consol. Dev. Corp. v. Sherritt, Inc. , 216 F.3d 1286, 1291-92 (11th Cir. 2000) (discussing both general and specific jurisdiction under Rule 4(k)(2)).

1. JURISDICTION BASED ON PURPOSEFUL DIRECTION

TOWARD WASHINGTON

[9] Holland America's assertion of personal jurisdiction over Wrtsil and Wrtsil Finland must satisfy the Supreme Court's oft-articulated requirement that specific personal jurisdiction must "aris[e] out of or related to the defendant's contacts with the forum." Helicopteros , 466 U.S. at 414 n.8. Here, the jurisdictional claim fails on both counts. The evi- dence supports neither sufficient contacts with the forum nor the requisite nexus between Holland America's claims and the Wrtsil parties' contacts with Washington.

a. STREAM OF COMMERCE/PURPOSEFUL AVAILMENT

Because there is no real connection between Wrtsil and Wrtsil Finland and Washington, Holland America relies on the proposition that those companies sold products or spon- sored web marketing for products that ended up in Washing- ton. Neither is sufficient to sustain jurisdiction here.

[10] The placement of a product into the stream of com- merce, without more, is not an act purposefully directed toward a forum state. Asahi Metal Indus. Co. v. Superior Court , 480 U.S. 102, 112 (1987). Even a defendant's aware- ness that the stream of commerce may or will sweep the prod- uct into the forum state does not convert the mere act of placing the product into the stream of commerce into an act purposefully directed toward the forum state. Id.

[11] Wrtsil itself has not put any products into the stream of commerce that might have ended up in the forum, whether through a distributorship agreement or otherwise. That alone ends the inquiry. To the extent that Holland America seeks to impute the activities of Wrtsil NA to Wrtsil, this argu- ment has little traction. It is well established that, as a general rule, where a parent and a subsidiary are separate and distinct corporate entities, the presence of one, i.e., Wrtsil NA, in a forum state may not be attributed to the other, i.e., Wrtsil. Doe v. Unocal Corp. , 248 F.3d 915, 925 (9th Cir. 2001).

Nor do the allegations against Wrtsil Finland support a theory of purposeful availment. Asahi requires "something more" than the mere placement of a product into a stream of commerce, and Holland America has failed to demonstrate the requisite extra showing here. See Asahi , 480 U.S. at 111.

A close reading of the record also reveals the paucity of contacts between Wrtsil Finland and Washington. Wrtsil Finland sells no products directly into the United States. A marketing representative occasionally visits the United States to keep cruise lines informed of Wrtsil Finland's propulsion system offerings, but none of these visits took place in Wash- ington. Although Holland America alleges that Wrtsil Fin- land "sends representatives to various industry trade shows in Washington," this allegation stems from a document demon- strating that employees of Wrtsil NA may conduct market- ing activities on behalf of Wrtsil Finland, not that they actually do. Similarly, although Holland America alleges that Wrtsil Finland conducts product training in the United States, the documents do not specify a location for this train- ing.

[12] Holland America points to the Wrtsil consortium's entirely passive website and Wrtsil's advertisements in var- ious marine publications as evidence of a marketing presence in Washington. We consistently have held that a mere web presence is insufficient to establish personal jurisdiction. See, e.g. , Panavision Int'l, L.P. v. Toeppen , 141 F.3d 1316, 1322 (9th Cir. 1998); Cybersell, Inc. v. Cybersell, Inc. , 130 F.3d 414, 418 (9th Cir. 1997). The Wrtsil website does not pro- vide any direct means for purchasing parts or requesting ser- vices; it simply provides information on the various products manufactured by the Wrtsil consortium and redirects poten- tial customers to the appropriate subsidiary. This type of pas- sive website is not purposefully directed to the forum state of Washington. Nor do any print advertisements that incidentally may have made their way to Washington support a finding of jurisdiction without more substantial evidence of contacts with the state. See Pebble Beach Co. v. Caddy , 453 F.3d 1151, 1158 (9th Cir. 2006). Holland America has provided the court with a copy of a single advertisement; there is no evi- dence that this advertisement was designed specifically for the Washington market, or that advertisements are heavily or pre- dominantly distributed in Washington. In sum, Holland America has not demonstrated that Wrtsil or Wrtsil Fin- land's extraordinarily limited contacts with Washington give rise to personal jurisdiction there.

Alternately, Holland America asks us to apply the "effects" test of Calder v. Jones , 465 U.S. 783, 788-89 (1984), claiming that the effect of Wrtsil's activities was felt in Washington. We decline to apply Calder because it is well established that the Calder test applies only to intentional torts, not to the breach of contract and negligence claims presented here. See id. at 789 (distinguishing between intentional action and "mere untargeted negligence"); see also Dole , 303 F.3d at 1111 ("Under our precedents, the purposeful direction or availment requirement for specific direction is analyzed in intentional tort cases under the `effects' test derived from Cal- der v. Jones ."); Bancroft & Masters, Inc. v. Augusta Nat'l Inc. , 223 F.3d 1082, 1088 (9th Cir. 2000) (emphasizing that Calder requires the defendant to individually and wrongfully target the plaintiff). Contrary to Holland America's conten- tions, the Calder line of cases is inapposite and does not sup- port a finding of jurisdiction.

b. NEXUS REQUIREMENT

[13] Unlike general jurisdiction, specific jurisdiction is tethered to a relationship between the forum and the claim. Omeluk v. Langsten Slip & Batbyggeri A/S , 52 F.3d 267, 271 (9th Cir. 1995). That relationship is missing here. The injury occurred in Tahiti, not Washington. The engine that blew up was manufactured in France, with no connection to Washing- ton. And even if the claim stems from a defective fuel line, Holland America offered no specific allegations as to when or where the fuel line used on the Wind Song was purchased or installed; it has alleged only that Wartsila NA once mailed to Seattle a replacement part for one of the Wind Song's sister ships.

2. JURISDICTION UNDER RULE 4( K )(2)

[14] In a final effort to sustain jurisdiction, Holland Amer- ica invokes Federal Rule of Civil Procedure 4(k)(2), the nationwide jurisdiction provision. We reject this argument. Wrtsil and Wrtsil Finland's contacts with the United States are only marginally more significant than their contacts with Washington and do not support a finding of nationwide jurisdiction.

Rule 4(k)(2) provides:

If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effec- tive, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state.

Rule 4(k)(2) is not limited to the contours of a state long- arm statute. Instead, a court may exercise jurisdiction when three requirements are met. First, the claim against the defen- dant must arise under federal law-a point undisputed in this case because Holland America asserts admiralty claims. Peb- ble Beach Co. , 453 F.3d at 1159; see also World Tanker Car- riers Corp. v. MV Ya Mawlaya , 99 F.3d 717, 723 (5th Cir. 1996). Second, the defendant must not be subject to the per- sonal jurisdiction of any state court of general jurisdiction. Pebble Beach Co. , 453 F.3d at 1159. Third, the federal court's exercise of personal jurisdiction must comport with due pro- cess. Id.

[15] With respect to the second requirement, neither Wrt- sil nor Wrtsil Finland has alleged that it is subject to the courts of general jurisdiction in any state. Indeed, Wrtsil Finland has specifically stated that it is not subject to the courts of general jurisdiction in any state. Ordinarily, the plaintiff bears the burden of proving personal jurisdiction over the defendant. However, proving the lack of personal jurisdic- tion in every state could be quite onerous, and it is the defen- dant, not the plaintiff, that likely possesses most of the information necessary to do so. United States v. Swiss Am. Bank, Ltd. , 191 F.3d 30, 40-41 (1st Cir. 1999). Accordingly, we join the Fifth, Seventh, and D.C. Circuits in holding that

[a] defendant who wants to preclude use of Rule 4(k)(2) has only to name some other state in which the suit could proceed. Naming a more appropriate state would amount to a consent to personal jurisdic- tion there . . . . If, however, the defendant contends that he cannot be sued in the forum state and refuses to identify any other where suit is possible, then the federal court is entitled to use Rule 4(k)(2). This pro- cedure makes it unnecessary to traipse through the 50 states, asking whether each could entertain the suit.

ISI Int'l, Inc., v. Borden Ladner Gervais LLP , 256 F.3d 548, 552 (7th Cir. 2001) (citations omitted); see also Adams v Unione Mediterranea Di Sicurta , 364 F.3d 646, 651 (5th Cir. 2004) ("We agree with the Seventh Circuit, that a piecemeal analysis of the existence vel non of jurisdiction in all fifty states is not necessary. Rather, so long as a defendant does not concede to jurisdiction in another state, a court may use 4(k)(2) to confer jurisdiction."); Mwani v. bin Laden , 417 F.3d 1, 11 (D.C. Cir. 2005) (adopting the Seventh Circuit's approach). Thus, absent any statement from either Wrtsil or Wrtsil Finland that it is subject to the courts of general jurisdiction in another state, the second requirement of Rule 4(k)(2) is met.

The third requirement-that the exercise of personal juris- diction comport with due process-presents a major stum- bling block for Holland America because of the limited contacts of Wrtsil and Wrtsil Finland with the United States. The due process analysis under Rule 4(k)(2) is nearly identical to traditional personal jurisdiction analysis with one significant difference: rather than considering contacts between the Wrtsil entities and the forum state, we consider contacts with the nation as a whole. Pebble Beach Co. , 453 F.3d at 1159 ("The due process analysis is identical to the one discussed above when the forum was California, except here the relevant forum is the entire United States."); accord World Tanker Carriers Corp. , 99 F.3d at 723-24.

[16] The contacts between the Wrtsil entities and the United States can only be described as scant, fleeting, and attenuated. Neither Wrtsil nor Wrtsil Finland has offices, employees, or other related connections in the United States. As noted earlier, the Wrtsil website is not targeted to the United States. Nothing in the record links Wrtsil to this country except a one-time presentation at a single cruise ship "leadership forum" in Miami, Florida, where Wrtsil also sponsored a reception and dinner tables. This isolated incident does not support jurisdiction under Rule 4(k)(2). See Glen- core Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co. , 284 F.3d 1114, 1123 (9th Cir. 2002) (quoting Burger King Corp. v. Rudzewicz , 471 U.S. 462, 475 (1985)) (holding that a defendant should not be haled into court as a result of "ran- dom," "fortuitous," or "attenuated" contacts and declining to exercise Rule 4(k)(2) jurisdiction when the defendant had made seven individual shipments to the East Coast).

Wrtsil Finland's contacts, albeit slightly more numerous than Wrtsil's, still are too insignificant to invoke nation- wide jurisdiction. Holland America has not supported its non- specific claim that Wrtsil Finland authorizes Wrtsil NA to conduct marketing on its behalf, and Wrtsil Finland's occasional visits to cruise ships and unspecified advertising in various marine publications hardly constitute significant con- tacts.

[17] The few cases in which our sister circuits have con- cluded that Rule 4(k)(2) conferred jurisdiction have involved defendants with much more extensive contacts to this country. See, e.g. , Mwani , 417 F.3d at 13 (holding that jurisdiction could be exercised where defendants had engaged in numer- ous conspiracies to bomb the World Trade Center, the United Nations, and the Lincoln and Holland Tunnels); Adams , 364 F.3d at 651 (upholding personal jurisdiction under Rule 4(k)(2) where the defendant insurer had directly insured hun- dreds of claims in the United States). Indeed, in the fourteen years since Rule 4(k)(2) was enacted, none of our cases has countenanced jurisdiction under the rule. Holland America failed to make a prima facie showing that Rule 4(k)(2) confers jurisdiction over either Wrtsil Finland or Wrtsil. Accord- ingly, we affirm the district court's dismissal of Wrtsil Fin- land and Wrtsil for lack of personal jurisdiction.

AFFIRMED.

B. FLETCHER, Circuit Judge, concurring and dissenting:

I concur in the judgment and concur in the opinion's rea- soning regarding the Wrtsil entities and the lack of jurisdic- tion under Holland America's forum selection clause.

However, I cannot concur in the section of the opinion that affirms dismissal of BVNA and BV Canada on the basis of the forum selection clauses. The record contains no evidence that the contracts containing those clauses, which were signed by Holland America and Bureau Veritas, S.A., governed any work performed by BVNA or BV Canada. Cf. Manetti- Farrow, Inc. v. Gucci America, Inc. , 858 F.2d 509 (9th Cir. 1988) (applying a forum selection clause to nonsignatories where the claims were intertwined with the contract contain- ing the clause). I respectfully dissent from that section of the opinion.

Nevertheless, the evidence shows a lack of personal juris- diction (either specific or general) in Washington over either BVNA or BV Canada. Therefore, I concur in the judgment as

to BVNA and BV Canada.