Johnson v. PPI Technology Services, L.P. et al

Filing 455

ORDER & REASONS: denying 361 Third Party Plaintiff PPI Technology Services, L.P.'S Motion for Summary Judgment on the Contractual Defense and Indemnification Obligations of MOJO Directional Corporation, or in the Alternative, Motion for Entry of Default Judgment against MOJO Directional Corporation; ORDERED that Third Party Plaintiff PPI Technology Services, L.P.'s third party claims against MOJO Directional Corporation is DISMISSED WITHOUT PREJUDICE. Signed by Judge Carl Barbier on 5/13/14. (Reference: 12-1534)(sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHNSON

CIVIL ACTION

VERSUS

NO: 11-2773 C/W
12-1534
APPLIES TO 12-1534

PPI TECHNOLOGY SERVICES, LP
ET AL.

SECTION: “J” (3)

ORDER & REASONS
Before the Court is Third Party Plaintiff PPI Technology
Services,

L.P

Contractual

("PPI")'s

Defense

and

Motion

for

Summary

Indemnification

Judgment

Obligations

on
of

the
MOJO

Directional Corporation, or in the Alternative, Motion for Entry of
Default Judgment against MOJO Directional Corporation (Rec. Doc.
361), MOJO Directional Corporation ("MOJO")'s opposition thereto
(Rec.

Doc.

383),

and

PPI

and

MOJO's

supplemental

memoranda

regarding this Court's personal jurisdiction over MOJO. (Rec. Docs.
449 & 450). The motion was set for hearing on March 26, 2014, on
the briefs. Having considered the motions and memoranda of counsel,
the record, and the applicable law, the Court finds, for the
reasons set forth more fully below, that PPI's third party claims
against MOJO should be dismissed for lack of personal jurisdiction
and that PPI's motion for summary judgment must be DENIED AS MOOT.

1

FACTS AND PROCEDURAL HISTORY
The Court has, on several occasions, summarized the underlying
complaints in this matter wherein it is alleged that Nigerian
gunmen boarded the HIGH ISLAND VII, a jack-up drilling rig located
off the coast of Nigeria, and attacked certain members of the crew.
Two

of

the

directional

drilling

supervisors

on

the

rig,

consolidated plaintiffs James Johnson ("Johnson") and Robert Croke
("Croke"), both allege that they suffered injuries as a result of
the attack.1
As a result of the attack on the HIGH ISLAND VII, Johnson
filed suit in November 2011, and Croke subsequently filed a
separate

complaint

in

June

2012

that

was

consolidated

with

Johnson's suit.2 In PPI's answer to Croke's complaint, which was
filed on January 24 2013, PPI tendered Croke's alleged employer,
Vagabond Services, Ltd. ("Vagabond"), as a defendant pursuant to
Federal Rule of Civil Procedure 14(c) and asserted a Third Party
Complaint against Vagabond based on its alleged contractual duty to
defend and indemnify PPI. (Rec. Doc. 138) Then, on May 3, 2013, PPI
tendered MOJO as a Defendant pursuant to Federal Rule of Civil
Procedure 14(c) and also filed a Third Party Complaint against MOJO
1

For a more thorough summary of the facts, see this Court's Order and
Reasons dated March 6, 2014. (Rec. Doc. 364)
2

Croke's suit was recently dismissed in its entirety when the Court
granted PPI's motion for summary judgment. (Rec. Doc. 364) PPI contends, at
least implicitly by continuing to pursue the instant motion for summary
judgment, that the Third Party Complaint currently at issue is still a live
claim, however.

2

alleging that MOJO had a contractual duty to defend and indemnify
PPI under the terms of a Consulting Agreement between PSL, Ltd.
("PSL") and MOJO. (Rec. Doc. 202)

MOJO was served with summons on

July 18, 2013. Following an extension of time to file responsive
pleadings, MOJO filed a motion to dismiss for lack of jurisdiction
on October 8, 2013. (Rec. Doc. 273) Having been faced with similar
motions in this action, the Court denied MOJO's motion without
prejudice and granted a 45-day period to conduct limited discovery
on jurisdiction. (Rec. Doc. 282)

Following the discovery period,

MOJO never re-urged its motion; however, in accordance with the
Court's scheduling order, MOJO filed its witness and exhibit lists
on February 3, 2014 (Rec. Doc. 328). Additionally, MOJO filed a
motion to sever that was granted (Rec. Docs. 356 & 394) and

a

motion to dismiss the Rule 14(c) tender that was dismissed as moot
following this Court's dismissal of Croke's claims. (Rec. Docs. 358
& 394)
PPI filed the instant motion for summary judgment on February
25, 2014. (Rec. Doc. 361) In its response to the motion, MOJO
argues that entry of a default judgment would be improper because
the Court lacks personal jurisdiction over it. Finding that the
personal jurisdiction issue is ripe for resolution, the Court
ordered additional briefing to address the issue. (Rec. Doc. 390)
On April 25, 2014, both MOJO and PPI filed additional briefs on
this issue, and the Court took the issue under advisement. After a

3

review of the parties' memoranda, and for the reasons set forth
more fully below, the Court finds that the it does not have
personal jurisdiction over MOJO in the instant matter.3
LEGAL STANDARD & DISCUSSION
The party seeking to invoke the power of the court bears the
burden of proving that jurisdiction exists. Wyatt v. Kaplan, 686
F.2d 276, 280 (5th Cir.1982). The plaintiff need not, however,
establish jurisdiction by a preponderance of the evidence; a prima
facie showing suffices. Id. This court must resolve all undisputed
facts submitted by the plaintiff, as well as all facts contested in
the affidavits, in favor of jurisdiction. Id. Courts in the Fifth
Circuit apply the following standard, set forth in Luv N’ Care,
Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006), when
determining whether personal jurisdiction exists:
The Due Process Clause of the Fourteenth Amendment
guarantees that no federal court may assume jurisdiction
in personam of a non-resident defendant unless the
defendant has meaningful “contacts, ties, or relations”
with the forum state. Int’l Shoe Co. v. Washington, 326
U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
Jurisdiction may be general or specific. Where a
defendant has “continuous and systematic general business
contacts” with the forum state, Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 415, 104 S.Ct.

3

Though the Court may not dismiss a claim sua sponte for want of
personal jurisdiction, it may raise the issue and subsequently dismiss a claim
as long as it gives "the parties an opportunity to present their views on the
issue." Lipofsky v. New York State Workers Comp. Bd., 861 F.2d 1257, 1258
(11th Cir. 1988); see also Gonzales v. Lew Sterrett Dallas Cnty. Jail, 081510, 2008 WL 4921428, *3 (N.D. Tex. Nov. 13, 2008)

4

1868, 80 L.Ed.2d 404 (1984), the court may exercise
“general” jurisdiction over any action brought against
that defendant. Id. at 414, 104 S.Ct. 1868 n. 9. Where
contacts are less pervasive, the court may still exercise
“specific” jurisdiction “in a suit arising out of or
related to the defendant’s contacts with the forum.” Id.
at 414, 104 S.Ct. 1868 n. 8.
Luv N’ Care, Ltd., 438 F.3d at 469 (footnotes omitted). PPI asserts
that both general and specific jurisdiction exist; therefore, both
will be discussed below.
A. General Jurisdiction
General jurisdiction is difficult to establish. Johnston v.
Multidata Sys. Int'l Corp., 523 F.3d 602, 610 (5th Cir. 2008). The
Fifth Circuit recently described the types of contacts required to
establish general jurisdiction:
General jurisdiction can be assessed by evaluating
contacts of the defendant with the forum over a
reasonable number of years, up to the date the suit was
filed.” Access Telecom, Inc. v. MCI Telecomms. Corp., 197
F.3d 694, 717 (5th Cir.1999) (citation omitted). The
contacts must be reviewed in toto, and not in isolation
from one another. Holt Oil & Gas Corp. v. Harvey, 801
F.2d 773, 779 (5th Cir.1986); see also Religious Tech.
Ctr., 339 F.3d at 374 (citations omitted) (“None of the
activities individually constitutes a substantial or
meaningful contact with Texas, Texas law, or Texas
residents, and certainly considered in toto they fail to
amount to continuous and systematic contact with Texas
such that general jurisdiction is created.”). But vague
and overgeneralized assertions that give no indication as
to the extent, duration, or frequency of contacts are
insufficient to support general jurisdiction. See
Gardemal v. Westin Hotel Co., 186 F.3d 588, 596 (5th
Cir.1999).
Johnston, 523 F.3d at 610.

5

PPI asserts that this Court has general jurisdiction over MOJO
because: (1) MOJO held itself out as an entity that conducts
business in the United States on its website and on its Facebook
page, (2) MOJO's president and and vice-president traveled to the
United States on behalf of MOJO and in connection with the Nigerian
drilling project at issue in this litigation, (3) MOJO was party to
a loan agreement whereby it allowed its United States entity ("Mojo
U.S.") to use a MOJO vehicle in the United States, and (4) MOJO
entered into an ongoing contractual relationship with Gardes Energy
Services, Inc. ("Gardes"), a Louisiana company, whereby MOJO would
supply support services for Gardes' projects, and that relationship
is governed by Louisiana law.
PPI cites to no case law to establish that such contacts would
be considered "systematic and continuous" so as to create general
jurisdiction. Moreover, the contacts on which PPI relies largely
occurred outside of Louisiana.

The websites referred to never

mention Louisiana. (Exh. A., Rec. Doc. 449-1) The meeting in the
United States with MOJO's president and vice-president occurred in
Texas, not Louisiana. (Exh. C., Rec. Doc. 449-3, p. 3, lns. 12-13)
The "Mojo U.S." vehicle to which PPI refers is also in Texas. (Exh.
C., Rec. Doc. 449-3, p. 4, ln. 17) As to MOJO's relationship with
Gardes, it appears that this is just one contract, with one entity,
over a relatively short period of time.

There is no indication

that MOJO has set up an office in Louisiana, started using bank

6

accounts in Louisiana, appointed an agent for service of process in
Louisiana, or taken any other action consistent with a finding of
general jurisdiction. See Johnston, 523 F.3d at 614. Rather, it
appears that, at the very most, MOJO is doing some business with
Louisiana, but not in Louisiana, which is simply not sufficient to
create general jurisdiction. Id. at 611.
B. Specific Jurisdiction
To establish specific jurisdiction:
A federal court may satisfy the constitutional
requirements for specific jurisdiction by a showing that
the defendant has “minimum contacts” with the forum state
such that imposing a judgment would not “offend
traditional notions of fair play and substantial
justice.” Int’l Shoe, 326 U.S. at 316, 66 S.Ct. 154. In
Nuovo Pignone v. STORMAN ASIA M/V, 310 F.3d 374 (5th
Cir.2002), we consolidated the personal jurisdiction
inquiry into a convenient three-step analysis: “(1)
whether the defendant ... purposely directed its
activities toward the forum state or purposely availed
itself of the privileges of conducting activities there;
(2) whether the plaintiff’s cause of action arises out of
or results from the defendant’s forum-related contacts;
and (3) whether the exercise of personal jurisdiction is
fair and reasonable.” Id. at 378 (citing Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85
L.Ed.2d 528 (1985)). The forum state may create, and this
court would be bound to apply, additional jurisdictional
restrictions by statute, Adams, 220 F.3d at 667, but
Louisiana’s “long-arm” statute extends jurisdiction to
the constitutional limit, La. R.S. 13:3201(B), so the two
inquiries in this case fold into one.
Luv N’ Care, Ltd., 438 F.3d at 469 (footnotes omitted).
MOJO asserts that specific jurisdiction does not exist because
it has not purposefully availed itself of the laws of Louisiana and
because PPI's cause of action does not arise out of any forum7

related contacts. MOJO points out that the instant claims arose out
of: (a) a hostage incident that occurred off the coast of Nigeria,
and (b) an indemnity contract between PSL, a Belizean entity, and
MOJO, a Canadian entity. Therefore, MOJO argues, it is clear that
MOJO

did not purposefully avail itself of the laws of Louisiana.

Further, MOJO contends that it does not have sufficient minimum
contacts with Louisiana. In support of this contention, MOJO offers
the following:
•

MOJO provides services in international oil fields,
not U.S. oil fields (Exh. 4, Rec. Doc. 450-4, p. 2,
lns. 20-25)

•

MOJO does not maintain or operate any office in the
U.S. (Exh. 5, Rec. doc. 450-5, p. 7)

•

MOJO does not maintain a bank account or an similar
financial service in the U.S. (Exh. 5, Rec. doc.
450-5, p. 5)

MOJO further avers that

at best, its only contact with

Louisiana is the Gardes Agreement, which has no connection to
Croke, Johnson, PPI, or any of the issues and claims in the instant
matter.
Despite MOJO's contentions to the contrary, PPI contends that
specific jurisdiction exists because the instant claims are breach
of contract claims relating directly to litigation that is in this
Court.

Specifically,

MOJO

breached

its

alleged

contractual

obligation to indemnify PPI after suit was filed in Louisiana.
Further, PPI argues that MOJO purposefully availed itself of the
laws of Louisiana when it entered into the Gardes Agreement because
8

that agreement contains a clause requiring all claims to be brought
in Louisiana courts.
Based on the evidence presented, it is abundantly clear that
specific jurisdiction does not exist. MOJO's only connection with
Louisiana is the Gardes Agreement; and even assuming for the moment
that this contact constitutes sufficient minimum contacts, that
agreement is wholly unrelated to the instant claims, and PPI does
not offer any support for its theory that MOJO's signing an
agreement with an unrelated entity that includes a forum selection
clause confers personal jurisdiction over MOJO in Louisiana in
unrelated actions. Therefore, the Court finds that the fact that
MOJO agreed to litigate issues with Gardes in Louisiana is not a
sufficient basis to find specific jurisdiction over MOJO in this
action. Accordingly, as there is no other evidence that MOJO has
any other contact with Louisiana , the Court finds that specific
jurisdiction does not exist over MOJO in connection with the
instant litigation.4
Accordingly,
IT IS ORDERED that Third Party Plaintiff PPI Technology

4

The Court notes that MOJO provided briefing concerning the Court's
personal jurisdiction over Vagabond as well. While the evidence presented
indicates that personal jurisdiction is unlikely to exist over Vagabond, the
Court may not rule on that issue because the order regarding supplemental
briefing only requested briefs concerning MOJO, and PPI followed that order
and only presented argument concerning MOJO. Therefore, as notice and an
opportunity to be heard is required prior to dismissal for personal
jurisdiction, the Court declines to rule on the issue of personal jurisdiction
as it relates to Vagabond. See Lipofsky, 861 F.2d at 1258.

9

Services,

L.P.'s

third

party

claims

against

MOJO

Directional

Corporation is DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that PPI's Motion for Summary Judgment
(Rec. Doc. 361) is DENIED AS MOOT.
New Orleans, Louisiana this 13th day of May, 2014.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

10