Summary
dismissing plaintiff's claims for lack of personal jurisdiction where plaintiff failed to submit any evidence contradicting the defendant's affidavit
Summary of this case from Lemann v. Midwest Recovery Fund, LLCOpinion
CIVIL ACTION No: 02-2671, SECTION: "J" (5)
December 2, 2002
ORDER AND REASONS
Before the Court are two Rule 12(b)(2) Motions to Dismiss for Lack of Personal Jurisdiction filed by defendants, F.J.B.
Construction Company (Rec. Doc. 3) and Nichols Concrete Equipment Company, Inc. (Rec. Doc. 4). The motions were set for hearing on Wednesday, October 23, 2002. Upon consideration of the briefs and evidence submitted by counsel, the record, and the applicable law, the Court finds that Nicholas Concrete's motion should be GRANTED IN PART and DENIED IN PART. The Court further finds that the entire case should be TRANSFERRED to the United States District Court for the Southern District of Mississippi, pursuant to 28 U.S.C. § 1404(a) 1406(a). As a result, F.J.B.'s motion should be DENIED as MOOT.
BACKGROUND
According to the state court petition, on or about August 16, 2001, the plaintiff, Johnny Harris, was employed as a cement finisher by Lasting Impressions, Inc. ("Lasting Impressions"), a subcontractor on a construction job in Pascagoula, Mississippi. Nichols Concrete Equipment Company, Inc. ("Nichols Concrete") was another subcontractor working on the same construction job. F.J.B. Construction Company ("F.J.B.") was the general contractor and had entered into a contract of indemnity with Nichols Concrete. The petition states that Harris, unexpectedly and without warning, was struck in the head by a boom on a cement truck operated by an employee of Nichols Concrete. This accident caused Harris to suffer injuries to his head, lower back, neck, and left arm.On August 2, 2002, Harris, a Louisiana citizen, filed suit in the Civil District Court for the Parish of Orleans, State of Louisiana, joining the following parties as defendants: Nichols Concrete; Amerisure Insurance Company ("Amerisure"), Nichols Concrete's liability insurer; F.J.B.; and National Fire Insurance Company of Hartford ("National Fire"), F.J.B. "s liability insurer. Pursuant to 28 U.S.C. § 1441 § 1332, the defendants removed the case to this Court on August 29, 2002.
Subsequently, Nichols Concrete and F.J.B. filed the Rule 12(b)(2) motions at issue before the Court. Both Nichols Concrete and F.J.B. allege that they were served with process pursuant to Louisiana's long-arm statute, LA. R.S. § 13:3201. They argue that as nonresident defendants, the Court lacks personal jurisdiction under LA. R.S. § 13:3201, because neither defendant has the requisite minimum contacts, as required by the United States Constitution. Harris responds by arguing that F.J.B. is licensed to do business within Louisiana and was served with process in Louisiana, through its agent for service. Thus, Harris maintains that the Court has personal jurisdiction over F.J.B. Harris further argues that the Court can exercise its supplemental jurisdiction over Nichols Concrete, regardless of whether the Court actually has personal jurisdiction over such defendant. Therefore, the case should proceed before this Court.
Harris agrees that Nichols Concrete was served via Louisiana's long-arm statute.
does not cite a relevant statute or any case law for this proposition. The Court interprets Harris's argument to rely upon the supplemental jurisdiction provisions of 28 U.S.C. § 1367.
DISCUSSION
I. Personal Jurisdiction over Nichols Concrete
"The party who seeks 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." WNS, Inc. v. Farrow, 884 F.2d 200, 203 (5th Cir. 1989). To satisfy this burden, a party need only present a prima facie case of personal jurisdiction. Id. In considering a motion to dismiss for lack of personal jurisdiction, the Court must take as true the uncontroverted allegations in the plaintiff's complaint and must resolve the factual conflicts in the parties' affidavits in plaintiff's favor for purposes of determining whether a prima facie case exists for personal jurisdiction. Id. (quoting D.J. Investments v. Metzeler Motorcycle Tire Agent Gregg, Inc., 754 F.2d 542, 545-46 (5th Cir. 1985)).
In a diversity case with a nonresident defendant, a federal court's jurisdiction over such defendant "extends only to the limits permitted by the long-arm statute of the forum state." Quasha v. Shale Dev. Corp., 667 F.2d 483, 485-86 (5th Cir. 1982). Louisiana's long-arm statute allows a court to exercise personal jurisdiction on any basis that is consistent with the due process clause of the United States Constitution. LA. R.S. § 13:3201(B); Quasha, 667 F.2d at 486. Due process analysis requires a nonresident defendant to have "minimum contacts" with the forum state "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'" Farrow, 884 F.2d at 202 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158 (1945)) (internal quotations omitted)
The minimum contacts of a nonresident defendant can establish either "specific" or "general" jurisdiction. Farrow, 884 F.2d at 202. A court has "specific jurisdiction" where the lawsuit arises out of the defendant's contacts with the forum state. Id. at 202-03. In contrast, "general jurisdiction" exists where the defendant's contacts are "continuous and systematic, " but do not form the basis of the lawsuit.Id. at 202-03 n. 1.
According to its motion, Nichols Concrete is an Alabama corporation with its principal place of business in Alabama. See Rec. Doc. 4, exhibit A. As a nonresident defendant, Nichols Concrete was served with process, via the Louisiana long-arm statute, at its headquarters in Pelham, Alabama. Thus, Harris must make a prima facie showing that personal jurisdiction over Nichols Concrete in Louisiana is constitutional. Under either a "specific" or "general" jurisdictional analysis, Harris fails to submit any evidence to show that Nichols Concrete has the requisite minimum contacts with Louisiana. The only evidence submitted on the issue, an uncontroverted affidavit by a vice president of Nichols Concrete, shows that the company has no contacts with Louisiana sufficient to meet the standards under Louisiana law and the United States Constitution. See Rec. Doc. 4, exhibit A.
Harris's sole argument rests on the principles of supplemental jurisdiction. However, the supplemental jurisdiction provisions found in 28 U.S.C. § 1367 apply only to a federal court's subject-matter jurisdiction. § 1367 is inapplicable to personal jurisdiction analysis, because a court, sitting in diversity, may only exert its jurisdiction over the person of a nonresident party where it is proper under the laws of the forum state and the United States Constitution.Int'l Shoe, 310 U.S. at 316, 66 S.Ct. at 158 (stating that personal jurisdiction over a nonresident defendant must comply with due process standards); LA. R.S. § 13:3201(B). Accordingly, the Court lacks personal jurisdiction over Nichols Concrete.
II. Is Nichols Concrete an Indispensable Party under Rule 19?
The Court must next address whether Nichols Concrete is an indispensable party under Federal Rule of Civil Procedure 19. If the Court determines that Nichols Concrete is indispensable, then the case must be either transferred or dismissed under Rule 19(b) See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962) (holding that a district court may transfer a case where it lacks personal jurisdiction over a defendant).
Rule 19(a) provides that:
A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.
Nichols Concrete clearly must be joined, if feasible, under Rule 19(a) because complete relief cannot be conferred without it. Furthermore, as an alleged tortfeasor, the company has a definite interest in the proceedings and may have to defend itself because F.J.B. refuses to provide an indemnification defense.
Rule 19(b) states that "[i]f a [party] . . . described in [Rule 19(a)] cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable." Rule 19(b) lists the factors a court must consider in making such a determination of indispensability. The factors are:
(1) to what extent a judgment rendered in the party's absence might be prejudicial to the party or those already parties;
(2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided;
(3) whether a judgment rendered in the party's absence will be adequate; and
(4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.Id.
In the instant case, Harris argues that Nichols Concrete and F.J.B. are both liable for the same accident and injuries. There is an issue as to whether F.J.B. must provide an indemnification defense for Nichols Concrete. National Fire, F.J.B.'S insurer, has denied Nichols Concrete's tender of the claim for defense and indemnification on the grounds that the accident was caused by the sole negligence of Nichols Concrete. See Rec. Doc. 7, attachment C. So, Nichols Concrete must be present to at least litigate the issue of indemnity.
Additionally, Harris cannot sue Nichols Concrete's insurer, Amerisure, directly under the Louisiana Direct Action Statute, La. R.S. § 22:655, or under Mississippi law. This is so because § 22:655 permits a plaintiff to sue an insurer directly only where the tort giving rise to the insurer's liability occurred in Louisiana or the insurance policy was issued there. Sprow v. Hartford Ins. Co., 594 F.2d 412, 414 n. 3 (5th Cir. 1979). Neither of these circumstances are present in the instant case. Mississippi law does not provide for a direct action against an insurer under the instant circumstances. Hunt v. Preferred Risk Mut. Ins. Co., 568 So.2d 253, 255 (Miss. 1990)
Taking all of these considerations into account, the Court finds that Nichols Concrete is an indispensable party. Nichols Concrete's interests would be prejudiced if the case were to continue without the company. The remaining parties could not possibly litigate the issue of liability without the presence of Nichols Concrete. Furthermore, if Nichols Concrete were to be sued separately, litigation in two judicial districts would be duplicative. However, if the case is transferred, Harris would have an adequate remedy as the United States District Court for the Southern District of Mississippi is available as a forum to adjudicate his claims against all defendants at the same time.
III. Transfer Under 28 U.S.C. § 1404(a) 1406(a)
It is the clear rule of the Fifth Circuit that under 28 U.S.C. § 1404(a) 1406(a), a district court that lacks personal jurisdiction over a defendant may transfer the entire case to a district where the case might have been brought. Bentz v. Recile, 778 F.2d 1026, 1027 (5th Cir. 1985); Ellis v. Great Southwestern Corp., 646 F.2d 1099, 1107 (5th Cir. 1981); Aguacate Consol. Mines, Inc. v. Deeprock, Inc., 566 F.2d 523, 524-25 (5th Cir. 1978). Under § 1404(a), a case may be transferred in the interests of justice or for the convenience of the parties. Transfer under § 1406(a) is authorized where venue is laid in the wrong district. § 1406(a) has been interpreted to authorize a transfer of a case if the district in which the case is brought does not have personal jurisdiction over a defendant. Goldlawr, Inc. v. Heiman, 369 U.s. 463, 465-67, 82 S.Ct. 913, 915-16 (U.S. 1962).
In the instant case, proper venue and personal jurisdiction exist in the United States District Court for the Southern District of Mississippi. Personal jurisdiction over the defendants can be obtained in Mississippi because Nichols Concrete and F.J.B. committed the alleged.tort within the state. Miss. CODE § 13-3-57. Additionally, the allegedly tortious conduct was a result of the defendants' business dealings within Mississippi. Id. As a result, requiring the defendants to defend the lawsuit in Mississippi complies with the requirements of Mississippi state law and the United States Constitution. Venue would also be proper in that district because a substantial part of the events giving rise to Harris's claims occurred in Pascagoula. 28 U.S.C. § 1391(a)(2) Therefore, because the case could have been brought in the Southern District of Mississippi, transfer of this case to that district is proper. 28 U.S.C. § 1404(a) 1406(a).
Since the Court finds that it lacks personal jurisdiction over Nichols Concrete and the case should be transferred, F.J.B.'s motion to dismiss is moot.
Therefore;
It is HEREBY ORDERED that Nichols Concrete's Motion to Dismiss (Rec. Doc. 4) is GRANTED IN PART, as to the issue of lack of personal jurisdiction, and DENIED IN PART, as to the dismissal of the action.
It is FURTHER ORDERED that F.J.B.'s Motion to Dismiss (Rec. Doc. 3) is DENIED AS MOOT.
It is FURTHER ORDERED that this action be TRANSFERRED to the United States District Court for the Southern District of Mississippi.