Storer et al v. Crown Cork & Seal et alMOTION to Dismiss for Lack of JurisdictionW.D. La.June 19, 20171 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION MARTHA DENMON STORER, * CIVIL ACTION NO: 5:14-CV-02488 et al. Plaintiffs * JUDGE: ELIZABETH E. FOOTE v. CROWN CORK & SEAL CO., * MAGISTRATE JUDGE KAREN HAYES INC., et al. Defendants CROWN BEVERAGE PACKAGING, LLC’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION NOW INTO COURT, through undersigned counsel, comes Defendant, Crown Beverage Packaging, LLC (incorrectly identified in Plaintiffs’ Amended Complaint as “Crown Beverage Packaging, Inc.,” which does not exist), and respectfully moves, per Fed. R. Civ. Pro. 12(b)(2), to dismiss Plaintiffs’ claims against it based on the fact that Louisiana Courts do not have personal jurisdiction over Crown Beverage Packaging, LLC. Crown Beverage does not have any contacts, much less “minimum contacts,” that would substantiate the exercise of personal jurisdiction, whether general or specific, over it by Louisiana Courts and the assertion of personal jurisdiction over Crown Beverage would be unconstitutional. Crown has set forth the basis for its Motion to Dismiss in the accompanying Memorandum in Support. Undersigned counsel has contacted counsel for the Plaintiffs, advised that this Motion is being filed, and confirmed that Plaintiffs oppose Crown Beverage Packaging, LLC’s Motion to Dismiss for Lack of Personal Jurisdiction. Case 5:14-cv-02488-EEF-KLH Document 218 Filed 06/19/17 Page 1 of 2 PageID #: 2821 2 WHEREFORE, Defendant, Crown Beverage Packaging, LLC, respectfully prays that, after due proceedings are had, its Motion to Dismiss for Lack of Personal Jurisdiction be granted, at Plaintiffs’ cost, and that Plaintiffs’ claims against Crown Beverage Packaging, LLC be dismissed. Respectfully submitted: PUGH, ACCARDO, HAAS, RADECKER & CAREY, LLC /s/ Joseph H. Hart, IV_____________ JOSEPH H. HART, IV (#21434) THOMAS A. PORTEOUS (#27039) DANIEL E. OSER (#27027) 1100 Poydras Street, Suite 3300 New Orleans, Louisiana 70112 Email: jhart@pugh-law.com tporteous@pugh-law.com doser@pugh-law.com Counsel for Defendant Crown Beverage Packaging, LLC CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing was this date filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent electronically to all counsel of record by operation of the Court’s CM/ECF system. Signed this 19th day of June, 2017. /s/ Joseph H. Hart, IV JOSEPH H. HART, IV Case 5:14-cv-02488-EEF-KLH Document 218 Filed 06/19/17 Page 2 of 2 PageID #: 2822 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION MARTHA DENMON STORER, * CIVIL ACTION NO: 5:14-CV-02488 et al. Plaintiffs * JUDGE: ELIZABETH E. FOOTE v. CROWN CORK & SEAL CO., * MAGISTRATE JUDGE KAREN HAYES INC., et al. Defendants MEMORANDUM IN SUPPORT OF CROWN BEVERAGE PACKAGING, LLC’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Table of Contents: I. Introduction……………………………………………………………………………3 II. Relevant Facts and Procedural History………………………………………………...4 III. Law and Argument…………………………………………………………………….6 a. Plaintiff has the burden of establishing personal jurisdiction over each Defendant to his action but hasn’t even offered allegations to suggest personal jurisdiction exists over Crown Beverage……………………………………………………………………….7 b. Crown Beverage does not have any contacts with Louisiana; Plaintiff cannot establish that Crown Beverage has the minimum contacts with Louisiana that are necessary for Louisiana Courts to assert personal jurisdiction over Crown Beverage……………….8 c. Crown Beverage is a Delaware business entity and has its principle place of business in Pennsylvania. Crown Beverage is not “at home” in Louisiana for purposes of asserting general personal jurisdiction………………………………………………...9 d. Plaintiff’s claim against Crown Beverage does not arise from alleged acts or omissions in Louisiana of the type that might establish specific personal jurisdiction…………..10 e. The assertion of personal jurisdiction over Crown Beverage by Louisiana Courts would offend traditional notions of fair play and substantial justice………………………..12 Case 5:14-cv-02488-EEF-KLH Document 218-1 Filed 06/19/17 Page 1 of 13 PageID #: 2823 2 IV. Conclusion: Louisiana Courts do not have personal jurisdiction over Crown Beverage Packaging, LLC. Plaintiffs’ claims against Crown Beverage should be dismissed based on lack of jurisdiction………………………………………………………………..12 Table of Authorities: Allred v. Moore & Peterson, 117 F.3d 278, 286 (5th Cir. 1997)…………………………………12 Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir. 2000)……………………..6 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)………………………………… 3, 11 Daimler AG V. Bauman, 134 S.Ct. 746, 758-61 (2014)………………………………………. 3, 9 Eddy v. Printers House (P) Ltd., 627 Fed.Appx. 323, 326 (5th Cir. 2015)……………………….6 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923 (2011)…………………..6 International Shoe v. Washington, 326 U.S. 310, 319 (1945)………………………………...10, 11 Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 773 (1984)……………………………………..10 Kulko v. Superior Court of Cal., City and County of San Francisco, 436 U.S. 84, 93 (1978).10, 11 Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir.1999)……………………………………….….7 Mercury Rents, Inc. v. Crenshaw Enterprises, LLC, 2017 WL 2380642, *4 (W.D. La. 4/13/2017)…………………………………………………………………………….. 6 Mink v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th Cir. 1999)…………………………………….. 6 Monkton Ins. Servs., Ltd., v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014)…………………..…….. 10 Shaffer v. Heitner, 433 U.S. 186, 204 (1977)…………………………………………………..6, 10 Stanford v. DS Corp. of Indiana, 2015 WL 1623895, *1 (W.D. La. 4/10/2015) ……………….. 7 Walden v. Fiore, 113 S.Ct. 1115, 1122 (2014)…………………………………………3, 4, 10, 11 Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.1994)…………………………………………………7 Zibari v. International College of Surgeons, 2015 WL 502236, *4 (W.D. La. 2/5/2015)………12 Case 5:14-cv-02488-EEF-KLH Document 218-1 Filed 06/19/17 Page 2 of 13 PageID #: 2824 3 Defendant, Crown Beverage Packaging, LLC (incorrectly identified in Plaintiffs’ Amended Complaint as “Crown Beverage Packaging, Inc.,” which does not exist), respectfully submits this Memorandum in Support of Fed. R. Civ. Pro. 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction. I. Introduction This Court does not have general or specific personal jurisdiction over Crown Beverage. There is no general personal jurisdiction over Crown Beverage because Crown Beverage is not a Louisiana business entity, nor does Crown Beverage have its principal place of business in Louisiana.1 In fact, Crown Beverage does not have any contacts with Louisiana that would support a finding of general jurisdiction by Louisiana Courts.2 There is no specific personal jurisdiction because the tortious conduct alleged by Plaintiffs occurred in Longview, Texas and there is no evidence of any connection between Crown Beverage’s alleged acts and/or omissions and Louisiana other than the fact that Decedent was a resident of Louisiana.3 It is axiomatic that personal jurisdiction over a Defendant cannot be based on the Plaintiff’s affiliation with the forum state; rather, personal jurisdiction must be based on the Defendant’s contacts with the forum state.4 Moreover, the focus is on contacts between Defendant and the state itself, not between Defendant and the Plaintiffs.5 Here, there are no allegations, nor any evidence, of contacts between Crown Beverage and the State of Louisiana. As such, the exercise of personal jurisdiction over Crown Beverage 1 Daimler AG V. Bauman, 134 S.Ct. 746, 758-61 (2014); Declaration of Michael J. Rowley, attached as Exhibit A. 2 Declaration of Michael J. Rowley, attached as Exhibit A. 3 Amended Complaint, R. Doc. 204. 4 Walden v. Fiore, 134 S.Ct. 1115, 1122 (2014) (“First, the relationship must arise out of contacts that the ‘defendant himself‘creates with the forum State.”) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). 5 Id. Case 5:14-cv-02488-EEF-KLH Document 218-1 Filed 06/19/17 Page 3 of 13 PageID #: 2825 4 Packaging, LLC would necessarily “offend traditional notions of fair play and substantial justice” and therefore be unconstitutional.6 II. Relevant Facts and Procedural History Plaintiffs are heirs of Herbert “Bud” Storer and allege that Decedent died from mesothelioma due to asbestos exposure caused by Defendants’ negligence.7 Mr. Storer died on July 8, 2013, and Plaintiffs filed suit on June 26, 2014, joining twelve Defendants, including Crown Cork & Seal Company, Inc., individually and as successor to the Mundet Cork Company.8 During the discovery that followed removal of Plaintiffs’ suit to this Court, no connection between Crown Cork and Decedent-or between Mundet and Decedent-was ever identified. However, Decedent’s son, Plaintiff Craig Storer, testified that he and Decedent had visited the manufacturing facility of Continental Can Company in Longview, Texas.9 Continental Can Company, which no longer exists, was affiliated with Crown Beverage but was a distinct entity from Crown Beverage. Plaintiffs had joined the wrong party for exposure alleged to have taken place at Continental Can’s facility and Crown Cork’s counsel advised Plaintiffs’ counsel of that fact at the time of, or shortly after, Craig Storer’s deposition. Craig Storer testified that the Longview, Texas visit took place on a single afternoon sometime between during the period from 1984 and 1988 so that Decedent and he could check on the status of a job being performed by Decedent’s heating, ventilation, and air conditioning (HVAC) company, Storer Equipment.10 Notably, Raymond Butts, another of Plaintiff’s witnesses, testified that, by the time of the visit to Continental Can’s facility, Storer Equipment had a policy 6 Id. at 1121. 7 R. Doc. 1-3, ¶¶1-4. 8 Id. at ¶¶2-13. 9 Deposition of Craig Storer, p. 109, line 10 - p. 112, line 10, p. 200, line 23 - p. 203, line 9, attached as Exhibit B. 10 Id. Case 5:14-cv-02488-EEF-KLH Document 218-1 Filed 06/19/17 Page 4 of 13 PageID #: 2826 5 that it would not perform any work with or around asbestos and any work performed on a customer’s premises would have only taken place after any potential asbestos hazard had been eliminated through abatement.11 Thus, there is no evidence that Decedent was exposed to asbestos while on Continental Can’s premises, although unfounded speculation that such exposure took place is the sole basis for Plaintiffs’ claim against Crown Beverage as successor to Continental Can Company. As of the time of Plaintiffs’ Motion for Leave to file their Amended Complaint, all Defendants had been dismissed other than Trane Co. and Crown Cork.12 A Scheduling Order was, and remains, in effect that established March 31, 2017 as the deadline for amending to add additional parties.13 That deadline passed without Plaintiff seeking leave to amend to add any additional Defendants.14 Despite having missed the deadline for amended pleadings and despite having been advised long before the deadline that they had joined the wrong Defendant, Plaintiffs sought leave to amend their Complaint on April 3, 2017.15 In their Amended Complaint, Plaintiffs submitted that they had “misnamed” Crown Cork & Seal Company, Inc. and intended or should have named Crown Beverage Packaging, Inc., which they allege is affiliated with Crown Cork & Seal.16 Plaintiffs’ Motion for Leave to File their Amended Petition was granted and summons was issued to Crown Beverage Packaging, Inc.17 Although Crown Beverage Packaging, Inc. no long exists and has been succeeded by Crown Beverage Packaging, LLC18 and although service of process was never 11 Deposition of Raymond Butts, p. 85, line 8 - p. 90, line 11, attached as Exh. C. 12 See generally, Record. 13 R. Doc. 174. 14 See generally, Record. 15 R. Doc. 196. 16 R. Doc. 204, ¶2. 17 R. Docs. 203 & 205. 18 Declaration of Michael J. Rowley, attached as Exh. “A”. Case 5:14-cv-02488-EEF-KLH Document 218-1 Filed 06/19/17 Page 5 of 13 PageID #: 2827 6 properly made,19 Crown Beverage Packaging, LLC appears herein for the sole purpose of seeking dismissal of the claims against it based on lack of personal jurisdiction. III. Law and Argument In order for this Court to exercise personal jurisdiction over a non-Louisiana Defendant, such as Crown Beverage, Plaintiff must establish (1) that either general or specific jurisdiction exists and (2) that the exercise of jurisdiction over the non-resident Defendant will not offend traditional notions of fair play and substantial justice. In order to assert jurisdiction, the Court must find that the Defendant “purposefully availed [itself] of the benefits and protections of the forum state by establishing ‘minimum contacts’ with the forum state.”20 Here, there are no contacts, Louisiana courts do not have general or specific jurisdiction over Crown Beverage, and the assertion of jurisdiction over Crown Beverage would clearly “offend traditional notions of fair play and substantial justice” as each of those concepts have been construed by the Supreme Court and Fifth Circuit Court of Appeals.21 19 The Summons was issued to the non-existing entity, Crown Beverage Packaging, Inc. R. Doc. 205. 20 Mercury Rents, Inc. v. Crenshaw Enterprises, LLC, 2017 WL 2380642, *4 (W.D. La. 4/13/2017) (“The Due Process Clause of the Fourteenth Amendment sets the outer boundaries of a state tribunal’s authority to proceed against a defendant. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923 (2011) (citing Shaffer v. Heitner, 433 U.S. 186, 207 (1977)). To determine whether due process permits the exercise of personal jurisdiction, the Court asks whether two requirements are met. Eddy v. Printers House (P) Ltd., 627 Fed.Appx. 323, 326 (5th Cir. 2015). First, the nonresident defendant must have “purposefully availed [itself] of the benefits and protections of the forum state by establishing ‘minimum contacts’ with the forum state.” Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir. 2000). Second, the exercise of jurisdiction over that defendant must not offend “traditional notions of fair play and substantial justice.” Id.; Mink v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th Cir. 1999). If either of these requirements is not satisfied, a district court may not exercise personal jurisdiction over the nonresident defendant. Eddy, 627 Fed.Appx. at 326.”), attached as Exh. D. 21 Mink v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th Cir. 1999). Case 5:14-cv-02488-EEF-KLH Document 218-1 Filed 06/19/17 Page 6 of 13 PageID #: 2828 7 a. Plaintiff has the burden of establishing personal jurisdiction over each Defendant to his action but hasn’t even offered allegations to suggest personal jurisdiction exists over Crown Beverage. Plaintiffs have the burden of proving personal jurisdiction over each Defendant they seek to join.22 Should this Court deem an evidentiary hearing necessary relative to deciding this Motion, Plaintiffs will have to prove that personal jurisdiction exists by a preponderance of the evidence.23 If no evidentiary hearing is held, Plaintiff’s burden is to establish that a prima facie basis exists for Louisiana Courts to assert personal jurisdiction over Crown Beverage.24 A prima facie basis for jurisdiction exists when Plaintiffs’ uncontroverted allegations, taken as true, are sufficient to establish the existence of personal jurisdiction.25 Plaintiffs mere allegations carry no weight whatsoever if contradicted by actual evidence. Plaintiffs’ jurisdictional allegations must be contained in the Complaint, as amended. But, in the pending matter, Plaintiffs have not made any allegations with which to suggest that personal jurisdiction exists over Crown Beverage. Plaintiffs’ Amended Petition, the pleading with which Plaintiffs’ joined Crown Beverage, is silent as to personal jurisdiction.26 Thus, Plaintiffs have failed to present even a prima facie suggestion that personal jurisdiction exists. Conversely, Crown Beverage has attached admissible evidence-the Declaration of Michael J. Rowley and deposition testimony of a Plaintiff and another of Plaintiffs’ witnesses- establishing that there is no basis for Louisiana Courts to assert general or specific personal 22 Stanford v. DS Corp. of Indiana, 2015 WL 1623895, *1 (W.D. La. 4/10/2015) (“When a nonresident defendant brings a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff seeking to invoke the jurisdiction of the district court bears the burden of establishing contacts by the nonresident defendant sufficient to invoke the jurisdiction of the court.”) (citing Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.1994)), attached as Exh. E. 23 Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.1994). 24 Id. 25 Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir.1999). 26 R. Doc. 204. Case 5:14-cv-02488-EEF-KLH Document 218-1 Filed 06/19/17 Page 7 of 13 PageID #: 2829 8 jurisdiction over this Defendant.27 Plaintiffs’ claims against Crown Beverage should be dismissed based on lack of personal jurisdiction. b. Crown Beverage does not have any contacts with Louisiana; Plaintiff cannot establish that Crown Beverage has the minimum contacts with Louisiana that are necessary for Louisiana Courts to assert personal jurisdiction over Crown Beverage. As established by the attached Declaration of Michael J. Rowley, Assistant Corporate Secretary and Assistant General Counsel of Crown Holdings, Inc.,28 Crown Beverage does not have any discernable contacts with Louisiana: • Crown Beverage Packaging, LLC is a Delaware limited liability company with its principal place of business in Philadelphia, Pennsylvania; • Crown Beverage Packaging, LLC is not registered to conduct business in Louisiana, nor has it ever been registered to conduct business in Louisiana; • Crown Beverage Packaging, LLC does not have a registered agent in Louisiana; • Crown Beverage Packaging, LLC does not own, lease, manage, or mortgage any real property in Louisiana; • Crown Beverage Packaging, LLC does not maintain offices or operate any facilities in Louisiana; • Crown Beverage Packaging, LLC does not have any members, officers, directors, or employees who reside in Louisiana; 27 Declaration of Michael J. Rowley, attached as Exh. A; Deposition of Craig Storer, attached as Exh. B; Deposition of Raymond Butts, attached as Exh. C. 28 Mr. Rowley’s Declaration also establishes that the sole member of Crown Beverage Packaging, LLC is Crown Cork & Seal USA, Inc. and that Crown Cork & Seal USA, Inc. is a wholly-owned subsidiary of Crown Holdings, Inc., Mr. Rowley’s direct employer. Exh. A. Case 5:14-cv-02488-EEF-KLH Document 218-1 Filed 06/19/17 Page 8 of 13 PageID #: 2830 9 • Crown Beverage Packaging, LLC does not advertise any products or services in Louisiana; • Crown Beverage Packaging, LLC does not maintain any bank accounts in Louisiana; • Crown Beverage Packaging, LLC does not maintain any company records in Louisiana; • Crown Beverage Packaging, LLC does not have any telephone number, business address, or mailing address in Louisiana; and • Crown Beverage Packaging, LLC’s entire business operations are located outside of Louisiana.29 Accordingly, there is nothing with which to establish any contacts between Crown Beverage Packaging, LLC and Louisiana, much less the “continuous and systematic” contacts that are required for the exercise of personal jurisdiction.30 c. Crown Beverage is a Delaware business entity and has its principle place of business in Pennsylvania. Crown Beverage is not “at home” in Louisiana for purposes of asserting general personal jurisdiction. The Supreme Court of the United States’ Daimler decision established that, absent “extraordinary circumstances,” general jurisdiction over a company only exists in the states where the company was formed and where it maintains its principle place of business.31 Since Daimler was decided, the Fifth Circuit Court of Appeals has recognized that “[i]t is incredibly difficult to 29 Id. 30 Daimler AG v. Bauman, 134 S.Ct. 746, 761 (2014). 31 Id. Case 5:14-cv-02488-EEF-KLH Document 218-1 Filed 06/19/17 Page 9 of 13 PageID #: 2831 10 establish general jurisdiction in a forum other than the place of incorporation or principal place of business.”32 Crown Beverage Packaging, LLC is a Delaware limited liability company with its principal place of business in Pennsylvania. It is not “at home” in Louisiana and, in fact, has no contacts with Louisiana. There is no evidence-and no basis-for finding that any “extraordinary circumstances” exist. Therefore, general jurisdiction does not exist as a matter of law and a finding of general jurisdiction would be in violation of the United States Constitution. d. Plaintiff’s claim against Crown Beverage does not arise from alleged acts or omissions in Louisiana of the type that might establish specific personal jurisdiction. There is nothing on which to base the exercise of specific jurisdiction by Louisiana over Crown Beverage. Specific jurisdiction only exists when the Defendant has sufficient contacts with the forum state for the Defendant to reasonably expect to be hailed into Court in the forum state. Specific jurisdiction looks to “the relationship among the defendant, the forum, and the litigation.”33 This analysis “looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.”34 Here, there is no evidence that Crown Beverage has any contacts with Louisiana on which to base specific jurisdiction as the “contact” between Decedent and Defendant took place in Texas, not Louisiana, and did not involve contact with Louisiana itself. Rather, the only evidence is that Defendant may have had some contact with the Decedent, a non-state actor. The Supreme Court has expressly found that “the plaintiff cannot 32 Monkton Ins. Servs., Ltd., v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014). 33 Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 773 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)). 34 Walden v. Fiore, 113 S.Ct. 1115, 1122 (2014) (citing International Shoe v. Washington, 326 U.S. 310, 319 (1945). Case 5:14-cv-02488-EEF-KLH Document 218-1 Filed 06/19/17 Page 10 of 13 PageID #: 2832 11 be the only link between the defendant and the forum” and that “a defendant’s relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction.”35 Here, the only evidence of any contact between Decedent and this Defendant is contact that is alleged to have taken place in Texas. In the approximately three years that Plaintiffs had to conduct discovery before joining Crown Beverage in their Amended Complaint, the only in-person connection between Decedent and this Defendant that has been suggested is the single afternoon visit by Decedent to Defendant’s predecessor’s facility in Texas. Beyond that brief in-person contact, the only other connection with Decedent is that Continental Can is alleged to have contracted with Decedent’s company, Storer Equipment, for the Longview, Texas boiler replacement work that was the reason for Decedent’s visit. As a matter of law, specific jurisdiction does not arise based on a non-forum Defendant contracting with a forum Plaintiff for work performed in the non-forum state.36 Also as a matter of law, specific jurisdiction does not arise based on the unilateral acts of the Plaintiff.37 Here, Decedent’s visit to Defendant’s Texas facility was a unilateral act by Decedent. There is no evidence that the visit was for any other purpose than to satisfy Decedent’s curiosity and desire to see the work. There is no evidence that he met with any principals at the facility, nor that he performed any actual function by his visit. 35 Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). 36 Id. at 1122-23 (citing Kulko v. Superior Court of Cal., City and County of San Francisco, 436 U.S. 84, 93 (1978)) 37 Walden v. Fiore, 113 S.Ct. 1115, 1122 (2014) (citing International Shoe v. Washington, 326 U.S. 310, 319 (1945). 37 Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). 37 Id. at 1123. Case 5:14-cv-02488-EEF-KLH Document 218-1 Filed 06/19/17 Page 11 of 13 PageID #: 2833 12 e. The assertion of personal jurisdiction over Crown Beverage by Louisiana Courts would offend traditional notions of fair play and substantial justice. Even if the Court were to find that there is evidence to support the assertion of personal jurisdiction over a Defendant, personal jurisdiction cannot be asserted absent one last analysis, which is to determine whether the exercise of jurisdiction would “offend traditional notions of fair play and substantial justice.”38 Here, in the absence of any contacts between Crown Beverage and Louisiana, this analysis should never be reached.39 Asserting jurisdiction in the absence of any contacts between the Defendant and Louisiana constitutes the classic case of offending “traditional notions of fair play and substantial justice.” Accordingly, this Court should find that no personal jurisdiction exists over Crown Beverage Packaging, LLC and dismiss Plaintiffs’ claims against this Defendant. IV. Conclusion: Louisiana Courts do not have personal jurisdiction over Crown Beverage Packaging, LLC. Plaintiffs’ claims against Crown Beverage should be dismissed based on lack of jurisdiction. The record is void of even a shred of allegation, much less evidence, that would support a finding that Louisiana Courts have personal jurisdiction over Crown Beverage Packaging, LLC. To the contrary, the evidence presented establishes that there is no basis for the assertion of general or specific personal jurisdiction over this Defendant. In the absence of a basis for asserting jurisdiction, jurisdiction cannot be asserted and Crown Beverage’s Motion to Dismiss for Lack of Personal Jurisdiction should be granted. 38 Allred v. Moore & Peterson, 117 F.3d 278, 286 (5th Cir. 1997). 39 Zibari v. International College of Surgeons, 2015 WL 502236, *4 (W.D. La. 2/5/2015) (“As the Plaintiff has failed to allege sufficient minimum contact between the Defendants and the State of Louisiana, the Court need not determine whetherthe exercise of jurisdiction comports with fair play and substantial justice. Therefore, the Court finds that the Plaintiff has not met his burden of making a prima facie showing of jurisdiction, and the Defendants’ motion to dismiss shall be GRANTED.”), attached as Exh. F. Case 5:14-cv-02488-EEF-KLH Document 218-1 Filed 06/19/17 Page 12 of 13 PageID #: 2834 13 Respectfully submitted: PUGH, ACCARDO, HAAS, RADECKER & CAREY, LLC /s/ Joseph H. Hart, IV_____________ JOSEPH H. HART, IV (#21434) THOMAS A. PORTEOUS (#27039) DANIEL E. OSER (#27027) 1100 Poydras Street, Suite 3300 New Orleans, Louisiana 70112 Email: jhart@pugh-law.com tporteous@pugh-law.com doser@pugh-law.com Counsel for Defendant Crown Beverage Packaging, LLC CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing was this date filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent electronically to all counsel of record by operation of the Court’s CM/ECF system. Signed this 19th day of June, 2017. /s/ Joseph H. Hart, IV JOSEPH H. HART, IV Case 5:14-cv-02488-EEF-KLH Document 218-1 Filed 06/19/17 Page 13 of 13 PageID #: 2835 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION MARTHA DENMON STORER, * CIVIL ACTION NO: 5:14-CV-02488 et al. Plaintiffs * JUDGE: ELIZABETH E. FOOTE v. CROWN CORK & SEAL CO., * MAGISTRATE JUDGE KAREN HAYES INC., et al. Defendants ORDER GRANTING CROWN BEVERAGE PACKAGING, LLC’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION After considering Crown Beverage Packaging, LLC’s Motion to Dismiss for Lack of Personal Jurisdiction, this Court grants the Motion and hereby dismisses Plaintiffs’ claims against Crown Beverage Packaging, LLC without prejudice. SO ORDERED, this ____ day of _________________________, 2017. __________________________________________ JUDGE ELIZABETH E. FOOTE Case 5:14-cv-02488-EEF-KLH Document 218-2 Filed 06/19/17 Page 1 of 1 PageID #: 2836 Case 5:14-cv-02488-EEF-KLH Document 218-3 Filed 06/19/17 Page 1 of 3 PageID #: 2837 Case 5:14-cv-02488-EEF-KLH Document 218-3 Filed 06/19/17 Page 2 of 3 PageID #: 2838 Case 5:14-cv-02488-EEF-KLH Document 218-3 Filed 06/19/17 Page 3 of 3 PageID #: 2839 WILLIAMS & JANKOWSKI, LLC Page 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION NO. 5:14-CV-024488-EEF-KLH JUDGE ELIZABETH FOOTE MAGISTRATE JUDGE KAREN L. HAYES MARTHA DENMON STORER, ET AL VERSUS CROWN CORK & SEAL CO., INC., ET AL Deposition of CRAIG H. STORER, taken at the offices of Jones & Odom, LLP, 2124 Fairfield Avenue, Shreveport, Louisiana 71104, on June 9, 2015. REPORTED BY: RALPH D. BOYLES, JR., CP, CCR WILLIAMS & JANKOWSKI, LLC 46 LOUIS PRIMA DRIVE, SUITE B COVINGTON, LOUISIANA 70433 (504) 832-0937 wj1465@bellsouth.net Case 5:14-cv-02488-EEF-KLH Document 218-4 Filed 06/19/17 Page 1 of 10 PageID #: 2840 WILLIAMS & JANKOWSKI, LLC Page 109 1 THE WITNESS: 2 I have no idea. I have no 3 recollection. 4 MR. ELLIOTT: 5 That's all the questions I have. 6 Thank you very much. 7 MR. HARDWICKE: 8 No questions. 9 EXAMINATION BY MR. RANEY: 10 Q. Mr. Storer, good afternoon at this 11 point. My name is Scott Raney. I 12 represent Crown Cork & Seal. 13 First off, do you associate the name 14 Crown Cork & Seal with any particular 15 product? 16 A. Yes, as a manufacturer. 17 Q. I'm sorry? 18 A. As a manufacturer. 19 Q. As a manufacturer? 20 A. Yes. 21 Q. What product would that be? 22 A. Steel cans, I believe, at the time I was 23 over there at their plant in Longview. 24 Q. When were you there? 25 A. I was there in the '80s. Yeah, early Case 5:14-cv-02488-EEF-KLH Document 218-4 Filed 06/19/17 Page 2 of 10 PageID #: 2841 WILLIAMS & JANKOWSKI, LLC Page 110 1 '80s. 2 Q. Were you working there? 3 A. Yeah, erecting boilers, retrofit two. 4 Q. Where was this plant? 5 A. Longview, Texas. 6 Q. Longview, Texas? 7 A. Yes. 8 Q. Was your dad working on that project? 9 A. I think he went to the project. I don't 10 think he was working. He wasn't 11 physically working on the project, no. 12 The job was to disassemble two boilers, 13 retrofit the heat exchangers and 14 reassemble the boilers. Actually, I 15 sold the job. 16 Q. So when you say he went to the project, 17 but wasn't working on it, was he -- 18 A. Curiosity. He wanted to see what the 19 plucked chicken looked like. 20 Q. I want to make sure I heard this right. 21 It's a technical term, plucked chicken? 22 A. That's what Cleaver Brooks calls it. 23 Q. Would he just be on the job site 24 checking things out? 25 A. Yes. We rode over there to check things Case 5:14-cv-02488-EEF-KLH Document 218-4 Filed 06/19/17 Page 3 of 10 PageID #: 2842 WILLIAMS & JANKOWSKI, LLC Page 111 1 out. 2 Q. How often would you say that would have 3 been? 4 A. Once. 5 Q. How long was the job overall? 6 A. The first boiler probably took us three 7 weeks. The second boiler probably took 8 us two weeks. 9 Q. Took five weeks total? 10 A. Yeah. 11 Q. About? 12 A. Yeah. No more. 13 Q. He came one time during that five weeks? 14 A. That's all I recall. 15 Q. Any other times working at a facility 16 owned by Crown Cork & Seal? 17 A. That's the only one. 18 Q. Switching to another name, do you 19 associate the name Mundet with any 20 particular product? 21 A. I have heard the name. I know they were 22 an insulator or seal manufacturer. 23 Q. How do you know that? 24 A. Just -- 25 Q. General knowledge? Case 5:14-cv-02488-EEF-KLH Document 218-4 Filed 06/19/17 Page 4 of 10 PageID #: 2843 WILLIAMS & JANKOWSKI, LLC Page 112 1 A. General knowledge. 2 Q. So your family's companies, Storer and 3 its successor entities, would they have 4 ever sold any Mundet products, to your 5 knowledge? 6 A. Not that I know of. 7 Q. You wouldn't be able to say one way or 8 the other whether your father ever 9 worked on any Mundet products? 10 A. I wouldn't have any knowledge of that. 11 MR. RANEY: 12 That's all the questions I have. 13 Thank you. 14 EXAMINATION BY MR. TAFARO: 15 Q. Mr. Storer, my name is Peter Tafaro. 16 I'll try to be as brief as possible, try 17 not to duplicate what others have asked 18 you. I simply want to clear up my notes 19 a little bit. 20 I represent Cleaver Brooks, just so 21 that you know that beforehand going in. 22 I want to start off by trying to do 23 a little bit of time line of when you 24 started and your time at the company. 25 The part that is a little unclear to me Case 5:14-cv-02488-EEF-KLH Document 218-4 Filed 06/19/17 Page 5 of 10 PageID #: 2844 WILLIAMS & JANKOWSKI, LLC Page 200 1 that there were, as well? 2 A. Service contracts. 3 Q. Service contracts? 4 A. Yes. 5 Q. Do you have records as to if you bought 6 products, such as pumps or valves, that 7 were not necessarily associated with 8 Trane, would you still have copies of 9 those types of invoices or sales 10 documents or purchase documents? 11 A. Possibly. There may be a record in our 12 data base, serial number and start date. 13 Q. Would you happen to know how far back 14 those would go? 15 A. Our enterprise system is about eleven 16 years old. I don't remember the exact 17 year we transitioned it, but -- 18 MR. MORTON: 19 I do believe that, as far as I'm 20 concerned, that's all the questions 21 that I have. So, thank you. 22 EXAMINATION BY MR. RANEY: 23 Q. One more. Mr. Storer, Scott Raney. 24 Since you and I last spoke, you 25 mentioned Continental Can. You believe Case 5:14-cv-02488-EEF-KLH Document 218-4 Filed 06/19/17 Page 6 of 10 PageID #: 2845 WILLIAMS & JANKOWSKI, LLC Page 201 1 Continental Can at some point was 2 acquired by Crown Cork & Seal; is that 3 correct? 4 A. Yes. 5 Q. How do you know about that acquisition? 6 A. Just as a name change in doing business. 7 Q. So you did business with Continental Can 8 for a certain period of time, and then 9 continued to do business with Crown Cork 10 & Seal afterwards? 11 A. I believe we still do some business with 12 the current facility. 13 Q. Do you know around what time the 14 acquisition would have happened? 15 A. No. 16 Q. With you and your father, circling back 17 to your earlier testimony about the 18 Longview, Texas site visit, when you 19 went to that site visit, do you know if 20 the facility was owned by Continental 21 Can at that time, and if it was before 22 the acquisition that you are referring 23 to? 24 A. I couldn't say for sure, but I think the 25 proposal was to Continental Can. Case 5:14-cv-02488-EEF-KLH Document 218-4 Filed 06/19/17 Page 7 of 10 PageID #: 2846 WILLIAMS & JANKOWSKI, LLC Page 202 1 Q. So, to the best of your knowledge, when 2 you and your father went to the site, it 3 was owned by Continental Can? 4 MR. HENDLER: 5 Object to the form of the 6 question. 7 THE WITNESS: 8 I don't know. 9 EXAMINATION BY MR. RANEY: 10 Q. Going back to the timing of this site 11 visit, you said that you would have 12 graduated from the Trane class in the 13 spring of 1984? 14 A. Yes. 15 Q. That you were selling product for Storer 16 Company in East Texas for about four 17 years after that? 18 A. Yes. 19 Q. Is that right? 20 A. Yes. 21 Q. Would you put it in those four years? 22 A. Yes. 23 Q. So it would be fair to say that it was 24 between 1984 and 1988, about? 25 A. I would say that's correct. Case 5:14-cv-02488-EEF-KLH Document 218-4 Filed 06/19/17 Page 8 of 10 PageID #: 2847 WILLIAMS & JANKOWSKI, LLC Page 203 1 Q. Then, other than that site visit, was 2 your daddy ever at that facility? 3 A. Not to my knowledge. 4 Q. Do you know if he was ever -- if he ever 5 visited any other facility owned by 6 Crown Cork & Seal? 7 A. Not to my knowledge. 8 MR. RANEY: 9 That's all the questions I have. 10 EXAMINATION BY MR. ELLIOTT: 11 Q. I just have one question. 12 Did H. E. Storer have any offices 13 other than the one in Shreveport? 14 A. Yes. 15 Q. Where was that? 16 A. We had a branch office in Longview for a 17 period of time. We had one in Monroe. 18 Q. During, I guess, that first four years 19 or so in East Texas, were you stationed 20 out of Longview or were you working out 21 of Shreveport? 22 A. I was working out of Shreveport. We 23 didn't have it at that point in time. 24 It wasn't until later. 25 Q. So all of your work was done out of the Case 5:14-cv-02488-EEF-KLH Document 218-4 Filed 06/19/17 Page 9 of 10 PageID #: 2848 WILLIAMS & JANKOWSKI, LLC Page 205 1 C E R T I F I C A T E 2 3 This certification is valid only for a transcript accompanied by my original 4 signature and original required seal on this page. 5 I, Ralph D. Boyles, Jr., CP, CCR, 6 Certified Court Reporter, of Louisiana, as the officer before whom this testimony was 7 taken, do hereby certify that CRAIG H. STORER, after having been duly sworn by me 8 upon authority of R.S. 37:2554, did testify as hereinbefore set forth in the foregoing 9 205 pages; that this testimony was reported by me in the stenotype reporting method, was 10 prepared and transcribed by me or under my personal direction and supervision, and is a 11 true and correct transcript to the best of my ability and understanding; that the 12 transcript has been prepared in compliance with transcript format guidelines required by 13 statute or by rules of the board, that I have acted in compliance with the prohibition on 14 contractual relationships, as defined by Louisiana Code of Civil Procedure Article 15 1434 and in rules and advisory opinions of the board; that I am not related to counsel 16 or to the parties herein, nor am I otherwise interested in the outcome of this matter. 17 18 19 20 21 22 23 24 RALPH D. BOYLES, JR., CP, CCR 25 CERTIFIED COURT REPORTER #82002 Case 5:14-cv-02488-EEF-KLH Document 218-4 Filed 06/19/17 Page 10 of 10 PageID #: 2849 Raymond G. Butts June 8, 2016 800-971-1127 Stratos Legal Services 1 (Pages 1 to 4) Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION MARTHA DENMON STORER, CIVIL ACTION NO. 5:14-CV-02488 ET AL Plaintiffs VS. JUDGE: ELIZABETH E. FOOTE CROWN CORK & SEAL, MAGISTRATE JUDGE ET AL KAREN L. HAYES Video and Oral deposition of RAYMOND G. BUTTS, called by Plaintiff, at the offices of Jones & Odom, 2124 Fairfield Avenue, Shreveport, Louisiana, commencing at approximately 10:57 a.m., on the 8th day of June 2016, and concluded on the same date. Reported by: Susan C. Bergren, RPR, CCR Page 3 1 CONTINUED APPEARANCES: 2 FOR HONEYWELL INTERNATIONAL, INC: 3 MR. GLENN BROZMAN ADAMS Porteous Hainkel Johnson 4 704 Carondelet Street New Orleans, Louisiana 70130-3774 5 gadams@phjlaw.com 6 FOR TRANE USA, INC: 7 MR. MCNEIL J. KEMMERLY 8 Maron, Marvel, Bradley & Anderson LLC 201 St. Charles Avenue 9 Suite 2411 New Orleans, Louisiana 70170 10 mkemmerly@maronmarvel.com 11 FOR CLEAVER BROOKS: 12 MR. PETER R. TAFARO 13 Frilot, LLC 1100 Poydras Street 14 Suite 3700 New Orleans, Louisiana 70163 15 ptafaro@frilot.com 16 FOR GOULDS PUMP, LLC AND ITT CORPORATION: 17 MS. LAUREN A. MCCULLOCH 18 Morgan, Lewis & Bockius, LLP 1000 Louisiana Street, Suite 4000 19 Houston, Texas 77002 lauren.mcculloch@morganlewis.com 20 21 FOR JOHNSON CONTROLS, INC: 22 MR. ROCKY W. EATON Tyner, Eaton & Fulce 23 626 Corrine Street P.O. Box 1646 24 Hattiesburg, Mississippi 39403 reaton@tef-law.com 25 Page 2 1 APPEARANCES 2 FOR THE PLAINTIFFS: 3 MR. SCOTT M. HENDLER MS. REBECCA WEBBER 4 Hendler, Lyons, Flores 1301 West 25th Street 5 Suite 400 Austin, Texas 78705 6 shendler@hendlerlaw.com alopez@hendlerlaw.com 7 sxtorres@hendlerlaw.com 8 FOR CROWN, CORK & SEAL: 9 MR. MICHAEL D. LONEGRASS 10 Galloway, Johnson, Tompkins, Burr & Smith 11 701 Poydras Street Floor 40 12 New Orleans, Louisiana 70139 mlonegrass@gallowayjohnson.com 13 bderoch@gallowayjohnson.com 14 FOR SOUTHERN PIPING SUPPLY: 15 MS. MAGALI A. PUENTE 16 Kuchler, Polk, Schell, Weiner & Richeson 17 1615 Poydras Street Suite 1300 18 New Orleans, Louisiana 70112 mpuente@kuchlerpolk.com 19 20 FOR UNION CARBIDE CORPORATION, LLC: 21 MR. DAVID H. HARDWICKE Kuchler, Polk, Schell, 22 Weiner & Richeson 808 Russell Palmer Road 23 Suite 205 Kingwood, Texas 77339 24 dhardwicke@kuchlerpolk.com 25 Page 4 1 CONTINUED APPEARANCES: 2 FOR CRANE CO.: 3 MR. BARRY C. CAMPBELL Dogan & Wilkinson, PLLC 4 3900 North Causeway Boulevard Suite 1200 5 Metairie, Louisiana 70002 bcampbell@dwwattorneys.com 6 7 FOR RAYMOND G. BUTTS: 8 MR. BRIAN F. BLACKWELL Blackwell & Associates 9 2600 CitiPlace Drive Suite 525 10 Baton Rouge, Louisiana 70808 brian@blackwell-associates.com 11 12 ALSO PRESENT: 13 MR. BOBBY BRYANT (VIDEOGRAPHER) 14 15 16 17 18 19 20 21 22 23 24 25 Case 5:14-cv-02488-EEF-KLH Document 218-5 Filed 06/19/17 Page 1 of 3 PageID #: 2850 Raymond G. Butts June 8, 2016 800-971-1127 Stratos Legal Services 22 (Pages 85 to 88) Page 85 1 named Mundet, M-u-n-d-e-t? 2 A No. 3 Q Okay. So I guess you can't give me any 4 testimony that Mr. Storer ever worked with or around a 5 product that was made by Mundet or Crown, Cork & Seal; 6 is that right? 7 A I have no knowledge of it. 8 Q Okay. Have you ever heard of a company 9 Continental Can? 10 A Yes. 11 Q Okay. Did you ever do any work at a 12 Continental Can facility while you were working the 13 for the Storers? 14 A Yes. 15 Q When was that work? 16 A That would have been way back in the -- 17 they had a plant there in Longview. I can't give you 18 any dates, but they had some reciprocating compressors 19 that we rebuilt for them. 20 Q Okay. We deposed Craig Storer. He 21 recalled working at the Continental Can plant in about 22 1984. 23 A That could be right. I don't -- 24 Q Okay. 25 A I can't -- Page 87 1 don't know. But again, we did change gaskets on 2 compressors. 3 BY MR. LONEGRASS: 4 Q At Continental Can? 5 A Yes. 6 Q And you just don't know what decade that 7 was in? 8 A I don't know what year or what -- 9 Q Okay. Do you remember the manufacturer of 10 the gaskets? 11 A Trane. 12 Q Okay. And the manufacturer of the 13 compressor? 14 A Trane. 15 Q Okay. But as we sit here today, you can't 16 tell me whether or not those gaskets or anything else 17 on that Trane equipment at the Continental Can 18 facility contained asbestos, can you? 19 A No. 20 MR. HENDLER: Object to form. 21 BY MR. LONEGRASS: 22 Q Okay. How many times did you go out to the 23 Continental Can facility? 24 A Oh, probably 10 or 15 times. 25 Q Okay. And this is all for one job? Page 86 1 Q Do you have any recollection of ever going 2 out to the Continental Can plant let's say before 3 1980? 4 A I don't recall. 5 Q I'm sorry? 6 A I don't recall. 7 Q Okay. It's my understanding from your last 8 deposition that at some point around 1980 that a 9 policy was developed at Storer to turn down jobs where 10 the presence of asbestos was found. 11 A It was to -- if we suspected asbestos, we 12 were to pull off the job until they got it abated or 13 whatever the process they went through. 14 Q Okay. Now, with regard to the work, or at 15 least this job which I believe occurred in 1984 at the 16 Continental Can plant, given the policy that Storer 17 had in place by that time, would I be safe to assume 18 that there was no asbestos on that job otherwise the 19 Storer business would have either turned that work 20 away or waited for that asbestos to be remediated? 21 MR. HENDLER: Object to the form of the 22 question. 23 A The only thing that we've talked about 24 today is the gaskets, and we would change the gaskets 25 on the compressors. Now, whether they was asbestos, I Page 88 1 A It was one -- one area. 2 Q Okay. Did Bud Storer ever come out to this 3 job? 4 A No, not that I know of. 5 Q Would you be able to provide me with any 6 testimony that Bud Storer was ever present at the 7 Continental Can facility in Longview, Texas? 8 MR. KEMMERLY: Object to form. 9 A I can't. Don't know. 10 BY MR. LONEGRASS: 11 Q Okay. But at least during the times that 12 you were there during work, you have no recollection 13 of him being present at that job? 14 A Correct. 15 Q Is there anything else that you guys or 16 that you recall ever doing at the Continental Can 17 plant in Longview, Texas? 18 MR. HENDLER: Object to the form. 19 MR. BLACKWELL: Same objection. 20 A I know we replaced the motor in one of the 21 chillers. 22 BY MR. LONEGRASS: 23 Q Would this work have been done during that 24 10 to 15 visits on that -- 25 A Yeah. Case 5:14-cv-02488-EEF-KLH Document 218-5 Filed 06/19/17 Page 2 of 3 PageID #: 2851 Raymond G. Butts June 8, 2016 800-971-1127 Stratos Legal Services 23 (Pages 89 to 92) Page 89 1 Q -- one job we're talking about? 2 A Yes. 3 Q So other than that one job -- 4 MR. BLACKWELL: I think he -- let me -- 5 let me interpose an objection. I think you're 6 mischaracterizing what he said, and I'm going to 7 object to you doing that. He's not saying that they 8 went there 15 times and whatever the one job is -- 9 MR. LONEGRASS: Oh, okay. 10 BY MR. LONEGRASS: 11 Q Well, I'm sorry. I must have misunderstood 12 your testimony. 13 A I didn't probably go there 15 times, but my 14 men may have been in and out. 15 Q Okay. Those 15 visits, would that have 16 been pursuant to one overall job, or was -- 17 A No, no. That was just -- they called us 18 when they needed us. 19 Q Okay. 20 MR. BLACKWELL: That's why I wanted to 21 make sure you understood, because that's the way I 22 took it, but I didn't know if he'd take it in a 23 different way. 24 MR. LONEGRASS: No, I appreciate it. 25 Thank you. Page 91 1 MR. HENDLER: Object to the form. 2 A Well, why would we go to work when we knew 3 there was asbestos? 4 BY MR. LONEGRASS: 5 Q I'm sorry? 6 A Why would we want to work where we knew 7 there was asbestos? If the customer took care of the 8 asbestos, we did the work. 9 Q Okay. And to the best of your 10 recollection, you believe that policy started at 11 Storer -- 12 A Yes. 13 Q -- in about 1980? 14 MR. HENDLER: Object to the form. 15 A Some -- somewhere, I don't know. I can't 16 tell you the date. 17 BY MR. LONEGRASS: 18 Q Okay. Do you recall the year that asbestos 19 being dangerous was first discussed with the folks 20 over at Storer? 21 A We had heard about it for two or three 22 years maybe. I don't know when it become a real 23 issue. I don't know the dates. 24 Q I appreciate that, and I'm just going to 25 see if I can pry a little bit more to get -- what Page 90 1 BY MR. LONEGRASS: 2 Q Okay. As we sit here today, is there any 3 way that you can -- or do you know whether or not the 4 first visit to the Continental Can facility occurred 5 prior to 1980? 6 A I don't know. 7 Q Okay. If Craig Storer says that he first 8 remembers going to the Continental Can facility after 9 he completed his certification around 1984, would you 10 have any reason to dispute that? 11 A No. 12 MR. HENDLER: Object to the form. 13 BY MR. LONEGRASS: 14 Q Okay. Other than the gaskets, do you -- 15 well, other than the gaskets, do you believe that 16 there's any other product that may have contained 17 asbestos at the Continental Can plant in Longview, 18 Texas? 19 MR. HENDLER: Objection to the form. 20 A I don't know. 21 BY MR. LONEGRASS: 22 Q Fair enough. And do you remember -- just 23 switching gears a little bit -- why was the policy 24 developed at Storer to turn down jobs where asbestos 25 was present? Page 92 1 about a decade? 2 A About what? 3 Q A decade. Do you know if it was in the 4 late '70s, if it was in the '80s? 5 MR. HENDLER: Object to the form. 6 A I don't know the answer. 7 MR. LONEGRASS: Okay. I think that's 8 all the questions I have for you, Mr. Butts. I 9 certainly appreciate your time. 10 A Okay. 11 (TIME IS 12:38 P.M.) 12 (Off-the-record discussion) 13 EXAMINATION 14 BY MR. TAFARO: 15 Q Mr. Butts, are you okay to go? I'm going 16 to be very brief, but I'm happy to take a break if 17 you'd like to. 18 A No. Let's go ahead. 19 Q Okay. Mr. Butts, my name is Pete Tafaro. 20 We met about a month ago at your deposition over the 21 course of a couple days. Do you remember that? 22 A Yes. 23 Q And during the course of those two days you 24 were asked hundreds of questions and you testified 25 truthfully and honestly, right? Case 5:14-cv-02488-EEF-KLH Document 218-5 Filed 06/19/17 Page 3 of 3 PageID #: 2852 Mercury Rents, Inc. v. Crenshaw Enterprises, LLC, Slip Copy (2017) 2017 WL 2380642 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2017 WL 2380642 Only the Westlaw citation is currently available. United States District Court, W.D. Louisiana, Lafayette Division. MERCURY RENTS, INC. v. CRENSHAW ENTERPRISES, LLC, d/b/a Tiger Industrial Rentals Civil Action No. 6:16-CV-1741 | Signed 04/13/2017 Attorneys and Law Firms Steven G. Durio, Daniel Josef Phillips, Durio McGoffin et al., Lafayette, LA, for Mercury Rents, Inc. Donna B. Wood, Elizabeth Bradley McDermott, McCranie Sistruck et al., New Orleans, LA, for Crenshaw Enterprises, LLC. REPORT AND RECOMMENDATION CAROL B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE *1 Pending before the Court are: (1) a Motion to Dismiss, or Alternatively, Motion to Transfer Venue, filed by Defendant Crenshaw Enterprises, LLC, d/b/a Tiger Industrial Rentals (“Tiger Industrial”) (Doc. 8); (2) a Motion for Leave to File First Supplemental, Amended, and Restated Complaint, filed by Plaintiff Mercury Rents, Inc. (“Mercury Rents”) (Doc. 19); (3) Mercury Rents’ Memorandum in Opposition to Tiger Industrial’s motions (Doc. 21); (4) Tiger Industrial’s Reply (Doc. 24); and (5) Tiger Industrial’s Memorandum in Opposition to Mercury Rent’s motion (Doc. 25). For the following reasons, the undersigned recommends that Tiger Industrial’s Motion to Dismiss be GRANTED, that Tiger Industrial’s Motion to Transfer Venue be DENIED as MOOT, and that Mercury Rent’s motion to amend be DENIED. I. Background Mercury Rents has filed suit seeking to recover damages, alleging that it agreed to lease two pieces of equipment known as “mud buckets” to Tiger Industrial. (Doc. 1-2 at ¶ 3.) According to the complaint, Tiger Industrial “is a Texas partnership registered to do and doing business in the State of Louisiana, with a registered agent for service in the state of Louisiana.” (Doc. 1-2 at ¶ 1.) Mercury Rents alleges in the complaint that: (1) it properly and timely shipped two brand new mud buckets to Tiger Industrial for the purpose of leasing them to Tiger Industrial; (2) despite the lease agreement and proper invoices for rent, Tiger Industrial failed to pay rent for either mud bucket; (3) Tiger Industrial subsequently returned one of the mud buckets to Mercury Rents; and (4) Tiger Industrial informed Mercury Rents in an email that it could not locate the other mud bucket. (Doc. 1-2 at ¶¶ 3, 5, 7-8.) Mercury Rents seeks relief in the form of damages for all past due rents owed and either return of the mud bucket lost while in Tiger Industrial’s control or the costs of its replacement. (Doc. 1-2 at ¶¶ 6, 11.) II. The Parties’ Motions and Responses Tiger Industrial has filed a Motion to Dismiss, or Alternatively, Motion to Transfer Venue. (Doc. 8.) Pursuant to Federal Rule of Civil Procedure 12(b)(2), Tiger Industrial asserts that this action should be dismissed for lack of personal jurisdiction over it as a non-resident defendant. (Doc. 8-1 at pp. 3-8.). Tiger Industrial contends that: (1) it is a Texas company; (2) its “contacts with the State of Louisiana do not rise to a level that could justify the exercise of personal jurisdiction over the company in this manner under either [ ] general or specific jurisdiction”; and (3) the allegations of extensive contacts with Louisiana, as alleged in the proposed amended complaint, “are far from sufficient to establish that Tiger Industrial is essentially ‘at home’ in Louisiana.” (Doc. 8-1 at p. 5; Doc. 24 at p 3.) Pursuant to Federal Rule of Civil Procedure 12(b)(3), Tiger Industrial further seeks dismissal on the basis that venue is improper. (Doc. 8-1 at pp. 8-9.) Tiger Industrial contends that it is not a Louisiana company and that no substantial part of the event or omissions giving rise to Mercury Rents’ claim occurred in Louisiana. (Doc. 8-1 at 9; Doc. 24 at 6.) Should the Court deny its motion to dismiss, Tiger Industrial asserts that, pursuant to 28 U.S.C. § 1404(a), this action should be transferred to the United States District Court for the Eastern District of Texas for the convenience of the parties and witnesses. Case 5:14-cv-02488-EEF-KLH Document 218-6 Filed 06/19/17 Page 1 of 6 PageID #: 2853 Mercury Rents, Inc. v. Crenshaw Enterprises, LLC, Slip Copy (2017) 2017 WL 2380642 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 (Doc. 8-1 at pp. 10-11; Doc. 24 at p. 6.) *2 Pursuant to Federal Rule of Civil Procedure 15(a), Mercury Rents seeks Court leave to amend and supplement its complaint in order to: (1) include allegations concerning jurisdiction and venue; (2) amend its references to Tiger Industrial; and (3) to add an express theory of recovery. (Doc. 19 at ¶ 3; Doc. 19-2 at pp. 1-3.) Tiger Industrial opposes as futile Mercury Rent’s motion for leave to amend. (Doc. 25.) Mercury Rents has also filed a Memorandum in Opposition to Tiger Industrial’s motions. (Doc. 21.) Mercury Rents contends that, pursuant to Tiger Industrial’s contacts as alleged in its proposed amended complaint, Tiger Industrial “has established and maintain[ed] extensive systematic and continuous business presence in Louisiana.” (Doc. 21 at p. 17.) According to Mercury Rents, therefore, “Tiger [Industrial’s] business presence in Louisiana is more than sufficient for this Court to exercise general jurisdiction over [Tiger Industrial].” (Doc. 21 at p. 17.) Mercury Rents further contends that Tiger Industrial cannot meet its burden to show that the exercise of personal jurisdiction over Tiger Industrial would violate traditional notions of fair play and substantial justice. (Doc. 21 at pp. 18-21.) Next, because Tiger Industrial is subject to personal jurisdiction in this Court, Mercury Rents contends that Tiger Industrial is deemed to be a resident of this district. (Doc. 21 at pp. 21-22). Thus, according to Mercury Rents, venue is proper in this Court. (Doc. 21 at p. 22.) Lastly, Mercury Rents asks this Court to deny Tiger Industrial’s alternative motion to transfer this action because Tiger Industrial “cannot meet its stringent burden to show this venue is not so inconvenient that Mercury [Rents] should be denied its privilege of choosing its home forum for this matter.” (Doc. 21 at p. 23.) III. Discussion A. Mercury Rent’s Motion to Amend Pursuant to Rule 15(a), Mercury Rents seeks Court leave to amend and supplement its complaint in order to: (1) include allegations concerning jurisdiction and venue; (2) amend its references to Tiger Industrial; and (3) to add an express theory of recovery. (Doc. 19 at ¶ 3; Doc. 19-2 at pp. 1-3.) In its proposed amended complaint, Mercury Rents seeks to establish this Court’s general jurisdiction based on the following allegations of extensive, systematic, and continuous contacts with the State of Louisiana: a. Tiger [Industrial] has maintained locations in Sulphur, Louisiana, and Shreveport, Louisiana, for many years, from which it conducts business; b. Tiger [Industrial] has leased immovable property in the State of Louisiana for many years, including property located in Sulphur, Louisiana; c. Tiger [Industrial] represents that it maintains other business locations in the State of Louisiana, including Broussard, Louisiana; Intracoastal City, Louisiana; Cameron, Louisiana; Fourchon, Louisiana, and Venice, Louisiana; d. Tiger [Industrial] has stationed employees in the State of Louisiana for many years; e. Tiger [Industrial] regularly transacts business with customers and clients in the State of Louisiana, with such business constituting at least 4% of Tiger [Industrial’s] total income; f. Tiger [Industrial], through its website and other marketing materials, solicits business from customer in the State of Louisiana; g. Tiger [Industrial] has been registered to do business in the State of Louisiana since March 16, 2007; *3 h. Tiger [Industrial] has a registered agent for service in the State of Louisiana; i. Tiger [Industrial’s] trade name has been registered with the Louisiana Secretary of State since May 7, 2007, and has been in use in Louisiana since February 1, 2007; j. Tiger [Industrial] pays taxes to the government of the State of Louisiana; k. Tiger [Industrial] regularly attends a trade show held biannually in Lafayette, Louisiana. (Doc. 19-1 at ¶ 2.) Rule 15(a) provides in pertinent part that leave to amend “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). Leave to amend generally should be granted absent some justification for refusal such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party Case 5:14-cv-02488-EEF-KLH Document 218-6 Filed 06/19/17 Page 2 of 6 PageID #: 2854 Mercury Rents, Inc. v. Crenshaw Enterprises, LLC, Slip Copy (2017) 2017 WL 2380642 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 by virtue of allowance of the amendment, [or] futility of the amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). See also Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998). A district court “acts within its discretion in denying leave to amend where the proposed amendment would be futile because it could not survive a motion to dismiss.” Rio Grande Royalty Co. v. Energy Transfer Partners, LP, 620 F.3d 465, 468 (5th Cir. 2010). Tiger Industrial opposes Mercury Rent’s motion to amend as futile. (Doc. 25 at p. 2.) Even assuming that the proposed amended complaint sufficiently describes Tiger Industrial’s contacts with Louisiana, Tiger Industrial argues that such contacts are insufficient to establish personal jurisdiction. (Doc. 25 at p. 2.) For the reasons discussed below in connection with Tiger Industrial’s motion to dismiss, the Court concludes that Mercury Rent’s proposed amendments fail to confer personal jurisdiction and are, therefore, futile. Accordingly, its motion for leave to amend (Doc. 19) should be denied. B. Tiger Industrial’s Motion to Dismiss for Lack of Personal Jurisdiction Personal jurisdiction “is an essential element of the jurisdiction of a district court, without which it is powerless to proceed to an adjudication.” 721 Bourbon, Inc. v. House of Auth, LLC, 140 F. Supp. 3d 586, 591 (E.D. La. 2015) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). “When a nonresident defendant moves the court to dismiss for lack of personal jurisdiction under Rule 12(b)(2), the plaintiff bears the burden to show that personal jurisdiction exists.” Id. (citing Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002)). “When a court rules on a motion to dismiss for lack of personal jurisdiction without holding an evidentiary hearing, as in this case, the nonmoving party need only make a prima facie showing; ‘[p]roof by a preponderance of the evidence is not required.’ ” Id. (quoting Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 609 (5th Cir. 2008)). The allegations of the complaint, except where controverted by opposing affidavits, must be taken as true, and all factual disputes must be resolved in favor of plaintiffs. Id. (citing Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir. 1985)). “In making its determination, the Court may consider “affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery.” Id. (citing Revell, 317 F.3d at 469). *4 A court has personal jurisdiction over a nonresident defendant if (1) the forum state’s long-arm statute confers personal jurisdiction over that defendant, and (2) the forum state’s exercise of jurisdiction complies with the Due Process Clause of the Fourteenth Amendment. Id. at 591-92 (citing Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999)). Louisiana’s long-arm statute permits the exercise of personal jurisdiction over a non-resident who acts directly or by an agent, as to a cause of action arising from “[m]anufacturing of a product or component thereof which caused damage or injury in this state, if at the time of placing the product into the stream of commerce, the manufacturer could have foreseen, realized, expected, or anticipated that he product may eventually be found in this state by reason of its nature and the manufacturer’s marketing practices” or “on any basis consistent with the constitution of this state and the Constitution of the United States.” LA. REV. STAT. § 13:3201 et seq. Because Louisiana’s long-arm statute extends jurisdiction to the full limits of due process, the Court’s focus is solely on whether the exercise of its jurisdiction in this case satisfies federal due process requirements. 721 Bourbon, 140 F.3d at 592 (citing Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 336 (5th Cir. 1999)). The Due Process Clause of the Fourteenth Amendment sets the outer boundaries of a state tribunal’s authority to proceed against a defendant. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923 (2011) (citing Shaffer v. Heitner, 433 U.S. 186, 207 (1977)). To determine whether due process permits the exercise of personal jurisdiction, the Court asks whether two requirements are met. Eddy v. Printers House (P) Ltd., 627 Fed.Appx. 323, 326 (5th Cir. 2015). First, the nonresident defendant must have “purposefully availed [itself] of the benefits and protections of the forum state by establishing ‘minimum contacts’ with the forum state.” Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir. 2000). Second, the exercise of jurisdiction over that defendant must not offend “traditional notions of fair play and substantial justice.” Id.; Mink v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th Cir. 1999). If either of these requirements is not satisfied, a district court may not exercise personal jurisdiction over the nonresident defendant. Eddy, 627 Fed.Appx. at 326. While ostensibly reserving its right to assert specific jurisdiction later, Mercury Rents makes no argument that specific jurisdiction exists in this case. (See Doc. 21 at p. 7 n. 2.) Indeed, Mercury Rent’s allegations in its proposed first amended complaint are strictly confined to whether the Court has general and not specific jurisdiction. (See Doc. 19-1 at ¶ 2.) Thus, the Court’s inquiry focuses on whether Tiger Industrial had sufficient contacts with Louisiana to support the exercise of general jurisdiction. Case 5:14-cv-02488-EEF-KLH Document 218-6 Filed 06/19/17 Page 3 of 6 PageID #: 2855 Mercury Rents, Inc. v. Crenshaw Enterprises, LLC, Slip Copy (2017) 2017 WL 2380642 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 A court may assert general jurisdiction over foreign defendants “to hear any and all claims against them.” Goodyear Dunlop Tires, 564 U.S. 915, 919. In Daimler AG v. Bauman, 134 S. Ct. 746 (2014), the Supreme Court recently considered and clarified the requirements for establishing general jurisdiction. The Supreme Court explained that the proper consideration when determining general jurisdiction is “whether that corporation’s ‘affiliations with the State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.’ ” Id. at 761 (quoting Goodyear, 564 U.S. at 919). The Daimler Court rejected the notion that a nonresident defendant is subject to general jurisdiction “in every State in which the corporation engages in a substantial, continuous, and systematic course of business,” finding such an approach “unacceptably grasping.” Daimler, 134 S. Ct. at 761. Rather, the Supreme Court held that for a corporation, “the place of incorporation and principal place of business” are where it is “at home” and thus paradigm bases for jurisdiction. Id. The Daimler Court further stated that it “[did] not foreclose the possibility that in an exceptional case ... a corporation’s operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature to render the corporation at home in that state.” Id. at 762 n. 19. *5 In determining whether a corporation’s affiliations with a state are sufficient to impose general jurisdiction, the inquiry does not turn solely on “the magnitude of the defendant’s in-state contacts.” Id. at 762 n. 20. Rather, a court must appraise the “corporation’s activities in their entirety, nationwide and worldwide.” Id. Following Daimler, the Fifth Circuit has observed that “[i]t is incredibly difficult to establish general jurisdiction in a forum other than the place of incorporation or principal place of business.” Monkton Ins. Servs., Ltd., v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014). “The fact that an entity is registered to do business in a forum State and maintains an agent for service of process in a forum State is insufficient to establish general jurisdiction.” Gulf Coast Bank and Trust Co. v. Designed Conveyor Systems, LLC, No. 16-412, 2016 WL 4939113, at *3 (M.D. La. Sep. 14, 2016) (citing Wenche Siemer v. The Learjet Acquisition Corp., 966 F.2d 179, 183 (5th Cir. 1992) and DNH, L.L.C v. In-N-Out Burgers, 381 F. Supp. 2d 559, 565 (E.D. La. 2005)). Along with advancing similar allegations in its proposed amended complaint, Mercury Rents has submitted evidence that Tiger Industrial maintains systematic and continuous contacts with Louisiana based on: (1) maintaining multiple locations throughout Louisiana (Doc. 21-1 at pp. 21, 35-39, 114);1 (2) maintaining at least three employees at its Sulphur Louisiana location, including a supervisor (Doc. 21-1 at p. 30); (3) transacting business with various Louisiana companies and customers, which accounted for approximately 4% of its total revenue from January-November 2015. (Doc. 21-1 at pp. 17, 33, 50-52); (4) soliciting business from Louisiana customers through Tiger Industrial’s website (Doc. 21-1 at 24-28, 66-71); (5) registering for business in Louisiana and maintaining a registered agent for service in Louisiana (Doc. 21-1 at 52-53, 121); (6) registering its trade name with the Louisiana Secretary of State (Doc. 21-1 at pp. 12-13); (7) paying Louisiana state taxes (Doc. 21-1 at p. 60); and (8) regularly attending LAGCOE, which is a trade show held biannually in Lafayette (Doc. 21-1 at p. 48). Tiger Industrial counters that such contacts are insufficient to establish general jurisdiction in that they simply reflect doing business in Louisiana, which falls short of the “exceptional case” referenced in Daimler. (Doc. 24 at p. 3.) As discussed above, Daimler established the stringent requirements for general jurisdiction, and the factual scenario presented in that case guides the analysis of the instant case. In Daimler, the defendant was a German Corporation sued in California. Daimler, 134 S. Ct. at 750-51. The plaintiffs sought to assert general jurisdiction over defendant Daimler based on alleged “substantial, continuous, and systematic” contacts in California of one of Daimler’s subsidiaries. Id. at 751. The contacts in California included: (1) MBUSA (which was the exclusive importer and distributor of Daimler’s vehicles in the United States); (2) multiple California-based facilities including a regional office, a Vehicle Preparation Center, and a Classic Center; and (3) ten percent of the subsidiary’s United States’ sales and 2.4% of Daimler’s worldwide sales. Id. at 752. The Supreme Court held that these contacts with California, even if deemed to be “continuous” and “systematic,” did not make Daimler “at home” in California such that general jurisdiction was present. Id. at 761-62. *6 Likewise, Tiger Industrial’s contacts with Louisiana, as detailed by Mercury Rents, are not so “continuous and systematic” as to render Tiger Industrial essentially “at home” in Louisiana. Tiger Industrial is a Texas Company with its principal place of business in Beaumont, Texas. As Mr. Mouton attests in his affidavit, “[m]ost of Tiger Industrial’s business is conducted in Texas and it conducts business in other states besides Texas and Louisiana and even in other countries.” (Doc. 21-1 at p. 120.) The evidence presented by Mercury Rents establishes, at best, that Tiger Industrial engages in Case 5:14-cv-02488-EEF-KLH Document 218-6 Filed 06/19/17 Page 4 of 6 PageID #: 2856 Mercury Rents, Inc. v. Crenshaw Enterprises, LLC, Slip Copy (2017) 2017 WL 2380642 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 significant business with Louisiana, but that its overall affiliations with the State of Louisiana fall short of the extremely high bar required by Daimler to establish general jurisdiction. See Daimler, 134 S. Ct. at 760 (rejecting argument that a corporation is at home “in every state in which [it] engages in a substantial, continuous, and systematic course of business”); Namer v. Bank of America, N.A., No. 15-3130, 2016 WL 1089352, at *3-4 (E.D. La. Mar. 21, 2016) (concluding that Bank of America’s contacts with Louisiana-which included providing business and home modification loans and investing in the state’s economy-do not give rise to general jurisdiction under the “exacting requirements” set forth in Daimler); Long v. Patton Hospitality Management, LLC, No. 15-2213, 2016 WL 760780, at *4-6 (E.D. La. Feb. 26, 2016) (concluding that the defendant’s contacts with Louisiana-which included registering to do business in the state, maintaining a registered agent for service, managing a property in the state, paying state and property taxes, and employing nine individuals in the state-failed to show that the defendant was “at home” in Louisiana under Daimler). Mercury Rents has failed to scale Daimler’s “incredibly difficult” hurdle in attempting to establish general jurisdiction over Tiger Industrial, a company incorporated and having a principal place of business in a state other than Louisiana. See Monkton Ins. Servs., 768 F.3d at 432. The undersigned, therefore, concludes that Mercury Rents has failed to make a prima facie showing for the Court to exercise general jurisdiction over Tiger Industrial. Because the Court lacks personal jurisdiction over Tiger Industrial, this action is subject to dismissal under Rule 12(b)(2). C. Motion to Dismiss for Improper Venue Rule 12(b)(3) authorizes a defendant to move for dismissal due to improper venue. Dismissal for improper venue is governed by 28 U.S.C. § 1406. Under this statute, “[t]he 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.” 28 U.S.C. § 1406(a). When challenged, the plaintiff bears the burden to establish that the district he chose is a proper venue. See Vaughn Medical Equipment Repair Service, LLC v. Jordan Reses Supply Co., No. 10-00124, 2010 WL 3488244, at *4 (E.D. La. Aug. 26, 2010). See also Advanced Dynamics Corp. v. Mitech Corp., 729 F. Supp. 519 (N.D. Tex. 1990) (“When an objection to venue has been raised, it is the Plaintiff’s burden to establish that venue is proper in the judicial district in which the action has been brought.”). In deciding a Rule 12(b)(3) motion, the court must accept as true all allegations in the complaint and resolve all conflicts in favor of the plaintiff. Braspetro Oil Services, Co. v. Modec (USA), Inc., 240 Fed.Appx. 612, 615 (5th Cir. 2007). The court may consider extrinsic evidence-including affidavits and other evidentiary materials-in determining whether venue is proper. Ambraco Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009). Venue in this case, where federal jurisdiction is founded solely on diversity of citizenship, is dictated by 28 U.S.C. § 1391(b). This statute provides that a civil action may be brought in the following: (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which the action may otherwise be brought as provided in this subsection, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action. *7 28 U.S.C. § 1391(b). Venue is not proper under either § 1391(b)(1) or 1391(b)(3). Tiger Industrial, the sole defendant in this case, is not a resident of Louisiana. Furthermore, as discussed above, Tiger Industrial is not subject to this Court’s personal jurisdiction, and this action could have been brought in the Eastern District of Texas. With regard to § 1391(b)(2), “the focus of the ‘substantial part of events’ inquiry is on the actions or omissions of the defendant, not on where the plaintiff later feels the economic effects of the injury.” Gray Cas. and Sur. Co. v. Lebas, No. 12-2709, 2013 WL 74351, at *2 (E.D. La. Jan. 7, 2013). In this case, the substantial events occurred in Texas, where the equipment was delivered to Tiger Industrial and where the equipment was possesses and used. The fact that Mercury Rents resides in this district and has suffered economic consequences as a result of Tiger Industrial’s alleged acts or omissions is not an event for purposes of establishing venue. See Gray Cas., 2013 WL 74351 at *3. Mercury Rents, therefore, cannot establish that venue is Case 5:14-cv-02488-EEF-KLH Document 218-6 Filed 06/19/17 Page 5 of 6 PageID #: 2857 Mercury Rents, Inc. v. Crenshaw Enterprises, LLC, Slip Copy (2017) 2017 WL 2380642 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 proper in this district. Pursuant to § 1406, the Court finds that dismissal of this action is appropriate. Tiger Industrial specifically seeks dismissal of this action under Rules 12(b)(2) and 12(b)(3). Mercury Rents, in turn, has not consented to a transfer of this case should the Court determine that it lacks personal jurisdiction over Tiger Industrial and that venue is improper. Accordingly, Tiger Industrial’s Motion to Dismiss (Doc. 8) should be granted. IV. Conclusion Based on the foregoing reasons, the undersigned RECOMMENDS that Tiger Industrial’s Motion to Dismiss (Doc. 8) be GRANTED for lack of personal jurisdiction and improper venue, that Tiger Industrial’s Motion to Transfer Venue (Doc. 8) be DENIED as MOOT, and that Mercury Rent’s Motion for Leave to File First Supplemental, Amended, and Restated Complaint (Doc. 19) be DENIED on the basis that it would be futile. Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties aggrieved by this recommendation have fourteen (14) days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party’s objections within fourteen (14) days after being served with a copy thereof. Counsel are directed to furnish a courtesy copy of any objections or responses to the District Judge at the time of filing. Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in the report and recommendation within FOURTEEN (14) days following the date of its service, or within the time frame authorized by Fed. R. Civ. P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996). THUS DONE AND SIGNED at Lafayette, Louisiana, this 13th day of April, 2017. All Citations Slip Copy, 2017 WL 2380642 Footnotes 1 Stephen Mouton, Tiger Industrial’s general manager, testified that two locations in Sulphur and Shreveport, Louisiana, were maintained by Tiger Industrial and that the remaining locations listed are those of Tiger Industrial’s “sister” companies. (Doc. 21-1 at pp. 25-27, 34-40.) According to Mr. Mouton, Tiger Industrial listed these “sister” locations on it website and in its advertising materials “to encourage clients who may be in that area to call us.” (Doc. 21-1 at p. 27.) End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 5:14-cv-02488-EEF-KLH Document 218-6 Filed 06/19/17 Page 6 of 6 PageID #: 2858 Stanford v. DS Corp. of Indiana, Not Reported in F.Supp.3d (2015) 2015 WL 1623895 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2015 WL 1623895 Only the Westlaw citation is currently available. United States District Court, W.D. Louisiana, Lake Charles Division. Christopher STANFORD, Plaintiff, v. DS CORP. OF INDIANA, et al., Defendants. Civil Action No. 2:15-cv-118. | Signed April 9, 2015. | Filed April 10, 2015. Attorneys and Law Firms Richard C. Dalton, Law Office of Richard C. Dalton, Mandeville, LA, for Plaintiff. Ryan E. Johnson, James C. Percy, Justin J. Marocco, Jones Walker, Baton Rouge, LA, David L. Morgan, Stockwell Sievert et al, Lake Charles, LA, for Defendants. MEMORANDUM RULING PATRICIA MINALDI, District Judge. *1 Before the court are a series of Motions that shall be ruled on collectively due to the interconnectivity of the issues therein. The Motions before the court are as follows: Ron Hoover Marine, Inc .’s (“RHM”) Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue [Doc. 9], CrossRoads RV’s1 (“CrossRoads”) Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue [Doc. 10], and Marine One Acceptance Corporation’s (“Marine One”) Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue [Doc. 13]-all defendants herein. Christopher Stanford (“Stanford”) failed to file a response to any Motion. For the following reasons, RHM’s Motion [Doc. 9] is GRANTED, CrossRoads’ Motion [Doc. 10] is GRANTED, and Marine One’s Motion [Doc. 13] is GRANTED. FACTS & PROCEDURAL HISTORY This dispute arises from RHM’s sale to Stanford of a recreation vehicle (“RV”) on May 27, 2014, in Rockport, Texas.2 CrossRoads is identified as the manufacturer of the RV,3 and Marine One loaned money to Stanford for the purchase of the RV.4 Stanford alleges that the RV he purchased was defective.5 On January 22, 2015, Stanford filed suit against the defendants, asserting a number of causes of action under Texas law as well as a violation of the Moss Warranty Act, 15 USC § 2310(d).6 On March 5, RHM and CrossRoads filed their instant Motions.7 On March 16, 2015, Marine One filed its instant Motion.8 LAW & ANALYSIS When a nonresident defendant brings a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff seeking to invoke the jurisdiction of the district court bears the burden of establishing contacts by the nonresident defendant sufficient to invoke the jurisdiction of the court. See Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.1994). If the court rules on the motion without an evidentiary hearing, the plaintiff may satisfy this burden by making a prima facie showing of jurisdiction; proof by a preponderance of the evidence is not required. See Wilson, 20 F .3d at 648. In reviewing a motion to dismiss for lack of personal jurisdiction, the court will accept the uncontroverted allegations set forth in the complaint as true. See Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir.1999); Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir.1985). Where, as here, the court’s jurisdiction is predicated on diversity of citizenship, the court may exercise jurisdiction over a nonresident defendant if: (1) the forum state’s long-arm statute confers personal jurisdiction over the defendant; and (2) exercise of such jurisdiction comports with due process under the Constitution. See Latshaw, 167 F.3d at 211; D.J. Investments, Inc. v. Metzeler Motorcycle Tire Agent Gregg, Inc., 754 F.2d 542, 545 (5th Cir.1985). The Louisiana long-arm statute authorizes the exercise of jurisdiction over a nonresident defendant as far as is permitted by due process. See LA.REV.STAT. § 13:3201(B). The inquiry, therefore, is whether the exercise of personal jurisdiction over a nonresident defendant comports with federal Case 5:14-cv-02488-EEF-KLH Document 218-7 Filed 06/19/17 Page 1 of 3 PageID #: 2859 Stanford v. DS Corp. of Indiana, Not Reported in F.Supp.3d (2015) 2015 WL 1623895 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 constitutional requirements. See Dalton v. R & W Marine, Inc., 897 F.2d 1359, 1361 (5th Cir.1990). *2 The Supreme Court of the United States has held that due process is satisfied when the defendant: (1) has purposefully availed himself of the benefits and protections of the forum state by establishing “minimum contacts” with the forum state such that he could anticipate being haled into that state’s courts; and (2) the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-76 (1985); International Shoe Co. v.. Washington, 326 U.S. 310, 316 (1945). The court must examine fairness only if the plaintiff first establishes that the nonresident defendant has sufficient minimum contacts with the forum state. See Allred v. Moore & Peterson, 117 F.3d 278, 286 (5th Cir.1997). The “minimum contacts” prong is satisfied when a defendant “purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Burger King, 471 U.S. at 475. The nonresident defendant’s availment must be such that the defendant “should reasonably anticipate being haled into court” in the forum state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). This test “ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts, or of the ‘unilateral activity of another party or a third person.’ “ Burger King, 471 U.S. at 475 (citations omitted). Further, the “minimum contacts” aspect of the analysis can be established through “contacts that give rise to ‘specific’ personal jurisdiction or those that give rise to ‘general’ personal jurisdiction.” Wilson, 20 F.3d at 647. Specific jurisdiction exists when the nonresident defendant’s contacts with the forum state arise from, or are directly related to, the cause of action. See id. (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984)). General jurisdiction exists when a “corporation’s affiliations with the State are so continuous and systematic as to render it essentially at home in the forum State.” Daimler AG v. Bauman, 134 S.Ct. 746, 761 (2014) (internal citations and quotations omitted). A corporation is at home in a state when it is either incorporated there or has its principal place of business there. See Daimler, 134 S.Ct. at 761. I. Specific Jurisdiction The cause of action as alleged in the complaint arises from Stanford’s purchase of an RV in Texas. Stanford signed the sales contract and took delivery of the vehicle in Texas. The complaint contains no allegations of activity in Louisiana. Marine One did not provide financing to Stanford directly; it was assigned the rights from RHM in Texas.9 Therefore, this court does not possess specific personal jurisdiction over any of the named defendants because the cause of action does not arise out of the defendants’ contacts with Louisiana. II. General Jurisdiction *3 The three defendants also assert that they are not subject to general personal jurisdiction in Louisiana. A. Dismissal of RHM RHM is incorporated in Texas and both of its locations are in Texas.10 There is no allegation that RHM possesses a principal place of business anywhere other than Texas. Therefore, the exercise of general personal jurisdiction of RHM in Louisiana is inappropriate. B. Dismissal of CrossRoads CrossRoads is incorporated in Indiana, and its principal place of business is in Indiana.11 CrossRoads has no offices or business operations in Louisiana.12 Therefore, CrossRoads is not subject to general personal jurisdiction in Louisiana. C. Dismissal of Marine One Marine One is a Texas corporation, and its principal place of business is in Texas.13 Jared Morris, Marine One’s Chief Executive Officer, lives in DeRidder, Louisana, and he rents an office there.14 However, no lending operations are conducted from the office space in Louisiana.15 Therefore, Marine One is not at home in Louisiana such that it can be subject to general personal jurisdiction in this state. All Citations Not Reported in F.Supp.3d, 2015 WL 1623895 Footnotes Case 5:14-cv-02488-EEF-KLH Document 218-7 Filed 06/19/17 Page 2 of 3 PageID #: 2860 Stanford v. DS Corp. of Indiana, Not Reported in F.Supp.3d (2015) 2015 WL 1623895 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 1 CrossRoads was incorrectly identified as DS Corp. of Indiana in the complaint. 2 Compl. [Doc. 1] ¶¶ 3, 8. Stanford is a resident of Louisiana. See id. 3 The Complaint does not actually allege that CrossRoads is the manufacturer, but the VIN number identified matches that standard configuration used for recreational vehicles manufactured by CrossRoads. See RHM’s Mot. to Dismiss [Doc. 9-1], at 2 n.3. 4 Compl. [Doc. 1] ¶ 38 5 Id. ¶¶ 16-22. 6 See id. 7 See RHM’s Mot. to Dismiss [Doc. 9] & CrossRoads’ Mot. to Dismiss [Doc. 10]. 8 See Marine One’s Mot. to Dismiss [Doc. 13]. 9 Decl. of Martin Angel [Doc. 15] ¶ 6. 10 Decl. of Christopher Hoover [Doc. 9-2] ¶ 3. 11 Decl. of Michael Kloska [Doc. 10-2] ¶ 3. 12 Id. ¶ 8. 13 Decl. of Martin Angel [Doc. 15] ¶ 3. 14 Id. ¶ 4. 15 Id. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 5:14-cv-02488-EEF-KLH Document 218-7 Filed 06/19/17 Page 3 of 3 PageID #: 2861 Zibari v. International College of Surgeons, Not Reported in F.Supp.3d (2015) 2015 WL 502236 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2015 WL 502236 Only the Westlaw citation is currently available. United States District Court, W.D. Louisiana, Shreveport Division. Gazi B. ZIBARI, M.D. v. INTERNATIONAL COLLEGE OF SURGEONS, et al. Civil Action No. 14-0858. | Signed Feb. 5, 2015. Attorneys and Law Firms James Charles McMichael, Jr., McMichael Medlin et al, Trina Trinhthi Chu, Shreveport, LA, for Gazi B. Zibari, M.D. Magdalen B. Bickford, Jessica Lynn Marrero, Jackson Lewis, New Orleans, LA, for International College of Surgeons, et al. MEMORANDUM RULING ELIZABETH EMY FOOTE, District Judge. *1 Before the Court is a motion to dismiss filed by the Defendants International College of Surgeons (“ICS” or “the College”), Max Downham (“Downham”), Professor Christopher Chen (“Chen”), Professor Adel Ramzy (“Ramzy”), Professor Yik Hong Ho (“Ho”), Professor Clement Chan (“Chan”), Dr. Fidel Ruiz Healy (“Healy”), and Professor Earl Owen (“Owen”). [Record Document 7]. Plaintiff, Dr. Gazi Zibari (“Zibari”), opposes the motion. [Record Document 15]. For the reasons which follow, the motion to dismiss is GRANTED. I. Facts and Procedural Background On March 4, 2014, Zibari filed a “Petition for Temporary Restraining Order, Preliminary Injunctions, Declaratory Relief, and Damages” in the First Judicial District Court in Caddo Parish, Louisiana (the “Petition”).1 Zibari named the College, Downham, Chen, Ramzy, Ho, Chan, Healy and Owen as Defendants.2 The College is a non-profit organization that is organized under the laws of the District of Columbia and has its principal place of business in Chicago, Illinois.3 The College is a private, global organization of surgeons and surgical specialists who meet to promote surgical excellence and foster international fellowship.4 Twenty-two of the College’s 8,000 members are located in Louisiana, and the College receives $2,915 in membership fees from Louisiana.5 The College is not registered to do business, owns no property, and does no advertising in Louisiana.6 Downham is the College’s International Director, and Chen, Ramzy, Owen and Healy have all served as World Presidents of the College.7 Downham is domiciled in Chicago, Illinois; Chen is domiciled in Singapore, Ho and Owen are domiciled in Australia; Ramzy is domiciled in Egypt; Healy is domiciled in Mexico; and Chan is domiciled in Hong Kong.8 None of these individual defendants owns property in Louisiana, has business interests in Louisiana or maintains financial accounts in Louisiana.9 The only individual Defendants who have ever visited the state are Ramzy, who visited for two days in 2010, and Healy, who attended a conference in New Orleans in 2007.10 The Petition alleges that Zibari, who is a transplant surgeon, was the 2013 president of United States Section of the College.11 On October 15, 2012, Zibari emailed several members of the College over his concern about the financial transparency in the organization and the seemingly inappropriate control exerted on the governing members of ICS and the ICS-US by Downham and Chen.12 Several members, including Chen, took offense to the language and tone of Zibari’s email.13 Zibari alleges that as a result of this email, Chen and Downham conspired to expel him from the College by initiating a session of the College’s grievance committee, which Zibari contends was made up of Downham and Chen’s supporters and was conducted in contravention of the College’s governing documents.14 The grievance committee convened in Taiwan, and after a hearing that Zibari did not attend, issued a ruling expelling him from the College.15 On January 15, 2014, Downham requested that Zibari return his ICS membership certificate and other indicia of membership.16 Downham noted in his request to Zibari that the bylaws of the College provide that if the membership indicia is not returned, the College may publish notice of the member’s expulsion in medical publications.17 Zibari argues that he never received any membership indicia, and no publication of the expulsion was ever made.18 Case 5:14-cv-02488-EEF-KLH Document 218-8 Filed 06/19/17 Page 1 of 5 PageID #: 2862 Zibari v. International College of Surgeons, Not Reported in F.Supp.3d (2015) 2015 WL 502236 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 *2 On April 20, 2013, Zibari filed the Petition in state court, seeking a temporary restraining order preventing the Defendants from publishing his expulsion from the College and a preliminary injunction prohibiting the College from proceeding with the publication of the Plaintiff’s expulsion from the College, ordering the Defendants to send a letter publically withdrawing such publication if such publication was already published, ordering the Defendants to rescind the grievance council’s ruling to expel the Plaintiff, ordering a reversal of the expulsion decision, and ordering the reinstatement of the Plaintiff.19 Additionally, the Plaintiff sought damages for “libelous and intentional infliction of mental anguish and emotional distress acts.”20 On March 21, 2014, the Caddo Parish Clerk of Court issued a Long Arm Citation to ICS through its registered agent, Leon Edelman.21 On April 22, 2014, ICS removed the case to this Court .22 On May 20, 2014, Defendants filed the present motion to dismiss Zibari’s claims [Record Document 7]. Zibari opposed the motion to dismiss on June 3, 2014 [Record Document 15]. Defendants replied to Zibari’s opposition on June 10, 2014 [Record Document 16]. II. Motion to Dismiss Standard Defendants have argued that this matter should be dismissed for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5), and failure to state claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6) .23 The Court need not address each of these and will focus its attention on the motion to dismiss on the issue of personal jurisdiction. On a pretrial motion such as this one where no evidentiary hearing is held, the uncontroverted allegations in the Plaintiff’s complaint must be taken as true and any conflicts between facts contained in the parties’ affidavits must be resolved in the Plaintiff’s favor. Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir.1990). Those facts must create for the Plaintiff a prima facie showing of jurisdiction. Travelers Indemnity Co. v. Calvert Fire Ins. Co., 798 F.2d 826, 831 (5th Cir.1986). If the Plaintiff satisfies that minimal standard, he must still prove the jurisdictional facts at trial or through a hearing by a preponderance of the evidence before he may obtain relief on the merits against the non-resident. Id.; Felch v. Transportes Lar-Mex, 92 F.3d 320, 326 (5th Cir.1996). In applying the 12(b)(2) standard to this case, the Court would be remiss if it failed to note that the totality of Zibari’s argument in his opposition to the Defendants’ motion to dismiss consists of urging the Court to deny the motion as moot, based upon Zibari’s concurrently filed motion to amend his complaint and motion to remand.24 Zibari argued that once his motion to amend the complaint was granted, the case would be remanded, and the motion to dismiss would be moot. Unfortunately for the Plaintiff, his motions to amend and remand his complaint were denied by Magistrate Judge Hayes on August 19, 2014.25 *3 Zibari apparently assumed, incorrectly, that his motion to amend and motion to remand would be granted. He deliberately chose not to take advantage of his opportunity to answer the Defendants’ arguments at the time their motion to dismiss was filed. Plaintiff states in his opposition that if the Court intends to judge the motion to dismiss on its merits, he seeks an additional fourteen days to respond. At this late date, the Court will not grant the Plaintiff any additional time to amend his opposition. However, the Court notes that in the six months since the denial of his motions to amend and remand, Plaintiff has not sought leave to amend his opposition. Therefore, the Court will analyze the Defendants’ arguments with the facts as reflected in the record. III. Law and Analysis As this case is before the Court based on the diversity of citizenship between the parties, the Court, under Erie, is bound to apply Louisiana substantive law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). A district court sitting in diversity may exercise personal jurisdiction over Defendants if the Louisiana long-arm statute confers personal jurisdiction over them and if the exercise of personal jurisdiction comports with due process underthe United States Constitution. See Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir.1999). The Louisiana long-arm statute extends the limits of due process, and thus, the Fifth Circuit Court of Appeals has collapsed the usual two-step inquiry into a single question. Alpine View Co. v. Atlas Copco AB. 205 F.3d 208, 215 (5th Cir.2000). The Fifth Circuit found that a court must determine whether the exercise of personal jurisdiction over the Defendants is permissible under the Due Process Clause of the Fourteenth Amendment. Id. The Due Process Clause permits exercising personal jurisdiction over a nonresident defendant if: (1) the defendant has purposefully availed himself of the protections and benefits of the forum state by establishing “minimum contacts” with the state, and (2) the exercise of jurisdiction comports with “fair play and substantial Case 5:14-cv-02488-EEF-KLH Document 218-8 Filed 06/19/17 Page 2 of 5 PageID #: 2863 Zibari v. International College of Surgeons, Not Reported in F.Supp.3d (2015) 2015 WL 502236 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 justice.” id, at 214-15. A. Minimum Contacts The purposeful availment prong of the minimum contacts analysis “ensures that a defendant will not be hailed into a jurisdiction solely as a result of ‘random, fortuitous, or attenuated contacts ... or the unilateral activity of another party or a third person.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). The minimum contacts of a nonresident Defendant may support either general or specific jurisdiction. Allred v. Moore & Peterson. 117 F.3d 278, 286 (5th Cir.1997). i. General Jurisdiction General personal jurisdiction exists when a non-resident Defendant’s contacts with the forum state are substantial, continuous, and systematic. MCR Mktg., LLC, v. Regency Worldwide Serv., LLC., No. 08-1137, at*3, 2009 WL 728523 (W.D.La.03/18/09)(citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-19 (1984)). The “continuous and systematic contacts test is a difficult one to meet, requiring extensive contacts between a defendant and a forum.” Id. (citing Submersible Sys., Inc. v. Perforadora Cent., S.A., 249 F .3d 413, 149 (5th Cir.2002)). “Random, fortuitous, or attenuated contacts are not sufficient to establish jurisdiction.” Id. (citing Moncrief Oil Int’l Inc. v. IAI Gazprom, 481 F.3d 309, 312 (5th Cir.2007)). *4 It is clear from the facts presented above that none of the Defendants has had sufficient contacts with the State of Louisiana for this Court to subject them to personal general jurisdiction in this matter. Therefore, if this Court is to have jurisdiction over the Defendants, it must be specific jurisdiction. ii. Specific Jurisdiction Specific jurisdiction exists when the non-resident Defendant’s contact with theforum state arises from, or is directly related to, the cause of action. MCR Mktg., 2009 WL 728523 at *2. The non-resident Defendant must have “purposefully directed its activities at the forum state, and the litigation results from alleged injuries that arise out of or relate to those activities.” Id. (citing Walk Havdel & Assoc. Inc. v. Coastal Power Prod. Co., 517 F.3d 235, 243 (5th Cir.2008). In sum, for specific jurisdiction to be applied, it must be shown that “(1) there are sufficient (i.e. not random fortuitous or attenuated) pre-litigation connections between the non-resident defendant and the forum; (2) the connection has been purposefully established by the defendant; and (3) the plaintiff’s cause of action arises out of or is related to the defendant’s forum contacts.” Pervasive Software, Inc v. Lexware GmbH & Co. KG, 688 F.3d 214, 221-22 (5th Cir.2012)(internal marks omitted). If a Plaintiff makes the above showing, then the Defendant can defeat specific jurisdiction by showing that “it would fail the fairness test, i.e., that the balance of interest factors show that the exercise of jurisdiction would be unreasonable.” Id. As described above, the individual Defendants have limited, if any, contacts with the State of Louisiana. Only two of the individual Defendants, Ramzy and Healy, have ever visited the state.26 Similarly, the College has only had limited contact with the state, with most of that contact provided by Zibari.27 Moreover, the Plaintiff’s cause of action for the present case was not caused by or related to any of the Defendants’ contact with the State of Louisiana. The Plaintiff’s cause of action stems from the Taiwan grievance hearing which resulted in his expulsion from the College.28 There is no evidence that Zibari’s expulsion was publicized in Louisiana.29 The litigation pending before this Court does not stem from any actions by the Defendants in Louisiana. As such, Plaintiff has failed to allege facts that create personal specific jurisdiction over the Defendants. As the Plaintiff has failed to allege sufficient minimum contact between the Defendants and the State of Louisiana, the Court need not determine whetherthe exercise of jurisdiction comports with fair play and substantial justice. Therefore, the Court finds that the Plaintiff has not met his burden of making a prima facie showing of jurisdiction, and the Defendants’ motion to dismiss shall be GRANTED. IV. Conclusion For the foregoing reasons: IT IS ORDERED that the Defendants’ Motion To Dismiss Plaintiff’s Claims [Record Document 7] is GRANTED, and the complaint is DISMISSED WITHOUT PREJUDICE for lack of personal jurisdiction over any named Defendant. A judgment consistent with the terms of this memorandum ruling shall issue herewith. All Citations Not Reported in F.Supp.3d, 2015 WL 502236 Case 5:14-cv-02488-EEF-KLH Document 218-8 Filed 06/19/17 Page 3 of 5 PageID #: 2864 Zibari v. International College of Surgeons, Not Reported in F.Supp.3d (2015) 2015 WL 502236 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 Footnotes 1 Record Document 1. 2 Id. 3 Record Document 7-1, p. 13. 4 Id. 5 Id. at p. 12. 6 Id. 7 ld. 8 Record Document 7-1, p. 11. 9 Id. at p. 10-11. 10 Id. at p. 11. 11 Record Document 7, p. 2. 12 Record Document 1-1, ¶ 3-4. 13 Record Document 7-1, p. 2-3. 14 Record Document 1-1, ¶ 4-5. 15 Id. at ¶ 11. 16 Id. at ¶ 17. 17 Record Document 7-1, p. 4. 18 Id. 19 Record Document 1-1, pp. 9-10. 20 Id. Case 5:14-cv-02488-EEF-KLH Document 218-8 Filed 06/19/17 Page 4 of 5 PageID #: 2865 Zibari v. International College of Surgeons, Not Reported in F.Supp.3d (2015) 2015 WL 502236 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 21 Id. at p. 5. 22 Record Document 1. 23 Record Document 7, p. 1. 24 Record Document 15, p. 1. 25 Record Document 18. 26 Record Document 7-1, p. 11. 27 Id. at p. 12. 28 Id. 29 Id. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 5:14-cv-02488-EEF-KLH Document 218-8 Filed 06/19/17 Page 5 of 5 PageID #: 2866
