Southern Snow Manufacturing Co., Inc. v. Irvin

Filing 36

ORDER & REASONS denying 9 & 11 Motions to Dismiss for Lack of Jurisdiction & Motion to Transfer Case & granting 20 & 22 Motions to Dismiss for Failure to State a Claim. Signed by Judge Martin L.C. Feldman on 10/6/2014. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SOUTHERN SNOW
MANUFACTURING CO., INC.

CIVIL ACTION

V.

NO. 14-579

ANDREA IRVIN AND
PITTMAN, GERMANY,
ROBERTS & WELSH, LLP

SECTION "F"

ORDER AND REASONS
Before the Court are two motions1 by the defendants Andrea
Irvin and her law firm Pittman, Germany, Roberts, & Welsh, LLP
(PGRW): the first to dismiss for lack of personal jurisdiction and
improper venue, or alternatively to transfer to a proper or more
convenient venue, and the second to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6). For the reasons that follow, the
first motion is DENIED, and the second motion to dismiss pursuant
to 12(b)(6) is GRANTED, and the case is DISMISSED.
Background
Southern Snow Manufacturing Company, Inc. filed this action
for abuse of process and malicious prosecution in March 2014.
Southern Snow is a Louisiana corporation, Ms. Irvin is a natural
person domiciled in Mississippi, and PGRW is her Mississippi law

1

The Court notes with curiosity that the defendants filed a
total of four motions, two being near duplicates of the others.
The Court reminds the parties not to waste judicial resources with
duplicate filings.
1

firm.
The underlying litigation of which Southern Snow complains is
a products liability lawsuit.

In summer 2007 in Adams County

Mississippi, Andrea Irvin was seriously injured while cleaning a
shaved ice machine manufactured by Southern Snow.

In June 2009,

Ms. Irvin filed a products liability suit against Southern Snow in
the Circuit Court for Adams County, Mississippi.

A process server

provided an executed return of service upon Southern Snow that was
sworn to and signed by the process server and certified by a notary
public.

In fall 2009, Ms. Irvin obtained a default judgment

against Southern Snow.

In May 2010, she filed a Petition to Make

Foreign Judgment Executory in the 25th Judicial District for the
Parish of Plaquemines, which was granted.

In June 2010, Southern

Snow filed a Motion to Stay Execution of Judgment. Southern Snow
contested proper service of the June 2009 Adams County lawsuit.
Because of the potential problem with the service of process, Ms.
Irvin entered into a consent judgment with Southern Snow through
which she abandoned her attempt to collect on the default judgment.
The consent judgment was entered in November 2010. To preserve her
cause of action against the running of the three-year Mississippi
statute of limitations, Ms. Irvin re-filed her complaint in the
Circuit Court of Adams County in July 2010.
In December 2010, Southern Snow removed the second case to the
United

States

District

Court

for

2

the

Southern

District

of

Mississippi.

In March 2011, Southern Snow moved to dismiss Ms.

Irvin's claims for lack of personal jurisdiction, and the motion
was granted.

The United States Court of Appeals for the Fifth

Circuit affirmed the dismissal on March 13, 2013. Soon thereafter,
Ms. Irvin requested that the Mississippi state court mark as
cancelled the default judgment resulting from the first lawsuit.
A Certificate of Cancellation Judgment was issued on April 23,
2013.
On March 13, 2014, Southern Snow filed this action for abuse
of process and malicious prosecution against PGRW and Ms. Irvin.
The PGRW law firm and Ms. Irvin move to dismiss the claims against
them for lack of personal jurisdiction and improper venue (or for
transfer to proper or more convenient venue) and under Federal Rule
of Civil Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted.
I. Personal Jurisdiction
Rule 12(b)(2) of the Federal Rules of Civil Procedure allows
a defendant to present by motion a defense that the Court lacks
personal jurisdiction over it.
When nonresidents like the defendants move to dismiss for lack
of personal jurisdiction, the plaintiff seeking to invoke the
jurisdiction of this Court bears the burden of establishing it.
See Luv N' Care v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir.
2006).

The plaintiff may meet its burden by presenting a prima

3

facie case for personal jurisdiction where, as here, the Court
decides the matter without an evidentiary hearing.
Belin, 20 F.3d 644, 648 (5th Cir. 1994).

Wilson v.

The Court will take all

uncontroverted allegations in the complaint as true and resolve any
conflicts in the plaintiff's favor.
restricted

to

pleadings,

but

Id.

may

The Court is not

consider

affidavits,

interrogatories, depositions, or any other appropriate method of
discovery.

Id.; see Jobe v. ATR Mktg., Inc., 87 F.3d 751, 752 (5th

Cir. 1996).
The

Court

may

exercise

personal

jurisdiction

over

nonresident defendant only if two requirements are satisfied:

a
(1)

the forum state's long-arm statute confers personal jurisdiction;
and (2) the exercise of jurisdiction does not exceed the boundaries
of Due Process.

See Seiferth v. Helicópteros Atuneros, Inc., 472

F.3d 266, 270 (5th Cir. 2006).

Because the limits of Louisiana's

long-arm statute are co-extensive with the limits of constitutional
due process, the inquiry is simply whether this Court's exercise of
jurisdiction over the defendant would offend due process.

See LA.

REV. STAT. ANN. § 13:3201(B); Luv N' Care, 438 F.3d at 469; see also
Electrosource, Inc. v. Horizon Battery Techs., Ltd., 176 F.3d 867,
871 (5th Cir. 1999).
The Due Process Clause limits the Court's power to assert
personal jurisdiction over a nonresident defendant.

Helicópteros

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14 (1994).

4

That is, a nonresident defendant must have meaningful minimum
"contacts,

ties,

or

relations"

with

jurisdiction to be constitutional.

the

forum

state

for

See Luv N' Care, 438 F.3d at

469 (citing Int'l Shoe Co. v. Wash., 326 U.S. 310, 319 (1945)).
The

minimum

defendant

contacts

analysis

purposefully

asks

availed

protections of the forum.

whether

himself

of

the

the

nonresident

benefits

and

Wilson v. Belin, 20 F.3d 644, 647 (5th

Cir. 1994).
The

minimum

contacts

test

takes

two

forms,

and

the

constitutional limitations on the exercise of personal jurisdiction
differ depending on whether a court seeks to exercise general or
specific jurisdiction over the defendant.

Specific jurisdiction

exists if the plaintiff shows that the defendant has purposely
directed its activities toward the forum state and that its cause
of action arises out of or results from the defendant's forumrelated contacts. Luv N' Care, 438 F.3d at 469 (citing Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985) and Nuovo Pignone v.
STORMAN ASIA M/V, 310 F.3d 374, 378 (5th Cir. 2002)).

Once the

plaintiff makes this preliminary showing, personal jurisdiction
will

lie

so

long

as

maintaining

the

suit

will

not

"offend

traditional notions of fair play and substantial justice."

Id.

General jurisdiction, on the other hand, exists where contacts
between the defendant and the forum state have been continuous and
systematic

to

such

an

extent

that

5

the

exercise

of

personal

jurisdiction is justified. Dickson Marine, Inc. v. Panalina, Inc.,
179 F.3d 331, 339 (5th Cir. 1999).
The defendants contend that the Court does not have personal
jurisdiction over them.

The Court disagrees.

Resolving all

disputes in the plaintiff's favor, the Court finds that it properly
exercises
defendants

specific

jurisdiction

purposefully

availed

over

the

themselves

defendants.
of

the

courts

The
of

Louisiana when they filed a Petition to Make Foreign Judgment
Executory

in

the

25th

Plaquemines in May 2010.

Judicial

District

for

the

Parish

of

The plaintiff's claims of malicious

prosecution and abuse of process both arise in large part from the
filing of this petition in Louisiana state court.

Both defendants

participated in this filing, availing themselves of the forum.
Thus, the Court finds that the exercise of personal jurisdiction
over the defendants is proper.
II. Venue
Venue is governed by 28 U.S.C. § 1391, which provides that a
civil action may be brought in:
(1) a judicial district in which any defendant resides,
if all defendants 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 the
subject of the action is situated; or
(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
6

the court's personal jurisdiction with respect to such
action.
28 U.S.C. § 1391(b).

Plaintiff alleges that venue is proper under

§ 1391(b)(2), because a substantial part of the events or omissions
giving rise to the claim occurred in the Eastern District of
Louisiana.

"When venue is challenged, the burden is on the

plaintiff to establish that the district he chose is a proper
venue."

Ross v. Digioia, No. 11-1827, 2012 WL 72703, at *2 (E.D.

La. Jan. 10, 2012) (citing Perez v. Pan Am. Life Ins. Co., 70 F.3d
1268 (5th Cir. 1995)).

For purpose of a Rule 12(b)(3) motion, the

court must accept as true all allegations in the complaint and
resolve all conflicts in favor of the plaintiff.

Braspetro Oil

Servs., Co. v. Modec (USA), Inc., 240 F. App'x 612, 615 (5th Cir.
2007). Further, in deciding whether venue is proper, the court may
look outside the complaint and its attachments.

Amraco Inc. v.

Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009).
Accepting as true all allegations in the complaint, the Court
finds that venue lies in the Eastern District of Louisiana.

The

filing of the Petition to Make Foreign Judgment Executory in the
25th

Judicial

District

for

the

Parish

of

Plaquemines

is

a

substantial part of the events giving rise to the plaintiff's
complaint.

Although the defendants assert that the plaintiff

shifted its focus to the Louisiana state court filing only after
the defendants challenged personal jurisdiction and venue, the
Louisiana state court filing forms a central part of the complaint.
7

The

Court

finds

that

the

plaintiff

has

met

its

burden

of

establishing that this district is a proper venue.
III. Failure to State a Claim
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.

Such a motion is rarely

granted because it is viewed with disfavor.

See Lowrey v. Tex. A

& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."

Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009) (citing FED. R. CIV. P. 8).
"[T]he

pleading

'detailed

standard

factual

Rule

8

allegations,'

announces

but

it

does

demands

not
more

require
than

an

unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Thus,

in

considering

a

Rule

12(b)(6)

motion,

the

Court

"accepts 'all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff.'"

See Martin K. Eby Constr. Co.

v. Dall. Area Rapid Transit, 369 F.3d 464 (5th Cir. 2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).

But, in

deciding whether dismissal is warranted, the Court will not accept

8

conclusory allegations in the complaint as true.
at 1050.

Kaiser, 677 F.2d

Indeed, the Court must first identify allegations that

are conclusory and thus not entitled to the assumption of truth.
Iqbal, 556 U.S. at 678-79. A corollary: legal conclusions "must be
supported by factual allegations." Id. at 678.

Assuming the

veracity of the well-pleaded factual allegations, the Court must
then determine "whether they plausibly give rise to an entitlement
to relief." Id. at 679.
"'To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.'"

Gonzalez v. Kay, 577 F.3d

600, 603 (5th Cir. 2009) (quoting Iqbal, 556 U.S. at 678) (internal
quotation marks omitted).

"Factual allegations must be enough to

raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even
if doubtful in fact)."
footnote omitted).

Twombly, 550 U.S. at 555 (citations and

"A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the
reasonable

inference

misconduct alleged."

that

the

defendant

is

liable

for

the

Iqbal, 556 U.S. at 678 ("The plausibility

standard is not akin to a 'probability requirement,' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.").

This is a "context-specific task that requires the

reviewing court to draw on its judicial experience and common

9

sense."

Id. at 679.

"Where a complaint pleads facts that are

merely consistent with a defendant's liability, it stops short of
the line between possibility and plausibility of entitlement to
relief." Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).

"[A] plaintiff's obligation to provide the

'grounds' of his 'entitle[ment] to relief'" thus "requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do."

Twombly, 550 U.S. at

555 (alteration in original) (citation omitted).
In deciding a motion to dismiss, the Court may consider
documents that are essentially "part of the pleadings."

That is,

any documents attached to or incorporated in the plaintiff's
complaint that are central to the plaintiff's claim for relief.
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th
Cir. 2004) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d
496, 498-99 (5th Cir. 2000)).

Also, the Court is permitted to

consider matters of public record and other matters subject to
judicial notice without converting a motion to dismiss into one for
summary judgment.

See United States ex rel. Willard v. Humana

Health Plan of Tex. Inc.,

336 F.3d 375, 379 (5th Cir. 2003).

10

A. Malicious Prosecution
To state a claim for malicious prosecution under Louisiana
law, a plaintiff must allege facts supporting several essential
elements:
(1)
(2)
(3)
(4)
(5)
(6)

the commencement or continuance of an original
criminal or civil judicial pleading;
its legal causation by the present defendant
against plaintiff who was defendant in the original
proceeding;
its bona fide termination in favor of the present
plaintiff;
the absence of probable cause for such proceeding;
the presence of malice therein; and
damages conforming to legal standards resulting to
plaintiff.

Hibernia Nat'l Bank of New Orleans v. Bolleter, 390 So.2d 842 (La.
1980).

Because Louisiana public policy guarantees that people

acting in good faith shall have access to courts to redress wrongs,
malicious prosecution lawsuits are disfavored; indeed, "in order to
sustain them, a clear case must be established, where the forms of
justice have been perverted to the gratification of private malice
and the willful oppression of the innocent."

Johnson v. Pearce,

313 So.2d 812, 816 (La. 1975)(quotation omitted).
The defendants contend that several elements of the malicious
prosecution claim have not been adequately pled. The Court agrees.
i. Bona Fide Termination
The

defendants

contend

that

the

bona

fide

termination

requirement is lacking because the underlying products liability
claim has not reached a termination on the merits; the first suit

11

resulted in a default judgment that has been set aside, and the
second was dismissed for lack of personal jurisdiction.

The

plaintiff contends that the eventual setting aside of the default
judgment was a termination in its favor because it was no longer
liable for $975,000.

The Court does not agree that this satisfies

the element of bona fide termination.
A merely procedural victory, such as when a case is dismissed
on the ground of improper venue,2 prescription,3 or failure to allow
discovery4 is not a bona fide termination in favor of a malicious
prosecution plaintiff. See Deville v. Marcantel, 567 F.3d 156, 173
(5th Cir. 2009) (citation omitted), cert. denied, 130 S.Ct. 243
(2010); see also Savoie v. Rubin, 820 So. 2d 486 (La. 2002).
Procedural victories simply do not resolve the merits of the
dispute.

See Savoie, 820 So.2d at 488.

dismissal

is

accomplished

"with

Even if a procedural

prejudice,"

the

dismissal

on

technical grounds is not transformed into a conclusion on the

2

Savoie v. Rubin, 820 So. 2d 486, 488 (La. 2002)(dismissal of
the underlying suit based upon an exception raising the objection
of improper venue is not a bona fide termination of the underlying
litigation in the plaintiff's favor).
3

Milling, Benson, Woodward, Hillyer, Pierson and Miller,
L.L.P. v. American Marine Holding Co., 729 So. 2d 139, 142 (La.
App. 4 Cir. 1999) (dismissal of the underlying suit based upon an
exception raising the objection of prescription is not a bona fide
termination of the underlying litigation in the plaintiff's favor).
4

Terro v. Chamblee, 663 So. 2d 75, 77-78 (dismissal of the
underlying suit based upon a failure to allow discovery is not a
bona fide termination of the underlying litigation in the
plaintiff's favor).
12

merits so as to satisfy the favorable termination element of a
malicious prosecution claim.

See Deville, 567 F.3d at 173 ("A

procedural dismissal of the [prior lawsuit], even if the dismissal
is with prejudice, does not satisfy [the bona fide termination]
element of [a malicious prosecution] cause of action.").5

Indeed,

the purpose of this requirement, the Louisiana high court has
observed, "is that the underlying litigation should be brought to
a conclusion on the merits before a malicious prosecution suit
based on the underlying litigation is allowed to proceed."

See

Savoie, 820 So.2d at 488.
Here, a court has never reached the merits of Ms. Irvin's
products liability suit. The setting aside of the default judgment
and

the

affirming

of

the

dismissal

for

lack

of

personal

jurisdiction–though temporarily absolving the plaintiff of monetary
liability–are not bona fide terminations in its favor.

These so-

called victories resolve nothing of the merits of Ms. Irvin's
lawsuit.

Assuming prescription does bar her suit, Ms. Irvin could

still bring a successful claim for her injuries, though not in a

5

In Deville, the Fifth Circuit affirmed the district court's
ruling dismissing, on summary judgment, a malicious prosecution
claim where it was undisputed that the charges in the underlying
lawsuit were dismissed by the parish district attorney's decision
to nolle prosse the charges, "which is a procedural dismissal of
the charges without prejudice–not a bona fide termination in the
defendant's favor." Id. In reaching this conclusion, the Fifth
Circuit noted that dismissal of an indictment pursuant to La. Code
Crim. P. 691 and 693 "is not a bar to a subsequent prosecution."
Id. at 173 n.10.
13

Mississippi court.
ii. Malice
The defendants contend that the plaintiff's allegations of
malice are nothing more than conclusory allegations.
agrees.

The Court

"Malice can be inferred when the evidence shows that 'the

claimant acted with absence of caution and inquiry that a person
should employ before filing suit,'" and "malice exists when there
is 'knowledge that is false or a reckless disregard for the
truth.'"

Wiley

2001)(citations

v.

Wiley,

omitted).

800
The

So.2d

1106

Louisiana

(La.

App.

Supreme

3

Court

Cir.
has

cautioned:
[M]alice does not submit readily to definition. . . .
Any feeling of hatred, animosity, or ill will toward the
plaintiff, of course, amounts to malice. . . . But it is
not essential to prove such ill will. Malice is found
when the defendant uses the prosecution for the purpose
of obtaining an unfair advantage, for instance, as a
means to extort money, to collect a debt, to recover
property, to compel performance of a contract, . . . or
as an experiment to discover who might have committed the
crime.
Miller v. East Baton Rouge Parish Sheriff's Dep't, 511 So. 2d 446,
453 (La. 1987) (internal quotations and citations omitted).
The plaintiff focuses on an alleged material misstatement that
the defendants made for the purpose of obtaining a default judgment
against Southern Snow.

It claims that the defendants knew or

willfully refused to ascertain that proper service had not been
made.

There are no specific facts supporting this conclusory

allegation, and the defendants respond that they hired a process
14

server who provided a sworn and notarized return of service of
process.

The Court will not impose a requirement on plaintiffs to

independently investigate the propriety of service once they have
been given such reassurances by the process server.
The plaintiff also contends that Ms. Irvin "pursued her
attempt" to execute the default judgment in Louisiana state court
for "6 months."

Again, the plaintiff offers no specific facts

supporting

general

this

claim.

The

plaintiff

alludes

to

"depositions, discovery, and motions practice" occurring in the
Louisiana state court, but this Court has not been provided with
any specific allegations of any conduct by Ms. Irvin seeking to
collect on the default judgment after the plaintiff's June 2010
motion to stay the execution.
assume too much.

The plaintiff asks the Court to

The Court cannot assume that the mere existence

of the claim before the Louisiana state court leading up to the
November 2010 consent judgment means that from June to November
2010 Ms. Irvin was actively seeking to collect on the default
judgment while filing suit again in Mississippi.
The plaintiff also objects to the defendants' filing another
lawsuit in Mississippi state court before the consent judgment had
been entered in Louisiana.

The Court does not expect a petitioner

and her lawyers to allow for a statute of limitations to toll
unnecessarily.

Ms. Irvin had a right to preserve her cause of

action by re-filing.

15

iii. Attorney as a Party
The

defendant

PGRW

law

firm

objects

to

the

malicious

prosecution claim against it because it believes it is not a proper
party.

The plaintiff, in its five-page consolidated response to

the motions to dismiss, does not address this argument, rendering
it effectively unopposed.
Louisiana case law provides that a malicious prosecution claim
cannot be stated against an attorney without factual allegations
that would support "specific malice by the defendant attorney,
motivating him as an attorney to persuade his clients to initiate
and continue their . . . case" or facts showing that he "exceeded
the scope of his authority" as an attorney.

Dalton v. Breaux, 510

So. 2d 1277, 1281 (La. App. 3 Cir. 1987).

If the courts did not

require such a showing, malicious prosecution could have a chilling
effect on parties bringing lawsuits to redress wrongs in court.
Id.

Attorneys would constantly have to weigh their clients'

interests against their own fears of a malicious prosecution action
if the suit proved unsuccessful.
The

plaintiff

does

not

Id.
provide

any

specific

factual

allegations in the complaint, alleging nothing more than that the
attorney sought to harass, delay, and drive up the costs of
litigation.

In accordance with Louisiana case law, the Court will

not find a properly pled malicious prosecution claim against an
attorney without a showing of specific malice or acts outside the

16

scope of the attorney's authority.
B. Abuse of Process
The tort of abuse of process, as recognized by Louisiana law,
consists of two essential elements: (1) an ulterior purpose and (2)
a willful act in use of the process not proper in the regular
conduct of litigation. Junior Money Bags, Ltd. v. Segal, 798 F.
Supp. 375 (E.D. La. 1990), aff'd 970 F.2d 1 (5th Cir. 1992).

The

defendants contend that the plaintiff's abuse of process claim is
prescribed and that it is otherwise flawed because the plaintiff
cannot show any ulterior purpose on the part of Ms. Irvin or her
law firm.

The claim may very well be prescribed,6 but, assuming

for the sake of argument that it is not, the claim otherwise fails.
Abuse of process mandates that the plaintiff prove that the
defendant had an ulterior motive and an irregularity in the process
itself.
2005).

Alden v. Lorning, 904 So. 2d 24, 28 (La. App. 4 Cir.
When the irregular use of process is found, an ulterior

motive is presumed.

Id.

An "'[a]buse of process involves the

misuse of a process already legally issued whereby a party attempts
to obtain a result not proper under the law.'"

6

Id. at 28 (quoting

The plaintiff contends that the abuse of process claim only
began to accrue either when the Fifth Circuit affirmed the
dismissal of the second Mississippi lawsuit in March 2013 or when
the default judgment was canceled in April 2013.
The argument
fails.
A cause of action for abuse of process accrues at the
termination of the allegedly abusive acts, not the termination of
the lawsuit complained of. Waguespack v. Lincoln, 768 So. 2d 287,
290 (La. App. 1 Cir. 2000).
17

Goldstein v. Serio, 496 So. 2d 412, 415 (La. App. 4 Cir. 1986)).
Using the legal process for an improper reason is the crux of
finding an abuse of process.

Id.

The same facts discussed above underlie the plaintiff's abuse
of process claim.

The plaintiff contends that the defendants

willfully maintained the action in Louisiana state court to execute
the default judgment even though they knew it was improper and that
they simultaneously filed a second lawsuit in Mississippi state
court, pursuing both at the same time.

The plaintiff claims that

when Ms. Irvin filed her second lawsuit in Mississippi, she and her
attorneys "knew" that the Mississippi court did not have personal
jurisdiction over Southern Snow, that they made "false allegations"
"willfully" "for the purpose of establishing jurisdiction that was
known not to exist."

The plaintiff offers no factual allegations

to support these conclusory assertions.

It was only in March 2013

that the Fifth Circuit affirmed the dismissal of the second lawsuit
for lack of personal jurisdiction.

From the facts before the

Court, it appears that all Ms. Irvin knew in July 2010 when she
filed her second suit in Mississippi was that Southern Snow had
objected to the service of process in the first suit and that her
statute of limitations was set to expire.
The facts alleged do not come close to showing that Ms. Irvin
used the legal process for an improper purpose when she filed suit
seeking damages for serious injuries she sustained from the use of

18

Southern Snow's product. See Mini-Togs, Inc. v. Young, 354 So. 2d
1389, 1390 (La. App. 2d Cir. 1978) (quoting 1 Am. Jur. 2d Abuse of
Process) ("If the action is confined to its regular and legitimate
function

in

relation

to

the

cause

of

action

stated

in

the

complaint, there is no abuse, even if the plaintiff had an ulterior
motive in bringing the action.").

The plaintiff has pled no

specific facts that would tend to show that in the underlying
litigation Ms. Irvin sought anything but damages for her injuries.
Thus, she did nothing more than use the process as intended by law.
Cf. Ratcliff v. Boydell, 674 So. 2d 272, 281 (La. App 4 Cir.
1996)(finding abuse of process where the defendants, among other
bad conduct, filed multiple baseless multimillion-dollar defamation
suits to pressure the plaintiff to drop her lawsuit against them).
The fact that the default judgment remained in place for
several years is puzzling but does not rise to the level of
irregularity required in an abuse of process claim.

In fact, more

often it is the party in default who seeks to have the judgment set
aside.

See MISS. R. CIV. P. 55 advisory committee note ("If a

default judgment has been entered, the defendant may move to set
aside the default judgment pursuant to M.R.C.P. 60(b).").

Ms.

Irvin's successive lawsuits against Southern Snow are no more
irregular than this suit Southern Snow has brought against her and
her law firm.
Accordingly,
19

IT IS ORDERED that the defendants' motion to dismiss for lack
of personal jurisdiction and improper venue is DENIED.

The

defendants' motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) is GRANTED as to all claims and parties.

The

case is hereby DISMISSED.

New Orleans, Louisiana, October 6, 2014
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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