BESS v. PENTZIEN, INC., (E.D.La. 2001)

Edith Brown CLEMENT, U.S.D.J.

Before the Court is defendant Pentzien's Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to Rule 12(b)(2), or alternatively, Motion to Transfer Venue. For the following reasons, the defendant's motion is GRANTED.

On April 12, 2001, plaintiff, Bryant Bess filed suit against his employer Pentzien for damages for the injuries he sustained while working for Pentzien on the M/V CAPTAIN ZED. On July 20, 2001, defendant Pentzien filed a Motion to Dismiss this action for lack of personal jurisdiction pursuant to Rule 12(b)(2); and alternatively, a Motion to Transfer Venue.

Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant can raise the defense of "lack of jurisdiction over the person." Fed.R.Civ.P. (12)(b)(2). "When a nonresident defendant presents a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing the district court's jurisdiction over the nonresident. The court may determine the jurisdictional issue by receiving affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery." Allred v. Moore Peterson, 117 F.3d 278, 281 (5th Cir. 1997) (citation omitted), cert. denied, 118 S.Ct. 691, 139 L.Ed.2d 637 (1998). In determining whether the plaintiff has established a prima facie case of personal jurisdiction, uncontroverted allegations in the complaint must be taken as true. Additionally, all conflicts between the facts contained in the parties' affidavits must be resolved in favor of the plaintiff. Buillion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990).

Federal personal jurisdiction over a non-resident defendant may be asserted if: (1) the law of the forum state provides for the assertion of such jurisdiction; and (2) the exercise of jurisdiction under state law comports with the dictates of the Fourteenth Amendment Due Process Clause. Jobe v. ATR Marketing, Inc., 87 F.3d 751 (5th Cir. 1996). Because Louisiana's long-arm statute extends jurisdiction over nonresidents to the limits allowed by the United States Constitution, the Court must only consider whether its exercise of personal jurisdiction comports with due process. See Dalton v. R W Marine, Inc., 897 F.2d 1359, 1361 (5th Cir. 1990). To satisfy the demands of constitutional due process, two requirements must be met. First, the nonresident must have "purposefully established minimum contacts within the forum State." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985). Second, and only after minimum contacts are deemed sufficient, a court's exercise of personal jurisdiction over the nonresident "must not `offend traditional notions of fairplay and substantial justice. . . .'"Allred v. Moore Peterson, 117 F.3d 278, 281 (5th Cir. 1997) (citation omitted), cert. denied, 118 S.Ct. 691, 139 L.Ed.2d 637 (1998) (quotingFelch v. Transportes Lar-Mex, Sa DE CV, 92 F.3d 320, 323, (5th Cir. 1996)).

The defendant is a Nebraska corporation with its principal place of business in Omaha, Nebraska. The defendant asserts the following facts to show that it does not have minimum contacts with Louisiana: (1) it does not own any property nor does it have any bank accounts in Louisiana; (2) it has not contracted with Louisiana based customers to perform dredge, pipeline or other construction work; (3) it does not advertise in Louisiana, (4) nor has it brought suit in Louisiana. The defendant has had only two contacts with Louisiana in the past ten years. Preceding the accident, the only contact that the defendant claims it had with Louisiana was the installation of a pipeline crossing in East Carroll Parish. This project occurred in 1994 lasting 120 days, 90 of which were in Louisiana. During this period, the defendant maintained a field office in Louisiana and that office was closed upon completion of the project. During the period following the accident in 1999 up to the filing of this lawsuit on April 14, 2001, the defendant claims it performed work in Louisiana for the Corps of Engineers which lasted four days on a project wholly unrelated to the project on which the accident occurred. The plaintiff alleges that these two contacts are sufficient to establish the constitutional requirement of minimum contacts such that the defendant is subject to the jurisdiction of this state.

Minimum contacts are deemed sufficient if the contacts give rise to general or specific jurisdiction. See Allred, 117 F.3d at 289. Specific jurisdiction arises when the cause of action is directly related to or arises from the nonresident defendant's contacts with the forum state.Id. General jurisdiction attaches when the defendant's contacts with the forum state are both continuous and systematic. Helicopteros Nationales de Columbia, S.A. v. Hall, 466 U.S. 408, 417, 104 S.Ct. 1868, 1873, 80 L.Ed.2d 404 (1984).

There is no specific jurisdiction over the defendant. The accident giving rise to this litigation occurred in Oklahoma. Although the plaintiff asserts by affidavit that he currently resides in Louisiana, he did not live in Louisiana at the time of his accident. The defendant is incorporated, with its principal place of business in Nebraska. The M/V CAPTAIN ZED was not under contract to a Louisiana company at the time of the accident. Furthermore, the plaintiff alleges no facts to assert that the defendant had any contacts with Louisiana when his accident occurred that are related to the injuries he sustained. Therefore, the plaintiff cannot use specific jurisdiction to assert personal jurisdiction over the defendant.

The plaintiff relies on general jurisdiction to assert that the defendant is subject to personal jurisdiction in Louisiana. In order to make a prima facie showing of general jurisdiction, the plaintiff must demonstrate evidence that affirmatively shows that the defendant's contacts with Louisiana that are unrelated to this action are sufficient to satisfy due process requirements. Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 217 (5th Cir. 2000). The contacts that the plaintiff asserts the defendant has must be substantial as well as continuous and systematic. See Wilson v. Belin, 20 F.3d 644 649-50 n. 5 (5th Cir. 1994); see Helicopteros, 466 U.S. at 416, 104 S.Ct. 1866. The plaintiff points to two contacts that the defendant had with Louisiana to show that the defendant should be subject to jurisdiction in this state. The plaintiff asserts that the pipeline installation in 1994 and the work for the Corps of Engineers for four days are sufficient to assert personal jurisdiction over the defendant. The only way for Louisiana to obtain jurisdiction over this defendant is if these contacts are substantial, continuous, and systematic.

In Helicopteros, the Supreme Court held that contacts between a Colombian helicopter operator and the state of Texas were insufficient to permit a Texas court to obtain jurisdiction over the Colombian defendant. The contacts in that case were far greater than those present in this case. There, the defendant negotiated a contract in Texas to provide for services that led to a plane crash in Colombia. In addition, the defendant purchased most of its helicopters from a Texas company and sent its pilots and management to Texas for training. Despite these contacts and others, the Supreme Court refused to allow Texas to obtain jurisdiction over the defendant.

Viewing the facts in a light most favorable to the plaintiff, the plaintiff has not made a prima facie showing of personal jurisdiction. The plaintiff's attempts to show that the defendant's two contacts with Louisiana in the past ten years are continuous and systematic does not comport with either the Fifth Circuit's nor the Supreme Court's notion of continuous and systematic contacts. See Submersible Systems, Inc. v. Perforadora Central, S.A. de C.V., 249 F.3d 413 (5th Cir. 2001); Alpine View, 205 F.3d at 217; Helicopteros, 466 U.S. 408. Accordingly, the plaintiff has not demonstrated that the defendant has sufficient minimum contacts with Louisiana to make it subject to the personal jurisdiction of this state.

In addition, the plaintiff asserts jurisdiction under Fed.R.Civ.P. 4. Rule 4 adopts the long arm statute of the state in which the federal court is located. However, a defendant may only be subject to the jurisdiction of Louisiana under its long arm statue to the extent that the exercise of such If jurisdiction comports with due process. As stated, the Court finds that the defendant does not have sufficient minimum contacts with Louisiana to make it subject to suit in accordance with due process.

The plaintiff also states he has not had enough time to prove or disprove the defendant's allegations. The accident occurred in 1999 and the suit was filed in April, 2001. The plaintiff has had adequate time to conduct discovery.

The Court finds that the plaintiff has not met its burden that the defendant has sufficient minimum contacts with Louisiana. As such, the second due process requirement, that a court's exercise of personal jurisdiction over the nonresident must not offend traditional notions of fair play and substantial justice, does not come into play. The fairness element of the due process requirement is only addressed after a court finds that the defendant has sufficient minimum contacts with the forum state. Allred, 117 F.3d at 281.

Accordingly, IT IS ORDERED that the defendant's Motion to Dismiss for Lack of Personal Jurisdiction is GRANTED.