Loiacano v. DISA Global Solutions, Inc. et al
Filing
25
ORDER AND REASONS granting 10 Motion to Dismiss for Failure to State a Claim. Party Nsuela R Mukana (M.D.) dismissed. Signed by Judge Ivan L.R. Lemelle. (lag)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVID J. LOIACANO
CIVIL ACTION
VERSUS
NO. 14-1750
DISA GLOBAL SOLUTIONS, INC.
d/b/a LENNOX HEALTHCARE MRO
SERVICES, PSYCHEMEDICS CORPORATION,
AND NSUELA R. MUKANA, M.D.
SECTION B(4)
ORDER AND REASONS
Before the Court are Defendant, Nsuela R. Mukana’s Rule
12(b)(2) and Rule 12(b)(6) Motions to Dismiss. (Rec. Doc. No.
10).
Plaintiff
has
filed
an
opposition
to
the
motions
to
dismiss. (Rec. Doc. No. 12). For the reasons enumerated below,
IT IS ORDERED that Defendant’s Motions to Dismiss for Lack
of Personal Jurisdiction under Rule 12(b)(2) and for Failure to
State a Claim under Rule 12(b)(6) are GRANTED.
Cause of Action
Plaintiff, David J. Loiacano filed the instant suit against
DISA Global Solutions, Psychemedics Corporation, and Nsuela R.
Mukana, M.D., on August 1, 2014.1 Loiacano, a Louisiana resident,
claims
subject-matter
jurisdiction
is
proper
pursuant
to
28
U.S.C. Section 1332.
1
DISA Global Solutions, d/b/a Lennox Healthcare MRO Services, is a Delaware company authorized to do and in fact doing
business in the Parish of St. Charles, Louisiana. Psychemedics Corporations is a Delaware company authorized to do and in fact
doing business in the Parish of St. Charles, Louisiana.
1
Plaintiff claims that, as a result of the unreasonable and
unreliable
performance
of
a
drug
screening
performed
by
the
Defendants, he was terminated by his Louisiana employer of 18
years. Plaintiff seeks loss of earnings, loss of insurance and
retirement
benefits,
and
damages
for
mental
suffering
and
anguish.
Dr. Mukana (“Defendant”) is a licensed medical doctor in
Texas, and an agent and/or independent contractor of DISA Global
Solutions.
affected
Plaintiff
by
legal
claims
his
medications,
drug
and
screening
that
the
was
adversely
Defendant,
the
medical review officer, who called twice to discuss the test
results, acted negligently in failing to review or obtain his
medical history, thereby contributing to his termination.
Law and Analysis
I.
Rule
12(b)(2)
Motion
to
Dismiss
for
Lack
of
Personal
Jurisdiction
A district court sitting in diversity may exercise personal
jurisdiction only to the extent permitted a state court under
applicable state law. Allred v. Moore & Peterson, 117 F.3d 278,
281 (5th Cir. 1997). Further, a federal court may only exercise
personal
jurisdiction
over
a
nonresident
defendant
if
the
exercise of personal jurisdiction comports with the Due Process
Clause of the Fourteenth Amendment. McFadin v. Gerber, 587 F.3d
753, 759 (5th Cir. 2009). A district court may assert either
2
general or specific jurisdiction over a party. Panda Brandywine
Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 867-68 (5th Cir.
2001).
a. General Jurisdiction
General jurisdiction is established where the defendant has
“continuous
Choice
and
systematic”
Healthcare,
Inc.
v.
contacts
Kaiser
with
the
Foundation
forum
state.
Health
Plan
of
Colo., 615 F.3d 364, 368 (5th Cir. 2010). To show the type of
“continuous
and
systematic”
contact
required
for
general
jurisdiction, a plaintiff must demonstrate contacts of a more
extensive
quality...and
must
be
substantial.”
Johnston
v.
Multidata Sys. Int’l Corp., 523 F.3d, 602, 609 (5th Cir. 2008).
Plaintiff does not challenge the following: (1) Defendant
is a resident and citizen of Missouri City, Fort Bend County,
Texas, (2) Defendant does not practice medicine in Louisiana,
(3) Defendant is licensed to practice medicine in Texas, (4)
Defendant does not maintain an office or a place of business in
Louisiana
and
Louisiana,
(5)
Louisiana,
and
does
not
have
Defendant
(6)
any
does
Defendant
employees
not
does
own
not
or
real
agents
within
property
manufacture,
sell
in
or
distribute products in Louisiana. (Rec. Doc. No. 10-2 at 1-2;
Rec. Doc. No. 12 at 2).2
2
Defendant does not have a contract or other business relation with, and does not work for or on behalf of Plaintiff’s
former employer. (Rec. Doc. No. 10-2 at 2).
3
Defendant’s contacts with the forum consist of two phone
calls
to
Plaintiff’s
Louisiana
phone
number.
This
limited
contact is insufficient to establish that Defendant maintained
“continuous and systematic” contact with Louisiana. See Choice
Healthcare, Inc. v. Kaiser Foundation Health Plan of Colo., 615
F.3d at 368 (finding general jurisdiction lacking where insurer
owned no offices, property, or accounts in Louisiana, but made
intermittent payments to Louisiana plaintiff); see also Cent.
Freight Lines, Inc. v. APA Transp. Corp., 322 F.3d 376 (5th Cir.
2003)(finding
general
jurisdiction
lacking
where
defendant
company arranged and received shipments and sent salesmen to the
forum state). This Court lacks general jurisdiction over this
Defendant, which Plaintiff appears to concede. (Rec. Doc. No. 12
at 2).
b. Specific Jurisdiction
Specific
defendant
jurisdiction
lacks
“continuous
may
and
be
established
systematic”
where
contacts
but
the
has
instead some minimum contacts that establish (1) the defendant
has “purposefully directed his activities at residents of the
forum,” and (2) that the plaintiff’s alleged injury “arise[s]
out of or relate[s]” to the defendant’s contacts with the forum
state. Clemens v. McNamee, 615 F.3d 374, 378-79 (5th Cir. 2010)
(quoting Burger King v. Rudzewicz, 471 U.S. 462, 472 (1985)).
4
There must be a sufficient nexus between the defendant’s minimum
contacts and the plaintiff’s alleged injury. Id. at 379.
The
Louisiana
long-arm
statute,
13:3201
et.
seq.,
is
intended to provide Louisiana residents with maximum protection
in Louisiana courts, consistent with constitutional due process
requirements, from damage occasioned by acts of a nonresident
when the nonresident has minimal contacts with Louisiana. Mayeux
v. Hughes, 333 So.2d 273, 274 (La. App. 1 Cir. 5/24/76). As the
limits of Louisiana’s long-arm statute are co-extensive with the
limits
of
constitutional
due
process,
the
sole
inquiry
into
personal jurisdiction over a nonresident is a one-step analysis
of the constitutional due process requirements. See Luv N’Care
v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006).
Procedurally,
the
party
invoking
the
jurisdiction
of
a
federal court bears the burden of establishing minimum contacts
justifying
the
court’s
jurisdiction
over
a
nonresident
defendant. Guidry v. U.S. Tobacco Co., Inc., 188 F.3d 619, 625
(5th Cir. 1999). If a plaintiff establishes minimum contacts
between the defendant and the forum state, the burden of proof
shifts
to
the
jurisdiction
is
defendant
unfair
and
to
show
that
unreasonable.
the
assertion
Cent.
Freight
of
Lines
Inc. v. APA Transp. Corp., 322 F.3d at 384.
In sum, a court may exercise specific jurisdiction over a
defendant
who
has
minimum
contacts
with
the
forum
state
if
5
maintaining the suit would not “offend traditional notions of
fair play and substantial justice.” See Luv N’Care v. Insta-Mix,
Inc., 438 F.3d at 469 (citing Int’l Shoe Co. v. Washington, 326
U.S. 310, 319 (1945)).
Contacts of Defendant Mukana
The minimum contacts test is satisfied by a single act or
actions by which the defendant purposefully avails herself of
the privilege of conducting activities within the forum state,
thus
invoking
the
benefits
and
protections
of
its
laws.
Tsaoussidis v. State Farm Mut. Auto. Ins. Co., 28 So.3d 311, 315
(5th Cir. 2009). The defendant’s purposeful availment cannot be
random or fortuitous and must be such that the defendant should
reasonably anticipate being haled into court in the forum state.
Id. Once minimum contacts are established, a court must then
analyze the quality and nature of contacts to determine whether
exercise is reasonable. Bryers v. Edmondson, 807 So.2d 283 (La.
App. 1 Cir. 11/9/01).
Plaintiff alleges that the Defendant initiated two calls to
his Louisiana phone number, and that her negligence in reviewing
his
medical
background
over
the
phone
contributed
to
his
termination, because a review would have revealed use of legal
medications
that
influenced
the
test
results
that
served
as
basis for termination. Although Plaintiff is not alleging that
the Defendant reported the results to the Louisiana employer, it
6
is clear that a nexus has been established between the alleged
injury
and
the
Defendant’s
contacts
with
the
forum.
Of
consequence however, is whether the contacts suffice, and the
Plaintiff seeks to have this Court assert specific jurisdiction
on the basis of the Defendant’s phone calls.
Several Fifth Circuit cases are factually similar to this
case. In Wien Air Alaksa, Inc. v. Brandt, 195 F.3d 208 (5th Cir.
1999),
it
was
held
that
various
phone
defendant were sufficient to establish
because
the
single
act
contained
calls
specific
and
gave
made
by
the
jurisdiction,
rise
to
the
intentional tort cause of action, fraudulent misrepresentation.
Id. at 211. In Lewis v. Fresne, 252 F.3d 352, 358-59 (5th Cir.
2001), a case also involving fraudulent misrepresentation, the
court again held that “a single act by a defendant can be enough
to confer specific jurisdiction if that act gives rise to the
claim being asserted.” Cf. Rossi v. Wohl, No. 06-10923, 246 Fed.
Appx. 856, 859 (5th Cir. 2007)(finding defendants had minimum
contacts in an action for breach of fiduciary duty based on
misrepresentations).
This foregoing standard was recently applied in Hoffman v.
Bailey, 996 F.Supp.2d 477, 484 (E.D. La. 2014), where the court
found
the
defendant
had
sufficient
minimum
contacts
for
the
court to exercise specific jurisdiction because the contents of
an
email
sent
by
the
nonresident
defendant
gave
rise
to
a
7
defamation claim. The court found that the single act giving
rise to an intentional tort constituted purposeful availment.
Id. at 484.
This
conferring
Court
distinguishes
personal
the
jurisdiction
present
because
case
from
Plaintiff
those
does
not
allege that Defendant’s acts and communications give rise to an
intentional tort, but rather Plaintiff alleges negligence. In
Wien Air Alaska v. Brandt, the court made clear that a finding,
on the basis of a communication, that a nonresident defendant
purposefully availed herself of the benefits and protections of
the forum state, turns upon whether the communication gives rise
to
an
intentional
tort
cause
of
action.
195
F.3d
at
213
(emphasis added). This was underscored by the Fifth Circuit in
Lewis v. Fresne, where the court acknowledged cases where mere
communications
were
not
enough
to
subject
a
non-resident
defendant to the forum state’s jurisdiction, and then stated
“[T]hese cases did not, however, involve an intentional tort.”
252 F.3d at 359.
While the exercise of personal jurisdiction could otherwise
be
reasonable
in
regard
communications
in
light
to
of
the
the
nature
claims
and
quality
asserted,
of
the
because
the
Defendant’s communications do not give rise to an intentional
tort cause of action, this Court cannot find that the Defendant
purposefully
availed
herself
of
the
forum
to
support
this
8
Court’s exercise of specific jurisdiction over the nonresident
Defendant.
Arguably,
Defendant
could
foresee
that
negligently
performed drug screenings could result in wrongful employment
terminations in the forum; however, foreseeable injury alone is
not
sufficient
to
confer
specific
jurisdiction,
absent
the
direction of specific acts toward the forum. Wein Air Alaska v.
Brandt, 195 F.3d at 212. Consistently, the Fifth Circuit has
held
that
“mere
foreseeability
or
awareness
is
a
constitutionally sufficient basis for personal jurisdiction if
the defendant’s product made its way into the forum state while
still in the stream of commerce.” Luv N’Care v. Insta-Mix, Inc.,
438 F.3d at 470 (citing Hanson v. Denckla, 357 U.S. 235, 253
(1958)). However, this case is not one where the Defendant has
placed
a
Louisiana.
denies,
product
into
Plaintiff
that
a
does
Defendant
stream
not
of
allege,
conducted
the
commerce
and
drug
that
Defendant
screening
reported the results to the Louisiana employer.
led
in
to
fact
and/or
(Rec Doc. No.
12 at 9; Rec. Doc. No. 10-2 at 3).
As Plaintiff has not met the burden in establishing a prima
facie
case
for
this
Court’s
exercise
specific jurisdiction, this Court
finds
of
either
personal
general
or
jurisdiction
lacking.
9
II.
Rule 12(b)(6) Motion to Dismiss
for Failure to State a
Negligence Claim
A motion to dismiss pursuant to Rule 12(b)(6) operates to
test the sufficiency of the complaint. (1) The first step in
testing the sufficiency of the complaint is to identify any
conclusory allegations. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950
(2009).
Threadbare
action,
supported
recitals
by
of
mere
the
elements
conclusory
of
a
cause
statements,
of
do
not
suffice.” Id. at 1949 (citing Bell Atlantic Corp. v. Twombly,
127 S.Ct. 1955 (2007). Although the court must accept wellpleaded
factual
allegations
of
the
complaint
as
true
for
purposes of a motion to dismiss, the court is “not bound to
accept
as
true
a
legal
conclusion
couched
as
a
factual
allegation. (2) After assuming the veracity of all well-pleaded
factual
allegations,
the
second
step
is
for
the
court
to
determine whether the complaint pleads “a claim to relief that
is plausible on its face.” Iqbal, 129 S.Ct. at 1949.
Rule 8 delineates the wide-range type of pleading allowed
and the construction to be given to such pleadings. All the
Rules require is ‘a short and plain statement of the claim’ that
will give the defendant fair notice of what the plaintiff’s
claim is and the ground upon which it rests. Banco Continental
v. Curtiss Nat. Bank of Miami Springs, 406 F.2d 510, 513 (5th
Cir. 1969). Thus, a motion to dismiss for failure to state a
10
claim
should
not
be
granted,
especially
where
issues
of
negligence are involved, unless it appears to a certainty that
plaintiff would be entitled to no relief under any state of
facts. Id. at 510.
The Louisiana Supreme Court has noted that under Louisiana
Civil
Code
articles
2315
articles—
the
elements
causation,
and
damage.
and
the
general
a
cause
of
action
of
2316—
To
determine
whether
negligence
are
fault,
liability
exists
under the facts of a particular case, the supreme court has
adopted a duty-risk analysis. Paul v. Louisiana State Employees’
Group Ben. Program, 62 So.2d 136, 9 (La. App. 1 Cir. 5/12/00).
Under
this
analysis,
the
plaintiff
must
establish
that
the
conduct in question was a cause-in-fact of the resulting harm,
the
defendant
owed
a
duty
of
care
to
the
plaintiff,
the
requisite duty was breached by the defendant, and the risk of
harm was within the scope of protection afforded by the duty
breached. Id. at 5.
Plaintiff
is
alleging
that
Defendant
“participated
in
a
material way in the review of this drug screen and failed to act
reasonably
medical
in
review
her
participation
officer
in
responsible
so
much
for
as
the
she
was
accuracy
the
and
correctness of the results as they eventually are reported.”
(Rec.
Doc.
No.
12
at
9).
But
for
the
false
report
to
his
11
employer, Plaintiff claims, he would not have been terminated.
(Rec. Doc. No. 1 at 5).
While
Plaintiff
negligence,
is
Plaintiff’s
permitted
allegations
latitude
are
to
in
be
pleading
tested
for
sufficiency. Plaintiff does not allege that Defendant performed
the inaccurate test, nor does Plaintiff allege that Defendant
reported
the
inaccurate
result.
If
Defendant’s
conduct
is
separate and apart from the testing and the subsequent reporting
at issue here, Defendant could not have owed Plaintiff a duty to
act reasonably with respect to those acts. Essentially, what
Plaintiff is alleging is that Defendant failed to rectify, which
also raises an issue of causation.3 What Plaintiff characterizes
as
negligence
are
Defendant’s
omissions
after
the
test
was
conducted and had already been reported to his employer.
If
Defendant’s conduct was neither the cause-in-fact of the test
being
performed
inaccurately,
nor
the
result
being
reported,
this Court fails to see how Defendant’s conduct would constitute
the cause-in-fact of Plaintiff’s termination. Under these facts,
Plaintiff
would
not
be
entitled
to
relief
against
this
particular Defendant.
3
In the Complaint, Plaintiff states as fact that Defendant called him in regard to the results and that he needed to
speak with his employer’s Human Resources department in that regard.
12
Conclusion
Accordingly, and for the reasons enumerated above,
IT IS ORDERED that Defendant’s Motions to Dismiss are Granted.
New Orleans, Louisiana, this 16th day of September, 2014.
______________________________
UNITED STATES DISTRICT JUDGE
13
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