State Farm Fire and Casualty Company et al v.Diva Limousines, Ltd. et al
Filing
23
ORDER granting 5 Motion to Dismiss for Lack of Personal Jurisdiction. Signed by Judge Nannette Jolivette Brown. (jjl)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
STATE FARM FIRE AND CASUALTY COMPANY,
et al.
CIVIL ACTION
VERSUS
NO. 13-6656
DIVA LIMOUSINE, LTD., et al.
SECTION: “G”(2)
ORDER AND REASONS
This litigation arises out of Richard Preston Butler’s and State Farm Fire and Casualty
Company’s (collectively “Plaintiffs”) assertion of negligence and breach of contract claims following
the disappearance of Butler’s jewelry from a hired limousine. Before the Court is Defendant Diva
Limousine, LTD.’s (“Diva”) “Motion to Dismiss for Lack of Personal Jurisdiction.”1 In the pending
motion, Diva asserts that it lacks the minimum contacts with the state of Louisiana required for this
Court to exercise personal jurisdiction.2 Having considered the motion, the memorandum in support,
the lack of opposition, the record, and the applicable law, the Court will grant Diva’s Motion.
I. Background
A.
Factual Background
Plaintiff Richard Preston Butler, Jr. (“Butler”) is a musician who goes by the stage name
“Rico Love.”3 According to the Petition, Butler is “domiciled in Georgia,”4 but is “a California
resident.”5 The Petition alleges that Butler “maintained coverage on some of his personal property,
1
Rec. Doc. 5.
2
Rec. Doc. 5-1 at p. 4.
3
Rec. Doc. 1-1 at ¶ 2.
4
Id.
5
Id. at ¶ 5.
namely jewelry” with Plaintiff State Farm Fire and Casualty Company (“State Farm”),6 “an admitted
foreign insurer, licensed in Louisiana.”7
In their Petition, Plaintiffs assert that Butler “made arrangements to hire a Limousine through
Diva.”8 According to the Petition, Diva is “a foreign (California) company, not registered to do
business in Louisiana.”9 Plaintiffs claim that Butler had used Diva’s services “numerous times
previously, who in turn subcontracted out of town jobs to local providers, when services were
required outside of its coverage area.”10 Further, Plaintiffs assert that Butler contracted with Diva “not
only to provide limousine and driver services, but also for security services, as it knew that the
Insured carried valuables on him when he did these out of town shoots.”11
According to Plaintiffs, Diva and Defendant Bonomolo Limousines, Inc. (“Bonomolo”), a
Louisiana company, “were providing those services on September 24, 2012 at approximately 8:00
p.m. in the 2300 block of Leonidas Street in New Orleans, where the Insured was on location for a
music video shoot.”12 Plaintiffs allege that Butler “left his black leather Haimovi Jewelery Box in the
rear section of the engaged limousine,”13 and that “[a]t all times the vehicle was to have been locked
and occupied by the driver/security personnel.”14 According to Plaintiffs, when Butler returned to the
6
Id. at ¶ 5.
7
Id. at ¶ 1.
8
Id. at ¶ 5.
9
Id. at ¶ 3.
10
Id. at ¶ 5.
11
Id. at ¶ 6.
12
Id. at ¶ 7.
13
Id. at ¶ 7.
14
Id.
2
limousine at 8:15 p.m., he “discovered the limousine to be unlocked and [the driver], not inside nor
in close proximity to the vehicle.”15 Upon entering the limousine, Plaintiffs assert, Butler “discovered
his jewelry box missing along with the jewelry, valued at over $130,000, that had been inside the
jewelry box, some of which was covered by the State Farm policy and some of which was not.”16
B.
Procedural Background
On September 23, 2013, Plaintiffs filed suit against Diva and Bonomolo in Civil District
Court for the Parish of Orleans, State of Louisiana, alleging breach of contract and negligence
claims.17 On December 13, 2013, Diva removed the case to this Court asserting diversity
jurisdiction.18 On December 23, 2013, Diva filed the pending “Motion to Dismiss for Lack of
Personal Jurisdiction.”19 Plaintiffs have not filed any opposition to the pending motion.
On September 8, 2014, the Court issued an Order explaining that upon review of this matter,
it had come to the Court’s attention that it may not have subject matter jurisdiction over this case due
to a lack of complete diversity between the parties.20 The Court ordered that the parties brief the
jurisdictional issue by September 10, 2014 at 12:00 p.m.21 After all parties failed to file any brief,
the Court extended the deadline to September 10, 2014 at 5:00 p.m.22 Following the extension, Diva
15
Id. at ¶ 8.
16
Id.
17
Id. at ¶ 9.
18
Rec. Doc. 1.
19
Rec. Doc. 5.
20
Rec. Doc. 18.
21
Id.
22
Rec. Doc. 21; Rec. Doc. 22.
3
filed a memorandum.23
II. Subject Matter Jurisdiction
Although none of the parties raised the issue, the Court must address subject matter
jurisdiction sua sponte since a “party may neither consent to nor waive federal subject matter
jurisdiction.”24 “[S]ubject matter delineations must be policed by the courts on their own initiative.”25
The Court must remand the case to state court “[i]f at any time before final judgment it appears that
the district court lacks subject matter jurisdiction.”26
In its Notice of Removal, Diva asserts that the Court has subject matter jurisdiction pursuant
to 28 U.S.C. § 1332 “[s]ince there is complete diversity of citizenship between Plaintiffs and
Defendants, and because the amount in controversy exceeds $75,000.”27 However, it was unclear
whether complete diversity truly existed. As a corporation, Defendant Diva “shall be deemed to be
a citizen of every State and foreign state by which it has been incorporated and of the State or foreign
state where it has its principal place of business.”28 According to the Notice of Removal, Diva’s
principal place of business is in Studio City, California,29 thus making Diva a California citizen.
Based on the allegations of the Petition, Plaintiff Butler may also be a California citizen, which would
23
Rec. Doc. 20.
24
Simon v . Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999).
25
Gasch v. Hartford Acc. & Idem. Co., 491 F.3d 278, 281 (5th Cir. 2007) (quoting Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 583 (1999)).
26
28 U.S.C. § 1447(c).
27
Rec. Doc. 1 at p. 3.
28
28 U.S.C. § 1332(c)(1).
29
Rec. Doc. 1 at pp. 2–3.
4
defeat diversity. Specifically, the Petition states that Butler is “domiciled in Georgia,”30 but is “a
California resident.”31
In Coury v. Prot, the Fifth Circuit laid out the framework for determining citizenship of
natural persons in §1332 diversity cases:
The fourteenth amendment to the Constitution provides that: “All persons born or
naturalized in the United States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.” United States Const. amend.
XIV, § 1. However, “reside” has been interpreted to mean more than to be
temporarily living in the state; it means to be “domiciled” there. Thus, to be a citizen
of a state within the meaning of the diversity provision, a natural person must be both
(1) a citizen of the United States, and (2) a domiciliary of that state.32
Therefore, for the purposes of diversity jurisdiction, citizenship of a natural person is determined by
an individual’s domicile.33 To determine a litigant’s domicile, courts consider many factors including
“where the litigant exercises civil and political rights, pays taxes, owns real and personal property,
has driver’s and other licenses, maintains bank accounts, belongs to clubs and churches, has places
of business or employment, and maintains a home for his family.”34 While the court should consider
where the litigant claims to be domiciled, his assertion is “entitled to little weight if it conflicts with
the objective facts.”35 “In making a jurisdictional assessment, a federal court is not limited to the
pleadings; it may look to any record evidence, and may receive affidavits, deposition testimony or
30
Rec. Doc. 1-1 at ¶ 2.
31
Id. at ¶ 5.
32
Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996).
33
Preston v. Tenent Healthsystem Mem’l Med. Ctr., Inc., 485 F.3d 797 (5th Cir. 2007).
34
Coury, 85 F.3d at 251.
35
Id.
5
live testimony concerning the facts underlying the citizenship of the parties.”36
Although the Petition indicates that Butler is “domiciled in Georgia” and is a “California
resident,” it appears that Butler is currently domiciled in Florida, and was domiciled in Florida both
at time of the incident and when this case was filed. According to a brief filed by Diva, in a
deposition, Butler testified that he has lived in Miami, Florida for two years with his girlfriend, his
son, and his mother.37 Butler also has a Florida drivers license.38 Further, Butler stated that bills are
sent to him in Florida, although some bills go to Georgia.39 Finally, Butler testified that he does not
use a bodyguard when he makes appearances in Miami, Florida, but that a bodyguard accompanies
him whenever Butler travels outside of Florida, allegedly demonstrating that he considers Florida to
be his home.40 Plaintiffs have not disputed these allegations.
Considering the evidence in the record, it appears at this juncture that Butler is citizen of
Florida, and that there is complete diversity between the parties. However, “[i]f at any time before
final judgment it appears that the district court lacks subject matter jurisdiction,” the case will be
remanded.41
36
Id. at 249.
37
Rec. Doc. 20-1 at pp. 2–3. Prior to living in Miami, Butler lived in Georgia. See id.
38
Id. at p. 3.
39
Id.
40
Id. at p. 5.
41
28 U.S.C. § 1447(c).
6
III. Personal Jurisdiction
A.
Parties’ Arguments
1.
Diva’s Argument in Support
Diva argues that Plaintiffs “cannot prove and did not allege facts to establish that Diva
Limousines, Ltd., a nonresident of Louisiana, has or had sufficient minimum contacts with Louisiana
to warrant this court exercising personal jurisdiction over it.”42 According to Diva, in the Petition,
“[t]here are no allegations and no evidence that Diva maintained the type of ‘continuous and
systematic general business contacts’ with Louisiana to establish general jurisdiction.”43 Further, Diva
maintains that “[n]or are there sufficient allegations to establish specific personal jurisdiction.”44
Specifically, Diva argues:
There is only allegation whereby plaintiffs assert contact as between Diva
Limousines, Ltd and Louisiana and that is found in paragraph 5 of the petition which
states: “The Insured, a California resident, had made arrangements to hire a
Limousine through Diva, whose services he had utilized numerous times previously,
who in turn subcontracted out of town job to local providers, when services were
required outside of the coverage area.”45
Additionally, Diva notes that “Plaintiffs further allege that Butler was in Louisiana on September 24,
2012 and that ‘Diva and Bonobolo were providing those services.’”46 Diva argues that these alleged
contacts between Diva and Louisiana “are simply insufficient for purposes of this court exercising
personal jurisdiction over Diva Limousines Ltd.” and do not “establish the requisite minimum
42
Rec. Doc. 5-1 at p. 3.
43
Id. (citing Choice Healthcare, Inc. v. Kaiser Found. Health Plan of Colo., 615 F.3d 364 (5th Cir. 2010)).
44
Id.
45
Id.
46
Id. at p. 4.
7
contacts.”47
2.
Plaintiffs’ Argument
Plaintiffs did not file a response to Diva’s “Motion to Dismiss for Lack of Personal
Jurisdiction.”
B.
Law and Analysis
1.
Standard on a Rule 12(b)(2) Motion to Dismiss
Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may move the court
to dismiss a complaint for lack of personal jurisdiction.48 In deciding a 12(b)(2) motion to dismiss,
the district court may consider “the entire record” and may receive “affidavits, interrogatories,
depositions, oral testimony, or any combination of recognized methods of discovery.”49 A district
court has “considerable leeway” on how it resolves the motion.50 The district court “may determine
the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may
conduct an evidentiary hearing on the merits of the motion.”51 When a district court does not conduct
an evidentiary hearing, “the party seeking to assert jurisdiction is required only to present sufficient
facts to make out a prima facie case supporting jurisdiction.”52 The court shall accept as true that
47
Id.
48
Fed. R. Civ. P. 12(b)(2). The Court notes that removal does not constitute a waiver of a defendant’s right
to bring a 12(b)(2) motion to dismiss for lack of personal jurisdiction. See Thompson v. Cartlidge, 158 F.3d 583 (5th
Cir. 1998).
49
Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir. 1985).
50
Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (5th Cir. 1981).
51
Id.
52
Central Freight Lines Inc. v. APA Transp. Corp., 322 F.3d 376, 380 (5th Cir. 2003) (citing Alpine View
Co. v. Atlas Copco A.B., 205 F.3d 208, 214 (5th Cir. 2000)); see also Data Disc., Inc. v. Sys. Tech. Assoc., Inc., 557
F.2d 1280, 1285 (5th Cir. 1977).
8
party’s uncontroverted allegations, so long as the allegations are not merely conclusory, and shall
“resolve all factual conflicts in favor of the party seeking to invoke the court’s jurisdiction.”53
The Fifth Circuit has not explicitly addressed how district courts should consider unopposed
motions to dismiss for lack of personal jurisdiction or whether a plaintiff can meet its burden of proof
when it fails to file a response presenting facts supporting jurisdiction. However, in ruling on
unopposed Rule 12(b)(2) motions, district courts within the Fifth Circuit have conducted the personal
jurisdiction analysis by looking to the plaintiff’s complaint to assess whether it sets forth sufficient
facts to establish a prima facie case for personal jurisdiction.54
2.
Personal Jurisdiction
In a diversity action, a federal court may exercise personal jurisdiction over a defendant to
the extent permitted by the forum state’s jurisdictional statute and the Due Process Clause of the
Fourteenth Amendment.55 Louisiana Revised Statute § 13:3201 authorizes Louisiana state courts to
exercise personal jurisdiction “on any basis consistent with the constitution of this state and of the
Constitution of the United States.”56 As the Fifth Circuit has instructed, because Louisiana’s long-arm
statute authorizes the exercise of personal jurisdiction to the extent permitted by the Fourteenth
Amendment, a federal court must only determine if subjecting the defendant to suit in Louisiana
53
Id.
54
See, e.g., Hudleston v. RIN TIN TIN, Inc., No. 11-1427, 2011 WL 4502907 (W.D. La. Sept. 1, 2011)
(Hayes, M.J.) report and recommendation adopted, No. 11-1427, 2011 WL 4501425 (W.D. La. Sept. 28, 2011)
(James, J.); Gulf S. Med. & Surgical Inst. v. Pan Am. Life Ins. Co., CIV. A. 91-4649, 1992 WL 202346 (E.D. La.
Aug. 12, 1992) (Sear, J.).
55
Central Freight Lines Inc., 322 F.3d at 380.
56
La. Rev. Stat. § 13:3201.
9
comports with the Due Process Clause.57
In Central Freight Lines Inc. v. APA Transport Corp., the Fifth Circuit laid out the framework
for analyzing whether the Constitution permits a court to exercise personal jurisdiction over a
defendant. As the Fifth Circuit explained, the Due Process Clause protects an individual from being
subject to a binding judgment “of a forum with which he has established no meaningful ‘contacts,
ties, or relations.’”58 For a court’s exercise of personal jurisdiction over a nonresident defendant to
be consistent with Due Process, two factors must be satisfied. First, the defendant must have
“purposely availed himself of the benefits and protections of the forum state by establishing
‘minimum contacts’ with the forum state.’”59 Second, a court’s exercise of personal jurisdiction
cannot “offend traditional notions of fair play and substantial justice.’”60 Due Process is satisfied
when “the defendant’s conduct and connection with the forum State are such that he should
reasonably anticipate being haled into court there.”61 This requirement ensures that a defendant will
not be subject to litigation because of “‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts” with the
forum state.62
“[M]inimum contacts may result in either specific or general jurisdiction.”63 As Central
57
Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 336 (5th Cir. 1999) (noting that only the Due
Process Clause analysis is necessary).
58
Central Freight Lines Inc., 322 F.3d at 380 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 319
59
Id. (quoting Mink v. AAA Development, LLC, 190 F.3d 333, 336 (5th Cir. 1999)).
60
Id. at 381 (quoting Mink, 190 F.3d at 336).
(1945)).
61
Stuart v. Spademan, 772 F.2d 1185, 1191 (5th Cir. 1985) (quoting World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980)).
62
Id. (quoting Burger King Corp. v. Rudewicz, 471 U.S. 462, 475 (1985)).
63
Central Freight Lines Inc., 322 F.3d at 380.
10
Freight Lines Inc. instructs, “[g]eneral jurisdiction may be asserted when a defendant’s contacts with
the forum state are substantial and ‘continuous and systematic’ but unrelated to the instant cause of
action.”64 In contrast, when the nonresident defendant has “purposely directed its activities at the
forum state and the litigation results from alleged injuries that arise out of or relate to those
activities,’ the defendant’s contacts are sufficient to support the exercise of specific jurisdiction over
that defendant.’”65 In some cases, “[a] single purposeful contact” may confer specific jurisdiction.66
The Fifth Circuit has repeatedly held that “merely contracting with a resident of the forum
state is insufficient to subject the nonresident to the forum’s jurisdiction.”67 Rather than looking
exclusively at the existence of a contract between the defendant and a resident of a forum state, the
court must analyze the contract to determine whether the “defendant purposely established minimum
contacts within the forum.”68 In Electrosource, Inc. v. Horizon Battery Technologies, Ltd., the Fifth
Circuit characterized this analysis as a “‘highly realistic’ approach . . . recognizing that a contract is
ordinarily but an intermediate step serving to tie up prior negotiations and future consequences which
themselves are the real object of the business transaction.’”69 Electrosource instructs that “[t]he
factors of prior negotiations and contemplated future consequences, along with the terms of the
contract and the parties’ actual course of dealing must be evaluated in determining whether the
64
Id. at 381(quoting Helicoperos Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984)).
65
Id. (quoting Burger King Corp., 471 U.S. at 472).
66
Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374, 379 (5th Cir. 2002).
67
Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 778 (5th Cir. 1986); see also Freudensprung v. Offshore
Technical Servs., Inc., 379 F.3d 327, 344 (5th Cir. 2004); Colwell Realty Inv., Inc. v. Triple T Inns of Ariz., Inc., 785
F.2d 1330, 1334 (5th Cir. 1986); Stuart, 772 F.2d at 1192–93.
68
Electrosource, Inc. v. Horizon Battery Technologies, Ltd., 176 F.3d 867, 872 (5th Cir. 1999).
69
Id.
11
defendant purposefully established minimum contacts with the forum.”70 When considering prior
negotiations and contemplated future consequences, a court should examine the communications that
preceded the formation of the contract and assess whether the contract envisioned “continuing
obligations and wide-reaching contacts” between the defendant and the forum state.71 When
analyzing the terms of the contract, courts find the “place of contracting” relevant and give “weighty
consideration” to where the performance under the contract was due.72 Moreover, if the contract
contains a choice-of-law provision, that will also be a significant factor.73
3.
Analysis
As discussed above, for the Court to exercise personal jurisdiction, it must first determine
whether the defendant “purposely availed himself of the benefits and protections of the forum state
by establishing ‘minimum contacts’ with the forum state.’”74 These minimum contacts may confer
either general jurisdiction or specific jurisdiction. If a defendant has minimum contacts with the
forum state, then the court must evaluate whether its exercise of personal jurisdiction would “offend
traditional notions of fair play and substantial justice.’”75
70
Id.
71
Stuart, 772 F.2d at 1194.
72
Command-Aire Corp. v. Ontario Mechanical Sales and Serv., Inc., 963 F.2d 90, 94 (5th Cir. 1992); see
also Holt Oil & Gas Corp., 801 F.2d at 778 (emphasizing the importance of where a majority of the performance of
the contract occurs).
73
See Burger King Corp., 471 U.S. at 481–82 (observing that in evaluating personal jurisdiction, “the Court
of Appeals gave insufficient weight to provisions in the various franchise documents providing that all disputes
would be governed by Florida law”); Brammer Eng’g, Inc. v. E. Wright Mountain Ltd. P’ship, 307 F. App’x 845,
848 (5th Cir. 2009); Holt Oil & Gas Corp., 801 F.2d at 778; Hydrokinetics, Inc. v. Alaska Mech., Inc., 700 F.2d
1026, 1031 (5th Cir. 1983).
74
Central Freight Lines Inc., 322 F.3d at 380 (quoting Mink, 190 F.3d at 336).
75
Id. at 381 (quoting Mink, 190 F.3d at 336).
12
a.
General Jurisdiction
A court may exercise general jurisdiction when the “defendant’s contacts with the forum state
are substantial and ‘continuous and systematic.’”76 That is, the defendant’s contacts with the forum
state must be regular and substantive.77 To confer general jurisdiction, the nonresident defendant must
have a “business presence” in the forum state; the mere conducting of business with the forum state
does not qualify.78 In their complaint, Plaintiffs did not allege any facts indicating that Diva has a
business presence in Louisiana. Indeed, Plaintiffs characterize Diva as a “foreign (California)
corporation, not registered to do business in Louisiana.”79 Accordingly, the Court does not have
general jurisdiction over Diva.
b.
Specific Jurisdiction
A court may exercise specific jurisdiction over a nonresident defendant if the defendant
“purposely directed its activity at the forum state” and if the civil action arises from or is related to
that activity.80 In this case, Plaintiffs have not filed any response to the pending motion articulating
whether the minimum contacts requirement is satisfied with respect to Diva. Looking at the petition,
the only possible contact Plaintiffs allege between Diva and Louisiana appears to be premised on two
agreements. First, Plaintiffs assert Butler contracted with Diva for a limousine, driver, and security.81
Second, Diva allegedly “subcontracted out of town jobs to local providers, when services were
76
Holt Oil & Gas Corp., 801 F.2d at 778.
77
Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 612 (5th Cir. 2008).
78
Id. at 611.
79
Rec. Doc. 1-1 at ¶ 3.
80
Central Freight Lines Inc., 322 F.3d at 380 (quoting Burger King Corp., 471 U.S. at 462).
81
Rec. Doc. 1-1 at ¶ 6.
13
required outside of its coverage area,”82 and according to Plaintiffs, Diva and Bonomolo were
providing these services to Butler on September 24, 2012 in New Orleans, Louisiana.83 The Court
will analyze the two agreement in turn.
i.
Agreement Between Butler and Diva
As an exhibit to its Answer, Diva attaches what it alleges to be an agreement “signed by
Pamela Glass, an agent acting on Butler’s behalf.”84 This agreement includes a “Signature on File
Authorization Form” as well as “Policies and Terms” sheet. Plaintiff, however, has not indicated
whether this document represents the agreement between Butler and Diva.
The record does not reference any “prior negotiations” between Butler and Diva beyond
Plaintiffs’ allegation that Butler utilized Diva’s services “numerous times previously.”85 The Petition
does not indicate whether these previous arrangements occurred in Louisiana, or whether they took
place in some other state. With respect to possible future consequences, there is no suggestion that
the contract between Butler and Diva envisioned “continuing obligations and wide-reaching contacts”
between Diva and the forum state, Louisiana.86 In sum, there is no indication that Plaintiff had ever
requested that Diva make limousine and security arrangements in Louisiana in the past, or that Butler
and Diva contemplated that Diva would having continuing obligations in Louisiana.
Second, although Plaintiffs assert that Butler “made arrangements” with Diva to hire a
limousine and for security services, Plaintiffs have not expressly alleged that Butler made
82
Id. at ¶ 5.
83
Id.
84
Rec. Doc. 4 at p. 4; see also Rec. Doc. 4-1.
85
Id. at ¶ 5.
86
Stuart, 772 F.2d at 1194.
14
arrangements for a limousine to be provided specifically in Louisiana. Further, in looking at the
purported agreement filed by Diva, that document appears to be a standard form and contains no
reference to where services are to be provided.87
Third, the record does not indicate the actual dealings between Butler and Diva beyond
Plaintiffs’ assertion that “Diva and Bonomolo” provided Butler with a limousine and a driver/security
personnel in New Orleans, Louisiana on September 24, 2012.
Finally, the purported agreement filed by Diva contains a choice-of-law provision, stating:
“This Agreement and its performance shall be governed by the laws of the State of California, United
States of America, without giving effect to applicable conflict of law provisions.”88 As noted above,
a court should consider a choice-of-law provision in its analysis of personal jurisdiction.89
ii.
Agreement Between Diva and Bonomolo
As a preliminary matter, the Court notes that the Petition never specifically alleges that Diva
entered into an agreement with Bonomolo. Rather, the Petition states Diva “subcontracted out of town
jobs to local providers, when services were required outside of its coverage area,”90 and that Diva and
Bonomolo were providing these services to Butler on September 24, 2012 in New Orleans,
Louisiana.91 The implication is that Diva subcontracted with Bonomolo, but Plaintiffs never make
this allegation clear.
87
See Rec. Doc. 4-1.
88
Id. at p. 3.
89
See Burger King Corp., 471 U.S. at 481–82 (observing that in evaluating personal jurisdiction, “the Court
of Appeals gave insufficient weight to provisions in the various franchise documents providing that all disputes
would be governed by Florida law”); Brammer Eng’g, Inc., 307 F. App’x at 848; Holt Oil & Gas Corp., 801 F.2d at
778; Hydrokinetics, Inc., 700 F.2d at 1031.
90
Id. at ¶ 5.
91
Id. at ¶ 7.
15
With respect to “[t]he factors of prior negotiations and contemplated future consequences,”92
the Petition does not reference any “prior negotiations” between Diva and Bonomolo. Further, there
is no indication of any “future consequences.” The Court simply has no information regarding
whether Diva and Bonomolo had ever done business together or contemplated maintaining a business
relationship.
Second, the record is completely silent on the terms of any agreement between Diva and
Bonomolo. For example, the Petition does not address where the agreement called for material
performance to occur, or whether the parties agreed to any choice-of-law provision.
Finally, the record does not indicate the actual dealings between Diva and Bonomolo beyond
Plaintiffs’ assertion that Diva and Bonomolo provided Butler with a limousine and a driver/security
personnel in New Orleans on September 24, 2012.
Looking at the allegations as a whole, Plaintiffs fail to articulate sufficient facts to make a
prima facie case that Diva has the requisite minium contacts with Louisiana for the Court to exercise
personal jurisdiction over Diva. Rather, Plaintiffs’ Petition merely seems to imply that Diva may have
arranged with a Louisiana company for Butler to be provided a limousine and security in Louisiana.
This implication of an attenuated relationship between Diva and the state of Louisiana, however, does
not make out a prima facie case that “the defendant purposely established minimum contacts within
the forum.”93 Because Plaintiffs have not established that Diva has minimum contacts with
Louisiana, the Court may conclude that it does not have personal jurisdiction over Diva, and it need
not evaluate whether asserting jurisdiction would “offend traditional notions of fair play and
92
Electrosource, Inc., 176 F.3d at 872.
93
Electrosource, Inc., 176 F.3d at 872.
16
substantial justice.”94
IV. Conclusion
As discussed above, for the Court to exercise personal jurisdiction, the nonresident defendant
must have established “minimum contacts” with the forum state and the Court’s exercise of personal
jurisdiction cannot “offend traditional notions of fair play and substantial justice.” In this case,
Plaintiffs have not presented sufficient facts to make out a prima facie case supporting that Diva has
the requisite minimum contacts. Accordingly,
IT IS HEREBY ORDERED that Diva’s “Motion to Dismiss for Lack of Personal
Jurisdiction” is GRANTED and all claims against Diva are dismissed without prejudice.
NEW ORLEANS, LOUISIANA, this ___ day of September, 2014.
__________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
94
Central Freight Lines Inc., 322 F.3d at 381(quoting Mink, 190 F.3d at 336).
17
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