Schlesinger v. ES&H, Inc. et al

Filing 38

ORDER AND REASONS denying 16 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Ivan L.R. Lemelle on 8/29/11. (mmv, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARTIN SCHLESINGER

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*
*
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VERSUS
ES&H, INC., ET. AL.

CIVIL ACTION
NO. 11-294
SECTION “B”(2)

ORDER AND REASONS
Defendant

Raymond

Pitts’

Motion

to

Dismiss

for

lack

of

personal jurisdiction pursuant to Rule 12(b)(2) of the Federal
Rules of Civil Procedure,

(Rec. Doc. 16), is DENIED.

Law and Analysis
When resolving a Rule 12(b)(2) motion to dismiss for lack of
personal jurisdiction, a plaintiff must establish the court’s
jurisdiction over the defendant.

Wilson v. Belin, 20 F.3d 644,

648 (5th Cir. 1994).

The plaintiff also bears the burden of

establishing

facie

defendant.

a

prima

case

of

jurisdiction

over

the

Johnson v. Multidata Sys. Int’l Corp., 523 F. 3d 602,

609 (5th Cir. 2008).

A court must accept all factual allegations

as true and resolve any conflicts in favor of the plaintiff.

Luv

N’ Care, 438 F.3d at 469.
After resolving these facts in favor of the plaintiff, the
court may then exercise jurisdiction over a nonresident defendant
only if (1) the long-arm statute of the forum state confers
personal jurisdiction over the defendant; and (2) the exercise of
personal jurisdiction by the forum state is consistent with due
process under the U.S. Constitution.

Seiferth, 472 F.3d at 270.

Since the Louisiana long-arm statute1 is co-extensive with the
limits

of

constitutional

due

process,

the

court

must

decide

whether the exercise of jurisdiction would offend the Due Process
Clause

of

the

Fourteenth

Amendment.

Seatrepid

La.,

LLC

v.

Richard Phillips Marine, Inc., 2009 U.S. Dist. LEXIS 46274, at *9
(E.D.

La.

May

14,

2009).

A

court

may

exercise

personal

jurisdiction over a nonresident defendant if the defendant has
“certain

minimum

contacts

with

[the

forum]

such

that

the

maintenance of the suit does not offend traditional notions of
fair play and substantial justice.
326 U.S. 310, 316 (1945).

Int’l Shoe Co. v. Washington,

International Shoe requires that the

plaintiff (1) establish that the defendant has minimum contacts
with the forum state; and (2) after the minimum contacts have
been

established,

prove

that

maintaining

the

suit

offend notions of fair play and substantial justice.

would

not

Id.

First, Respondent must establish that Movant had minimum
contacts with Louisiana to justify exercising jurisdiction.

The

court must look at the “relationship between the defendant, the
forum, and the litigation.”

Calder, 465 U.S. at 788 (quoting

Shaffer v. Heitner, 433 U.S. 186, 204 (1977)).
elaborated
prong,

for

on

this

specific

standard

stating,

jurisdiction

1

“the

purposes,

The Fifth Circuit
‘minimum
is

contacts’

satisfied

by

The Louisiana long-arm statute states, “[i]n addition to the provisions of
subsection A, a court of this state may exercise personal jurisdiction over a
nonresident on any basis consistent with the constitution of this state and of
the Constitution of the United States.” La. R.S. 13:3201(B)

2

actions, or just a single act, by which the nonresident defendant
‘purposefully

avails’

itself

of

the

privilege

of

conducting

activity within the forum state, thus invoking the benefits and
protections of its laws. The nonresident’s ‘purposeful availment’
must be such that the defendant ‘should reasonably anticipate
being haled into court in the forum state.’”

Ruston Gas Turbines

v. Donaldson Co., Inc., 9 F.3d 415, 419 (5th Cir. 1993).

The

Fifth Circuit further stated that a single act is sufficient to
establish minimum contacts when the cause of action arises from
the contact.

Thompson v. Chrysler Motors Corp., 755 F.2d 1162,

1172 (5th Cir. 1985).
In Brown the Fifth Circuit held that minimum contacts were
established by the defendants placing a long-distance phone call
from

Indiana

defendants

to

Mississippi.

purposefully

Brown

availed

688

themselves

F.2d
of

at
the

333.
laws

The
of

Mississippi because they were aware the plaintiffs were residents
of Mississippi and specifically shared information with the U.S.
attorney in Mississippi to damage the plaintiffs in their home
state.

Id.

The court in Brown stated in addition to foreseeable

consequences, courts must consider the “quantity of contacts, and
the course and connection of the cause of action with those
contacts” to determine whether the defendant’s actions constitute
purposeful availment.

Id.

In Calder v. Jones, the Supreme Court held that California’s
jurisdiction over the nonresident defendants was proper given the
3

defendants tortious actions because the “intentional conduct in
Florida calculated to cause injury to respondent in California.”
Calder, 465 U.S. at 790.

In Calder the defendants wrote and

published a defamatory article about the plaintiff, a California
resident, which was widely circulated in California.
Supreme

Court

“intentional,

upheld
and

jurisdiction

allegedly

because

tortious,

the

actions

Id.

The

defendants

were

expressly

aimed at California. Petitioner . . . wrote and . . . edited an
article they knew would have a potentially devastating impact
upon respondent in this State in which she works and lives.”

Id.

at 789-90.
Movant cites Wallace v. Herron in which the Seventh Circuit
held a plaintiff may not hale a defendant into court solely based
on an intentional tort.
(7th

Cir.

1985).

Wallace v. Herron, 778 F.2d 391, 394

The

plaintiff

attempted

to

exercise

jurisdiction in Indiana over a law firm in California whose only
contact with the state was representing an Indiana couple in
legal proceedings, which were taking place in California.

Id.

The court in Wallace reiterated that the conduct and connection
with

the

forum

state

are

such

that

he

anticipate being haled into court there.

should

reasonably

Id. at 394 (citing

World-Wide Volkswagen Corp., 444 U.S. at 297).
Respondent

has

made

a

prima

face

case

that

Movant

established minimum contacts in Louisiana with respect to the
claims against Movant for conspiracy and extortion.
4

Movant’s

situation is comparable to the defendant in Brown whose only
contact with the forum state was a phone call intended to defame
the plaintiff.
purposes

of

Accepting the following allegations as true for

this

Rule

12

motion,

Movant

conspired

with

top

officials at ES&H who were in Louisiana to extort Respondent into
withdrawing his police report by promising Respondent his job
back.

Brown, 688 F.2d at 333; Luv N’ Care, 438 F.3d at 469;

(Rec. Doc. 19 at 2).

Movant’s single purposeful act, placing the

phone call to ES&H officials, directed at Louisiana is sufficient
to establish minimum contacts in the state.
at 1172.

The alleged assault claim would not on its own lead to

that result.
that

Thompson, 755 F.2d

claim

However, judicial economy warrants resolution of
as

interrelated

to

and

involve

the

same

or

substantially similar facts and witnesses.
Since minimum contacts have been established, the court now
addresses

whether

the

exercise

of

jurisdiction

notions of fair play and substantial justice.
U.S. at 316.

would

offend

Int’l Shoe, 326

The Court stated “[t]he ‘quality and nature’ of a[]

. . . transaction may sometimes be so random . . . that it cannot
be fairly said that the potential defendant ‘should reasonably
anticipate

being

haled

into

court

in

another

jurisdiction.’”

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 485-86 (1985)
(citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,297
(1980)).
between

The
the

Court

defendant

went
and

on

to

the
5

state
forum

that
must

the
such

relationship
that

it

is

reasonable to require the defendant to defend the suit, which is
brought

there.

Id.

The

Court

set

out

five

factors

when

determining whether the relationship between the defendant and
the forum is proper to exercise jurisdiction: (1) the burden on
the defendant; (2) the forum state’s interest in litigating the
dispute;

(3)

the

plaintiff’s

interest

relief;

(4)

the

interstate

in

judicial

obtaining

system’s

effective

interest

in

obtaining the most efficient resolution of the controversy; and
(5) the shared interest of the several states in furthering
fundamental social policies.

Id.

First the court must identify the burden on the defendant,
which

the

Supreme

Court

stated

is

the

primary

concern

when

determining if the relationship between the defendant and the
forum is reasonable to exercise jurisdiction.

Id.

The Fifth

Circuit in Ruston held that having established minimum contacts,
the burden to travel to the forum state was not unreasonable
because the defendant regularly had employees travel to Texas for
business-related activities.
the

burden

unreasonable

on
to

Movant
him

or

to

Ruston, 9 F.3d at 421.
travel

those

he

to

Louisiana

plans

to

call

Similarly,

would
as

not

be

witnesses

because of the likelihood that Movant will be called as a witness
for the other Defendants and will likely have the same witnesses
as other Defendants.

(Rec. Doc. 19 at 8).

It would be equally

burdensome for Respondent to file a claim in Mississippi or
Alabama and since minimum contacts have been established, the
6

interests of the forum and Plaintiff justify imposing burdens on
Movant.

Wien Air Alaska v. Brandt, 195 F.3d 208, 215 (5th Cir.

1999).
Second, the court must determine Louisiana’s interest in
litigating the dispute.

Burger King Corp., 471 U.S. at 485.

The

Fifth Circuit has held that a state has a strong interest in
providing a forum for its residents.

Coats v. Penrod Drilling

Co., 5 F.3d 877, 885 (1993) (“Requiring [a defendant] to defend a
lawsuit in Mississippi would not offend . . . principles [of fair
play

and

substantial

justice].

Plaintiff

is

a

resident

of

Mississippi, and Mississippi has a strong ‘interest in providing
effective means of redress to its residents.’” (quoting McGee v.
Int’l Life Ins. Co., 335 U.S. 220, 223 (1957)); Holt, 801 F.2d at
779-80 (“Maintenance of the suit against [defendant] in Texas
will not offend traditional notions of fair play and substantial
justice. The fact that the injured party is a resident of Texas
provides Texas with a significant interest in providing a forum
for this action.”); Paz v. Brush Engineered Materials, Inc., 445
F.3d 809, 814 (5th Cir. 2006) (“No reason why jurisdiction over
defendant would run afoul notions of fair play or substantial
justice. Mississippi has a substantial interest in protecting its
citizens from injuries from products used within its borders.”).
Here, because Respondent is a resident of Louisiana and claims
that

Movant’s

predominate

tortious

actions

took

place

in

Louisiana, that State has a legitimate interest in providing
7

Respondent a forum in which to litigate his claims.

Exercising

jurisdiction over Movant in Louisiana would not offend notions of
fair play and substantial justice.
Third, the court must determine Respondent’s interest in
obtaining convenient and effective relief.
471 U.S. at 485.

Burger King Corp.,

The Fifth Circuit and other circuits have held

that plaintiffs have a strong interest in obtaining convenient
and effective relief, justifying jurisdiction over a nonresident
defendant.
has

a

See Ruston, 9 F.3d at 421 (“In this case, Donaldson

strong

interest

in

obtaining

convenient

and

effective

relief. The claims Donaldson asserts against Corchran are thirdparty claims arising from Rustons claims against Donaldson in the
same case); Liccilardello v. Lovelady, 544 F.3d 1280, 1288 (11th
Cir. 2008) (“The Florida plaintiff injured by the intentional
misconduct of a nonresident, expressly aimed at plaintiff, is not
required to travel to nonresident’s state to obtain a remedy.”).
In

the

instant

Liccilardello

was

case,

Respondent,

injured

by

the

like

the

plaintiff

in

intentional

misconduct

of

Movant, which was directed at Respondent when he conspired to
extort Respondent.

(Rec. Doc. 19 at 2).

Here, as Movant’s

intentional misconduct was directed at Plaintiff, Plaintiff is
not required to travel to Mississippi or Alabama to obtain a
remedy.

Id.; (Rec. Doc. 19 at 8).

Fourth, the court must determine the interstate judicial
system’s interest in obtaining the most efficient resolution of
8

the controversies.

Burger King Corp., 471 U.S. at 485.

The

Fifth Circuit has held that litigating related claims in a single
forum promotes judicial efficiency.

See Ruston, 9 F.3d at 421.

(“[The] Texas forum brings all parties into one courtroom for a
single resolution.”).

Here, judicial efficiency would be best

served by allowing Respondent to litigate all of his claims in
one

forum

Mississippi

rather
or

than

Alabama

requiring
to

Plaintiff

litigate

to

essentially

travel

to

interrelated

claims against Movant as the other Defendants.
The final issue the court must consider is the interest of
states in furthering substantive social policies.
Corp., 481 U.S. at 485.

Burger King

When determining this, courts take into

consideration the interest of states in the predictability of
jurisdiction
transactions
states.

and
to

allowing

limit

their

citizens
amenability

to
to

structure
suits

in

their
foreign

Bearry v. Beech Aircraft Corp., 818 F.2d 370, 377 (5th

Cir. 1987).

Here, it is important to note that Movant had the

opportunity to limit his transactions with Louisiana, but chose
to interact with the state by allegedly conspiring with the other
Defendants to extort Respondent into withdrawing his complaint by
virtue of the telephone call to ES&H officials as is assumed for
purposes of this Rule 12 motion.
actions

directed

at

Louisiana,

amenability to suit in this state.

9

Because of his intentional
Movant

did

not

limit

his

Movant

established

sufficient

minimum

contacts

with

Louisiana by virtue of his single intentional act directed at
Plaintiff

and

the

forum

state.

Because

sufficient

minimum

contacts by Movant are established, maintenance of this suit does
not offend notions of fair play and substantial justice.

Int’l

Shoe Co., 326 U.S. at 316.
New Orleans, Louisiana, this 29TH day of August, 2011.

________________________________
UNITED STATES DISTRICT JUDGE

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