Herman et al v. Cataphora, Inc. et al

Filing 29

ORDER & REASONS that Defendants Cataphora, Inc. and Roger Chadderdon's 13 MOTION to Dismiss for Lack of Jurisdiction and Improper Venue is GRANTED. FURTHER ORDERED that this matter is transferred to the U.S. District Court for th e Northern District of California. FURTHER ORDERED that the 15 MOTION to Strike 6 Amended Complaint, 1 Complaint Pursuant to Louisiana's Anti-SLAPP Statute filed by Cataphora, Inc. is DENIED AS MOOT. Signed by Judge Eldon E. Fallon on 9/19/12. (Attachment(s): # 1 Transfer Letter) (dno, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

RUSS M. HERMAN

*
*
*
*
*

VERSUS
CATAPHORA, INC.

CIVIL ACTION
NO. 12-497
SECTION “L” (2)

ORDER & REASONS
Before the Court are Defendants Cataphora, Inc. and Roger Chadderdon's (collectively
"Cataphora") Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue Pursuant
to Fed. R. Civ. P. 12(b)(2) and 12(b)(3) (R. Doc. 13), and Cataphora's Special Motion to Strike
Pursuant to Louisiana Anti-SLAPP Statute (R. Doc. 15). For the following reasons, IT IS
ORDERED that Cataphora's Motion to Dismiss is GRANTED. IT IS FURTHER ORDERED
that this matter is transferred to the U.S. District Court for the Northern District of California. IT
IS FURTHER ORDERED that Cataphora’s Motion to Strike is DENIED AS MOOT.
I.

BACKGROUND
The present matter arises from alleged defamation and interference with prospective

advantage following a contract dispute and litigation which are tangential to another case before
this Court, MDL 2047, In re Chinese Drywall Products Liability Litigation. Plaintiffs Russ M.
Herman and Arnold Levin are, respectively, the Court-appointed Liaison Counsel and Lead
Counsel for the Plaintiffs' Steering Committee (the "PSC") in MDL 2047. Defendant Cataphora,
Inc. is a California corporation that provides litigation support and document retrieval services.
Defendant Roger Chadderdon is a principal of Cataphora. From April to June 2009, Cataphora
sought to provide its litigation services to a number of major parties in MDL 2047, including the

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MDL plaintiffs represented by the PSC.
The PSC and Cataphora eventually entered into negotiations for Cataphora to provide
litigation support services to the PSC in MDL 2047. Throughout the months of August and
September 2009, the parties negotiated and drafted contract terms. On October 6, 2011, the PSC
and Cataphora finally entered into a contract, but because of a provision included in the contract
by Cataphora which the PSC opposed, the PSC terminated the contract.
Accordingly, Cataphora filed suit against the PSC for breach of contract in the U.S.
District Court, Northern District of California. On September 19, 2011, Cataphora obtained a
judgment against the PSC, including attorneys' fees and interest. The PSC is currently appealing
the case to the Ninth Circuit Court of Appeals.
Following entry of the judgment, Mr. Chadderdon made a series of statements about the
breach of contract litigation which were published on the internet website, Above the Law, at
abovethelaw.com, on or about September 26, 2011. In addition, it is alleged that Mr.
Chadderdon contacted Liaison Counsel for the Defendants' Steering Committee (“DSC”) in
MDL 2047, offering to provide insight about the PSC and its litigation strategies.
On February 23, 2012, Plaintiffs filed suit against Cataphora in this Court alleging
defamation and interference with prospective advantage arising from Chadderdon’s statements to
Above the Law and the DSC. (R. Doc. 1). Plaintiffs seek from Cataphora compensatory and
punitive damages, interest, attorneys' fees, and costs. See id. On February 28, 2012, Plaintiffs
filed a First Amended Complaint. (R. Doc. 6).
Sometime after the filing of the Complaint, the present matter was transferred and
consolidated with MDL 2047. See (R. Docs. 5, 7). Cataphora filed a motion seeking to have the

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case de-consolidated from the MDL litigation and transferred back to the Section to which it was
originally allotted. The Court held a hearing on this motion and ordered that the case be deconsolidated from the MDL but that the case remain before Judge Fallon.
On June 5, 2012, Cataphora filed the present motions, which were heard by the Court on
oral argument. The Court now issues its summary, analysis, and rulings on the motions.
II.

CATAPHORA'S MOTION TO DISMISS FOR LACK OF PERSONAL
JURISDICTION & IMPROPER VENUE PURSUANT TO FED. R. CIV. P.
12(B)(2) & 12(B)(3)
A.

Present Motion
1.

Cataphora's Motion

Cataphora filed the present Motion, first, seeking dismissal for lack of personal
jurisdiction in the Eastern District of Louisiana, and second, arguing that venue is improper in
the Eastern District, also requiring dismissal, or alternatively, transfer to the Northern District of
California. According to Cataphora, it lacks the requisite minimum contacts with Louisiana for
personal jurisdiction and none of the events giving rise to this litigation occurred in the Eastern
District of Louisiana.
2.

Plaintiffs' Response

Plaintiffs filed a Response in opposition to Cataphora's Motion. (R. Doc. 19). Plaintiffs
first argue that personal jurisdiction is proper in Louisiana because: Mr. Herman is a Louisiana
resident; Plaintiffs have been appointed to leadership positions on the PSC in MDL 2047
pending in this District; the defamatory statements concern Plaintiffs' activities in MDL 2047;
Plaintiffs' careers are centered around cases pending in the Eastern District of Louisiana;
Cataphora vigorously pursued a contract with the PSC in Louisiana; and Cataphora knew that the

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comments would cause harm in Louisiana to both Plaintiffs and class members in the settlement
agreements in MDL 2047.
Second, Plaintiffs argue that venue is proper in the Eastern District of Louisiana because:
Mr. Herman resides in this district; both Plaintiffs have executive appointments in MDL 2047 in
this district; and a substantial number of events and occurrences giving rise to the claims were
targeted at and occurred in this district.
3.

Cataphora's Reply

Cataphora filed a Reply in further support of its Motion. (R. Doc. 22-2). Cataphora
argues that Plaintiffs fail to meet even a prima facie showing of personal jurisdiction, especially
since Plaintiffs have failed to supply affidavits or conduct discovery. Cataphora next argues
there exists no basis for the exercise of personal jurisdiction because the forum is not the focal
point of the subject statements and extraneous facts raised by the PSC in its briefing cannot be
considered in this inquiry.
With these arguments in mind, the Court first turns to Cataphora’s personal jurisdiction
challenge.
B.

Personal Jurisdiction
1.

Standard of Review

Federal Rule of Civil Procedure 12(b)(2) provides a right to dismissal of claims against a
defendant when personal jurisdiction is lacking. “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.” Stuart v. Spademan, 772 F.2d 1185, 1192
(5th Cir. 1985) (citing Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir.

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1985)). “The court may determine the jurisdictional issue by receiving affidavits,
interrogatories, depositions, oral testimony, or any combination of the recognized methods of
discovery.” Id.
When a court hears a Rule 12(b)(2) motion without an evidentiary hearing, the plaintiff
need only present a prima facie case of personal jurisdiction. See Walk Haydel & Assocs., Inc. v.
Coastal Power Prod. Co., 517 F.3d 235, (5th Cir. 2008). Ultimately, however, “the plaintiff
must show by a preponderance of the evidence that jurisdiction is proper.” Id. (citing Brown v.
Slenker, 220 F.3d 411, 419 (5th Cir. 2000). Here, the Court is not conducting an evidentiary
hearing, so Plaintiffs need only present a prima facie case of personal jurisdiction.
2.

Applicable Law

It is axiomatic under Fifth Circuit law that a federal district court sitting in diversity may
exercise personal jurisdiction over a foreign defendant if: (1) the long-arm statute of the forum
state creates personal jurisdiction over the defendant; and (2) the exercise of personal jurisdiction
is consistent with the Due Process Clause of the United States Constitution. Clemens v.
McNamee, 615 F.3d 374, 377 (5th Cir. 2010) (citing Latshaw v. Johnston, 167 F.3d 208, 211
(5th Cir. 1999)); Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 270 (5th Cir. 2006)
(citing Mink v. AAA Dev. LLC, 190 F.3d 333, 335 (5th Cir. 1999)); Paz v. Brush Engineered
Materials, Inc., 445 F.3d 809, 812 (5th Cir. 2006) (quoting Allred v. Moore & Peterson, 117
F.3d 278 (5th Cir. 1997)); Ouazzani-Chahdi v. Greensboro News & Record, Inc., 200 Fed.
App’x 289, 291 (5th Cir. 2006) (citing Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002));
Ruston Gas Turbines, Inc. v. Donaldson Co., Inc., 9 F.3d 415, 418 (5th Cir. 1993).
Because the forum here is Louisiana, the first element of personal jurisdiction requires

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that the Louisiana long-arm statute be satisfied. However, because “‘the limits of the Louisiana
Long-arm Statute and the limits of constitutional due process are now coextensive . . . under the
express wording of the present Long-Arm Statute, the sole inquiry into the jurisdiction over a
nonresident is a one-step analysis of the constitutional due process requirements.’” Alonso v.
Line, 2002-2644 (La. 5/20/03); 846 So. 2d 745. 750 (quoting Ruckstuhl v. Owens Corning
Fiberglas Corp., 98-1126 (La. 4/13/99); 731 So. 2d 881, 885)). Thus, the Court will move on to
the second prong of the personal jurisdiction test under the Due Process Clause.
“The Due Process Clause ‘operates to limit the power of a State to assert in personam
jurisdiction over a nonresident defendant.’” Ouazzani-Chahdi, 200 Fed. App’x at 291 (quoting
Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 413-14 (1984)); Asahi Metal
Indus. Co., Ltd. v. Superior Court of Ca., 480 U.S. 102, 109 (1986); World Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286 (1980) (citing Kulko v. Ca. Superior Court., 436 U.S. 84, 91
(1978)). Due process permits a court to exercise personal jurisdiction over a foreign defendant
only when: (1) that defendant has purposefully availed himself of the benefits and protections of
the forum state by establishing minimum contacts with the forum state; and (2) the exercise of
jurisdiction over that defendant does not offend traditional notions of fair play and substantial
justice. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Paz, 445 F.3d at 813 (quoting
Panda Brandywine Corp. v. Potomac Elec. Power Corp., 253 F.3d 865, 867 (5th Cir. 2011));
Clemens v. McNamee, 615 F.3d 374, 377 (5th Cir. 2010) (citing Revell v. Lidov, 317 F.3d 467,
470 (5th Cir. 2002)); Ouazzani-Chahdi, 200 Fed. App’x at 291 (quoting Revell, 317 F.3d at 470);
Ruston Gas Turbines, Inc., 9 F.3d at 418 (citing Int’l Shoe Co., 326 U.S. at 316)). The limits of
the Due Process Clause "have been substantially relaxed over the years . . . largely attributable to

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a fundamental transformation in the American economy." World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 292-93 (1980) (internal citations omitted). The Court will now address
the due process requirements--minimum contacts and fairness--in turn.
“The ‘constitutional touchstone’ of the inquiry to determine if personal jurisdiction can
be exercised is whether the defendant ‘purposefully established minimum contacts in the forum
state.’” Seifarth, 472 F.3d at 271 (quoting Asahi Metal Ind. Co. v. Super. Ct., 480 U.S. 102, 10809 (1987)); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985) (citing Int'l Shoe, 326
U.S. at 316). There exist two types of minimum contacts: those that give rise to specific
personal jurisdiction and those that give rise to general jurisdiction. Clemens v. McNamee, 615
F.3d 374, 377 (5th Cir. 2010)(citing Wilson v. Belin, 20 F.3d 644, 647 (5th Cir. 1994)); Seifarth,
472 F.3d at 271; Revell v. Lidov, 317 F.3d 467, 470 (5th Cir. 2002); Ruston Gas Turbines, Inc., 9
F.3d at 418. Only specific personal jurisdiction is alleged by Plaintiffs. See (R. Doc. 19).
Specific jurisdiction exists when “the defendant has ‘purposefully directed’ his activities at
residents of the forum . . . and the litigation results from alleged injuries that arise out of or relate
to those activities.’” Clemens v. McNamee, 615 F.3d 374, 377 (5th Cir. 2010) (quoting Burger
King v. Rudzewicz, 471 U.S. 462, 472 (1985)); Seifarth, 472 F.3d at 271 (quoting Nuovo
Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374, 378 (5th Cir. 2002)).
“The non-resident’s purposefully directed activities in the forum must be such that he
could reasonably anticipate being haled into court in the forum state.” Id.(quoting Burger King,
471 U.S. at 474). “Specific jurisdiction also requires a sufficient nexus between the nonresident’s contacts with the forum and the cause of action.” Id. at 378-79 (citing Helicopteros
Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984)). “It is essential that there

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be some act by which the defendant purposefully avails himself of the privilege of conducting
activities with the forum state, thus invoking the benefits and protections of its laws.” Id. at 379
(citing Hanson v. Denckla, 357 U.S. 235, 253 (1958)). “The ‘purposeful availment’ requirement
ensures that a defendant will not be hauled into a jurisdiction solely as a result of random,
fortuitous, or attenuated contacts.” Id. (citing Burger King, 471 U.S. at 472). “A single act by
the defendant directed at the forum state, therefore, can be enough to confer personal jurisdiction
if that act gives rise to the claim being asserted.” Ruston Gas Turbines, Inc., 9 F.3d at 419.
3.

Personal Jurisdiction in the Defamation Context

There exists a body of jurisprudence specifically involving personal jurisdiction in the
context of defamation-related claims. The Court will now summarize these cases to put the
present matter in perspective.
The seminal defamation-related case on personal jurisdiction over a foreign defendant is
the Supreme Court’s decision in Calder v. Jones, 465 U.S. 783 (1984). Calder involved
allegations of libel in a California forum brought by a celebrity plaintiff against a national
magazine and certain of the magazine’s employees responsible for the allegedly libelous article.
See id. Plaintiff worked and lived in California. Id. at 785. The defendant magazine was a
Florida corporation with nationwide circulation of over five million, six-hundred thousand
copies of which were sold in California. Id. The defendants who objected to personal
jurisdiction in California were a reporter employed by the magazine and the president/editor of
the magazine, both of whom were specifically involved with the subject article. See id. The
reporter had the following contacts with California: (1) he frequently traveled to California on
business, (2) he made phone calls to sources in California for most of the information in the

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article, and (3) before publication, he called plaintiff's home and read the article to her husband
to elicit comments. See id. at 785-86. The president/editor had the following contacts with
California: (1) he had been to California twice, both times unrelated to the subject article, (2) he
oversaw, reviewed, approved, and edited the subject article, and (3) he declined to print a
retraction to the article. See id. at 586. With regard to these contacts with California, the Court
concluded:
The allegedly libelous story concerned the California activities of a California resident.
It impugned the professionalism of an entertainer whose television career was centered in
California. The article was drawn from California sources, and the brunt of the harm, in
terms both of respondent’s emotional distress and the injury to her professional
reputation, was suffered in California. In sum, California is the focal point both of the
story and of the harm suffered. Jurisdiction over petitioners is therefore proper in
California based on the ‘effects’ of their Florida conduct in California. Id. at 789
(citation omitted).
The Court rejected defendants’ argument that they could not be held accountable in California
for the magazine’s activities there, reasoning “petitioners are primary participants in an alleged
wrongdoing intentionally directed at a California resident.” Id. at 790.
Following the Supreme Court’s decision in Calder, the Fifth Circuit has addressed
personal jurisdiction in the context of defamation-related claims on a number of occasions. In
Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002), the Fifth Circuit held that personal jurisdiction was
lacking over Massachusetts and New York defendants who were sued in Texas for damage to the
professional reputation and emotional distress of the plaintiff in Texas. Plaintiff was the former
Associate Deputy Director of the FBI and a resident of Texas who was the subject of an article
written by one defendant, a Massachusetts professor. Id. at 469. This article was posted by the
professor on the website of the co-defendant, a New York college. Id. The Court first addressed
whether Texas could exercise personal jurisdiction over the New York college as a result of the
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use of its website to publish the subject article. The Court found both general and specific
personal jurisdiction lacking on the basis that the maintenance of a website alone is insufficient
for general personal jurisdiction and, even though the defendant’s website was interactive, it did
not satisfy specific personal jurisdiction under Calder and its progeny. See id. at 470-72. The
Circuit went on to find that personal jurisdiction was also lacking over the Massachusetts
professor, distinguishing Calder, on the bases that: (1) the article written by the professor
contains no reference to Texas, (2) the article does not refer to the Texas activities of plaintiff,
(3) the article was not directed at Texas readers, (4) Texas was not the focal point of the article
or the harm suffered, and (5) the professor did not know that plaintiff was a resident of Texas
when he posted the article.
The Fifth Circuit also addressed specific personal jurisdiction in the defamation context
in Fielding v. Hubert Burda Media, Inc., 415 F.3d 419 (5th Cir. 2005). Fielding involved claims
in a Texas forum of a Texan wife and her Swiss husband, who were living and working in
Germany, against two German-language news magazines for their reprint and print of allegedly
defamatory articles about the plaintiffs. The Fifth Circuit held that personal jurisdiction, both
general and specific, was lacking over these defendants. The Circuit concluded that specific
jurisdiction was lacking because Texas was not the subject matter of the alleged defamatory
material, since the articles focused on the couple’s life in Germany, nor were the main sources
for the articles in Texas. The Circuit reached this decision despite the fact that the articles
contained some references to the wife’s past in Texas, interviews were conducted with Texas
citizens, and one magazine hired someone to purchase the wife’s Texas yearbook. The Circuit
distinguished these facts as merely “background, biographical information” and “fleeting

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contacts.” The Circuit supported its holding by noting that the articles impugned the plaintiffs’
careers and lives in Germany, their personal tragedies discussed in the articles were suffered in
Germany, their emotional distress occurred in Germany, and the articles, which were published
in German and almost totally sold in Germany, were directed at a German audience.
The Fifth Circuit more recently addressed personal jurisdiction in the context of a
defamation claim in Clemens v. McNamee, 615 F.3d 374 (5th Cir. 2010). The claims in this
defamation litigation, filed in a Texas forum, arose out of statements made by defendant
regarding plaintiff's use of illegal performance-enhancing drugs. Plaintiff lived in Texas, but as
a professional baseball player traveled often, and defendant was plaintiff’s personal trainer over
a course of eight years, during which defendant traveled to Texas approximately 35 times to train
plaintiff and other athletes. In 2007, defendant was granted immunity to testify that he injected
plaintiff with these drugs in 1998, 2000, and 2001, in Toronto and New York. Thereafter, also in
2007, defendant’s statements were published in Major League Baseball’s investigative report,
the Mitchell Commission Report, which was republished by every national news service and
newspaper in Texas. Finally, in 2008, defendant was interviewed for and published on SI.com
regarding the same statements. Considering these contacts under Calder and its progeny, the
Fifth Circuit concluded that specific personal jurisdiction was lacking over the defendant
because the statements in the case concerned non-Texas activities and the statements were
neither made in Texas nor directed to Texas residents.
Finally, this Court too addressed personal jurisdiction in the defamation context in
Southern United States Trade Association v. Unidentified Parties, 2011 WL 2457859 (E.D. La.
June 16, 2011). Southern United arose out of allegedly defamatory statements made by the

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defendant on various internet websites about plaintiffs, who live and work in Louisiana at a
Louisiana non-profit corporation. The Court denied defendant’s personal jurisdiction challenge
on the following bases: the subject matter of the allegedly defamatory statements was in the
forum state because the non-profit and its employees were all located in Louisiana; the allegedly
defamatory statements pertained to sexual and other misconduct on behalf of the plaintiffs in
Louisiana; certain of the postings specifically referred to Louisiana; the sources relied upon were
in Louisiana, including the writer’s own alleged observations in Louisiana; and the defendant
knew that the harm resulting from his statements would be felt in Louisiana because he knew the
plaintiffs resided and worked in Louisiana through previous interactions with plaintiffs in the
State. The Court rejected the following bases supporting personal jurisdiction: some of the
allegedly defamatory statements did not explicitly refer to Louisiana; the activities of plaintiff
reached into states other than Louisiana; and the websites were passive and viewable from any
location where the internet is available.
The Court now, with the foregoing jurisprudence in mind, turns to the minimum contacts
at issue here.
4.

Minimum Contacts in the Present Case

The Court first addresses the evidence in the case to determine whether Cataphora has
sufficient minimum contacts with the forum, Louisiana. It is clear that the Plaintiffs have
Louisiana contacts. Plaintiff Russ M. Herman is the Court-appointed Liaison Counsel and exofficio member of the Plaintiffs’ Steering Committee (“PSC”) in MDL 2047. (R. Doc. 6). Mr.
Herman is a resident of New Orleans, Louisiana. Id. Plaintiff Arnold Levin is lead counsel and
a member of the PSC in MDL 2047. Id. Mr. Levin is a resident of Philadelphia, Pennsylvania,

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but has worked extensively in Louisiana. Id. However, the minimum contact inquiry for
specific personal jurisdiction is not focused upon the contacts of the plaintiffs, but instead with
the contacts of the foreign defendant and the nature of the claims arising from these contacts.
It is necessary to focus on defendant Cataphora’s contacts with this forum. Cataphora is
a California corporation which provides litigation support and document retrieval services. Id.
Defendant Chadderdon is a principal of Cataphora and a resident of California. Id. Chadderdon
has never conducted business within Louisiana and has only traveled to Louisiana once on a
family trip as a child. (R. Doc. 13-2).
With respect to Cataphora’s involvement in this case, from April to June 2009, it sought
out business from counsel who are involved with MDL 2047, multidistrict litigation which is
consolidated in the U.S. District Court, Eastern District of Louisiana. See (R. Doc. 6, Ex. D). In
August and September 2009, the PSC and Cataphora entered into contract negotiations for a
contract in which Cataphora would provide litigation support services to the PSC for MDL 2047.
See id. The contract was negotiated between a Cataphora employee based in Washington, D.C.
and a PSC member based in Florida. (R. Doc. 13-3). On October 6, 2011, a contract was
executed between the PSC and Cataphora in California. (R. Docs. 6, 13-3). The PSC, shortly
thereafter, terminated the contract, alleging it contained an illegal fee provision. See (R. Doc. 6).
No work was ever performed on or in furtherance of this contract. (R. Doc. 13-3).
As a result of the PSC’s termination of the contract, Cataphora filed suit in the Northern
District of California against the PSC and prevailed. See id. Following this litigation,
Chadderdon was contacted in California via telephone by a California writer for the law interest
blog Above the Law. (R. Doc. 13-2). Defendant Chadderdon made a series of allegedly

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defamatory statements to this California writer that were published on Above the Law’s website,
Abovethelaw.com, on September 26, 2011. See id.; (R. Doc. 6). Specifically, the following
comments attributed to Chadderdon were posted on this website:
“These guys are the worst of hypocrites that you can possibly find. . . . They claim to be
trying to help the little guy, but what they're doing is trying to put more money in their
own pockets. Everybody knows that, but this is a case that illustrates it beyond what I
have even seen.”
“We got screwed. . . . Their strategy from day one was to drag this out as long as
possible to make it go away.”
The PSC told Cataphora, “Sue us if you dare.”
“The jury saw through it almost immediately. . . . They were bored to tears with this.”
“We kicked their ass.” (R. Doc. 15-3).
The weight of the evidence demonstrates that Cataphora lacks minimum contacts with
Louisiana. Neither Cataphora nor Mr. Chadderdon is a resident of Louisiana or has physically
been to Louisiana, other than Mr. Chadderdon’s childhood trip to the State. The comments at
issue refer to the position taken by the PSC as the defendants in the California breach of contract
litigation. Also, the comments contain no mention of the Plaintiffs individually, but only of the
PSC generally of which Plaintiffs are members along with numerous other attorneys from
various states. The PSC’s contract with Cataphora was a private contract, tangential to the
PSC’s actual litigation in this Court. The comments are not in response to the MDL litigation in
this forum, but rather to the position taken by the PSC in the California litigation. The contract
at issue in the California litigation was written in California and entered into by non-forum
representatives of each party. The comments contain no reference to Louisiana or Plaintiffs’
Louisiana activities. The statements were made in California to a California reporter. The
statements were published on a national website which does not specifically target a Louisiana
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audience. No Louisiana sources were relied upon in making the comments. The comments were
not directed at Louisiana or aimed to cause harm there.
Because the Court finds that Cataphora lacks sufficient minimum contacts with
Louisiana, as is required for personal jurisdiction, the Court need not address the second fairness
prong of the personal jurisdiction test, but it is appropriate to decide whether this matter should
be dismissed or transferred.
C.

Venue

A court lacking personal jurisdiction over a defendant may still transfer the matter under
either 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406(a). Martin v. Nat’l R.R. Passenger Corp., 2003
WL 21488119, at *2 (E.D. La. June 20, 2003)(citing PaineWebber, Inc. v. The Chase Manhattan
Private Bank, 260 F.3d 453, 460 n.7 (5th Cir. 2001)); Harris v. Nichols Concrete Equip. Co.,
Inc., 20022 WL 31729490, at *4 (E.D. La. Dec. 2, 2002) (citing Bentz v. Recile, 778 F.2d 1026,
1027 (5th Cir. 1985)). Under § 1404(a), a court may transfer a case, already in a proper venue,
to a district where it might have been brought if doing so is in the convenience of the parties and
witnesses and in the interests of justice. See id. Transfer of venue under § 1406(a) is appropriate
where the original venue is improper and transfer, as opposed to dismissal, is in the interest of
justice. See id. Determining which of these statutes applies depends on whether venue is proper
or improper in this district. See id.
Venue is proper in the following three situations:
(1) a judicial district in which any defendant resides, if all defendant 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 subject of the action is
situated; or
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(3) if there is no district in which an action may otherwise be brought as provided in this
section, any judicial district in which any defendant is subject to the court’s personal
jurisdiction with respect to such action. 28 U.S.C. § 1391(b).
None of these situations is present in this district. Neither Cataphora nor Mr. Chadderdon reside
in the Eastern District of Louisiana. None of the substantial events giving rise to this litigation
occurred in Louisiana. Finally, the Court has already determined that it lacks personal
jurisdiction over Cataphora. Thus, the Court applies § 1406(a) to determine if it is in the interest
of justice to transfer the case to “any district or division in which it could have been brought.”
28 U.S.C. § 1406(a). “‘The district court has broad discretion in deciding whether to order a
transfer.’” Mays v. Yosef, 214 F.3d 1350 (5th Cir. 2000) (quoting Caldwell v. Palmetto State Sav.
Bank of S.C., 811 F.2d 916, 919 (5th Cir. 1987)).
The Court finds it is in the interest of justice to transfer the present matter to the U.S.
District Court for the Northern District of California. This district is a proper venue because
Cataphora and Mr. Chadderdon reside in California, a substantial part of the events giving rise to
the claim occurred there, and, as residents of the State, personal jurisdiction attaches to both
defendants there. Also, sources and witnesses are more likely to be located in California, and the
Northern District of California handled the breach of contract litigation underlying the present
litigation.
III.

CATAPHORA'S SPECIAL MOTION TO STRIKE PURSUANT TO LOUISIANA
ANTI-SLAPP STATUTE
Cataphora also filed a Special Motion to Strike Pursuant to Louisiana Anti-SLAPP

Statute. (R. Doc. 15). Cataphora filed this Motion pursuant to Louisiana Code of Civil
Procedure Article 971. If this Court were to retain the case, it would apply Article 971, see
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996); Hanna v. Plumer, 380 U.S.
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460, 465 (1965) (applying forum state’s substantive law in diversity case); Henry v. Lake
Charles
Am. Press, LLC, 566 F.3d 164, 169 (5th Cir. 2009) (applying Article 971 in diversity case
seated in Louisiana forum), but because the Court has concluded it lacks personal jurisdiction
over Cataphora and is transferring the case to the Northern District of California, the Court
declines to address Cataphora’s Motion and will allow the Northern District of California to
determine the issues raised therein, if appropriate. See Charles Alan Wright, Arthur R. Miller,
Edward H. Cooper, Joan E. Steinman, Catherine T. Struve, and Vikram David Amar, 14 D
Federal Practice and Procedure § 3827 (3d ed. 2012) (“[W]henever the original venue is
improper, so that transfer is under Section 1406(a), the transferee court should apply whatever
law it would have applied had the action been properly commenced there.”).
IV.

CONCLUSION
For the foregoing reasons, IT IS ORDERED that Cataphora’s Motion to Dismiss is

GRANTED. IT IS FURTHER ORDERED that this matter is transferred to the U.S. District
Court for the Northern District of California. IT IS FURTHER ORDERED that Cataphora’s
Motion to Strike is DENIED AS MOOT.

New Orleans, Louisiana this 19th day of September, 2012.

___________________________
United States District Judge

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