O'Berry v. ENSCO International, Inc et al
ORDER AND REASONS denying in part 6 Motion to Dismiss to the extent it seeks dismissal of Plaintiff's claims pursuant to Rule 12(b)(1), Rule 12(b)(2) of the Federal Rules of Civil Procedure and forum non conveniens. IT IS FURTHER ORDERED that Plaintiff is granted leave to amend his complaint to address the arguments raised in ENSCO plc's Rule 12(b)(6) motion to dismiss on or before Thursday, March 30, 2017. Signed by Judge Susie Morgan on 3/20/2017. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIS D. O’BERRY,
LLC, ET AL.
SECTION: “E” (1)
ORDER AND REASONS
Before the Court is a Motion to Dismiss filed by Defendant ENSCO plc. 1 Plaintiff
opposes ENSCO plc’s motion. 2
On April 21, 2016, Plaintiff, Willis D. O’Berry, filed his Seaman Complaint against
ENSCO International, Inc. and ENSCO plc. 3 On November 9, 2016, Plaintiff filed his first
amended complaint additionally naming ENSCO Limited and ENSCO Inc. as
Plaintiff alleges that on or about March 17, 2015, he was a mandatory participant
in a water survival training course required by Defendants and taught by their agent,
SMTC Global. 5 This course, which Plaintiff concedes was taught ashore, included
participating in an at-sea escape from a downed helicopter and boarding life rafts.6
1 R. Doc. 6. The Motion to
Dismiss was originally filed by Defendants ENSCO International, Inc. and ENSCO
plc. See id. On March 13, 2017, the Court granted Plaintiff’s Consent Motion to Dismiss ENSCO
International, Inc. without prejudice. R. Doc. 77. As a result, Record Document 6 only pertains to ENSCO
2 R. Docs. 11, 30, 52, 61.
3 R. Doc. 1.
4 R. Doc. 36. ENSCO International, Inc. and ENSCO Inc. were voluntarily dismissed. R. Doc. 77. The
remaining Defendants are ENSCO Limited and ENSCO plc. ENSCO limited filed an answer and does not
contest jurisdiction. R. Doc. 62.
5 R. Doc. 36, at 3-4.
6 R. Doc. 1, at 1.
Plaintiff, who was then sixty-two years old, alleges he had great difficulty getting out of
the helicopter and into a life raft. 7 Plaintiff alleges that, because of his age, he should have
been but was not medically cleared for such arduous physical activity. 8 Plaintiff alleges
that while struggling to climb into a life raft from the water, he was injured when he was
grabbed at the neck by fellow participants and was roughly hauled aboard the raft. 9
Plaintiff alleges that, as a result, he suffered serious cervical neck injuries for which a
lumbar fusion operation was required. 10 Plaintiff alleges he has not been paid
maintenance and cure. 11
On June 28, 2016, Defendant ENSCO plc filed a Rule 12 Motion to Dismiss. 12
ENSCO plc argues this Court lacks subject matter jurisdiction “as the alleged claims are
neither subject to admiralty jurisdiction nor federal question jurisdiction given that U.S.
law does not apply and the alleged incident took place onshore in Saudi Arabia.” 13 In
addition, ENSCO plc argues, “this Court lacks personal jurisdiction over the ENSCO
entities as the accident occurred overseas and only involves foreign parties who lack
sufficient minimum contacts with the United States.” 14 Next, ENSCO plc argues, “For
similar reasons, this case should also be dismissed on forum non conveniens grounds as
it would be an undue burden to force the defendants to litigate this suit in the United
States when all the activities and witnesses are located abroad.” 15 Finally, ENSCO plc
argues the Plaintiff’s Jones Act claims against it are also subject to dismissal on 12(b)(6)
R. Doc. 36, at 3.
Id. at 4
12 R. Doc. 6.
13 Id. at 1.
grounds considering the Plaintiff was never employed by ENSCO plc, but rather, was
employed by a separate and distinct Cayman corporation, ENSCO Limited. 16 Plaintiff
opposed this motion on July 19, 2016. 17 Shortly thereafter, ENSCO plc filed a
supplemental brief in support of its Rule 12 motion on July 26, 2016. 18
Following the initial filing of the motion to dismiss, the Court granted oral
argument 19 which was subsequently cancelled to allow the parties time to conduct
jurisdictional discovery. 20 After conducting jurisdictional discovery, Plaintiff filed a
supplemental memorandum in opposition on October 27, 2015. 21 As discussed above,
Plaintiff filed his amended complaint on November 9, 2016 naming ENSCO Limited and
ENSCO Inc. as Defendants. 22 On November 17, 2016, ENSCO plc filed its second
supplemental brief in support of its motion to dismiss. 23 On November 21, 2016, the Court
ordered the Defendants to file a separate memorandum clarifying whether general
personal jurisdiction exists in any jurisdiction in the United States over any of the named
Defendants in this action. 24 On November 22, 2016, the Court granted Plaintiff leave to
file his response to Defendant’s second supplemental brief. 25 On November 28, 2016,
Defendants filed their brief in response to the Court’s order. 26 In response, on December
2, 2016, Plaintiff filed a memorandum in opposition. 27 On January 23, 2017, Plaintiff filed
Id. at 2.
R. Doc. 11.
18 R. Doc. 14.
19 R. Doc. 10.
20 R. Doc. 15.
21 R. Doc.
22 R. Doc. 36.
23 R. Doc. 43.
24 R. Doc. 46.
25 R. Doc. 49.
26 R. Doc. 51.
27 R. Doc. 52.
Defendants. 28 On January 31, 2017, the Court granted ENSCO plc leave to file its Third
Supplemental Memorandum in support of its Motion to Dismiss. 29 On March 13, 2017,
the Court granted Plaintiff’s ex parte Motion to Dismiss Defendants Ensco International,
Inc. and Ensco Inc. without prejudice. 30
Federal courts are courts of limited jurisdiction; without jurisdiction conferred by
statute, they lack the power to adjudicate claims.” 31 A motion to dismiss under Federal
Rules of Civil Procedure 12(b)(1) challenges a federal court’s subject-matter jurisdiction. 32
Under Rule 12(b)(1), “[a] case is properly dismissed for lack of subject matter jurisdiction
when the court lacks the statutory or constitutional power to adjudicate the case.” 33 “Lack
of subject-matter jurisdiction may be found in the complaint alone, the complaint
supplemented by the undisputed facts as evidenced in the record, or the complaint
supplemented by the undisputed facts plus the court’s resolution of the disputed facts.” 34
“When, as here, grounds for dismissal may exist under both Rule 12(b)(1) and Rule
12(b)(6), the Court should, if necessary, dismiss only under the former without reaching
the question of failure to state a claim.” 35
R. Doc. 61.
R. Doc. 68.
30 R. Doc. 77.
31 In re FEMA Trailer Formaldehyde Products Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 286 (5th
32 See Fed. R. Civ. P. 12(b)(1).
33 Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal
quotation marks and citation omitted).
34 In re FEMA, 668 F.3d at 287.
35 Valdery v. Louisiana Workforce Comm’n, No. CIV.A. 15-01547, 2015 WL 5307390, at *1 (E.D. La. Sept.
“Personal jurisdiction ‘is an essential element of the jurisdiction of a district court,
without which it is powerless to proceed to an adjudication.’” 36 When a non-resident
defendant challenges personal jurisdiction in a motion to dismiss, the plaintiff bears the
burden of proving that personal jurisdiction exists. 37 If the district court rules on the
motion without an evidentiary hearing, as in this case, the plaintiff need only make a
prima facie showing of personal jurisdiction. 38 In determining whether the plaintiff has
made a prima facie showing of personal jurisdiction, the district court must take the
allegations of the complaint as true, except as controverted by opposing affidavits, and all
conflicts in the facts must be resolved in favor of plaintiffs. 39 Thus, the district court may
consider matters outside the complaint, including affidavits, when determining whether
personal jurisdiction exists. 40
To exercise personal jurisdiction over a non-resident defendant, two requirements
must be satisfied. “First, the forum state’s long-arm statute must confer personal
jurisdiction. Second, the exercise of jurisdiction must not exceed the boundaries of the
Due Process Clause of the Fourteenth Amendment.” 41 Because Louisiana’s long-arm
statute confers personal jurisdiction to the limits of constitutional due process, these two
inquiries become one and the same. 42
36 Anderson v. GlobalSantaFe Offshore Services, Inc., 924 F. Supp. 2d 738, 742 (E.D. La. 2013) (quoting
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)).
37 Luv N’ Care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006) (citing Wyatt v. Kaplan, 686 F.2d
276, 280 (5th Cir. 1982)).
38 See id.
39 Id. See also Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir. 1985).
40 Jobe v. ATR Mktg., Inc., 87 F.3d 751, 753 (5th Cir. 1996).
41 Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 270 (5th Cir. 2006) (citation omitted).
42 Luv N’ Care, 438 F.3d at 469; La. R.S. 13:3201(B).
The Due Process Clause of the Fourteenth Amendment “operates to limit the power
of a State to assert in personam jurisdiction over a nonresident defendant.” 43 For a court’s
exercise of personal jurisdiction over a non-resident defendant to be constitutional under
the Due Process Clause, (1) “that defendant [must have] 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 [must] not offend
‘traditional notions of fair play and substantial justice.’” 44
The “minimum contacts” test takes two forms, depending on the type of
jurisdiction the court seeks to exercise over the defendant: general jurisdiction or specific
jurisdiction. In addition, the Federal Rules of Civil Procedure provide for a third form of
personal jurisdiction in cases arising under federal law known as Rule 4(k)(2)
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss
a complaint, or any part of it, for failure to state a claim upon which relief may be granted
if the plaintiff has not set forth factual allegations in support of his claim that would entitle
him to relief. 45 “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.’”46
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413–14 (1984).
Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999) (citation omitted).
45 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
46 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
alleged.” 47 The court, however, does not accept as true legal conclusions or mere
conclusory statements, and “conclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to dismiss.” 48 “[T]hreadbare
recitals of elements of a cause of action, supported by mere conclusory statements” or
“naked assertion[s] devoid of further factual enhancement” are not sufficient. 49
In summary, “[f]actual allegations must be enough to raise a right to relief above
the speculative level.” 50 “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
show[n]’—that the pleader is entitled to relief.” 51 “Dismissal is appropriate when the
complaint ‘on its face show[s] a bar to relief.’” 52
In his Amended Complaint, Plaintiff asserts this Court has subject-matter
jurisdiction under the following: (1) 28 U.S.C. § 1331 federal question jurisdiction because
Plaintiff asserts a claim pursuant to the Jones Act, 46 U.S.C. § 30104, et seq.; (2)
alternatively, diversity jurisdiction, pursuant to 28 U.S.C. § 1332 (a)(1) and (2) because
the matter in controversy here exceeds the sum or value of $75,000, exclusive of interests
and costs, and is between citizens of different States and/or citizens of a foreign state; and
S. Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir.
2001) (citing Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
49 Iqbal, 556 U.S. at 663, 678 (citations omitted).
50 Twombly, 550 U.S. at 555.
51 Id. (quoting Fed. R. Civ. P. 8(a)(2)).
52 Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) (quotations omitted).
(3) alternatively, pursuant to 28 U.S.C. § 1333 original jurisdiction because Plaintiff
asserts a General Maritime law claim for maintenance and cure. 53
a. Does the Court Have Federal Question Jurisdiction Pursuant to 28 U.S.C. §
In his amended complaint, Plaintiff alleges this Court has federal question subject
matter jurisdiction pursuant to 28 U.S.C. § 1331 as a result of his claim under the Jones
Act, 46 U.S.C. § 30104, et seq. 54 A claim under the Jones Act is a federal question. 55
To establish federal question jurisdiction, a plaintiff must allege a colorable Jones
Act claim. 56 In order to allege a colorable Jones Act claim, a plaintiff must allege (1) he
was employed as a seaman connected to a vessel; (2) he was injured in the course of his
employment; and (3) his employer’s negligence caused his injury. 57
First, it does not appear that there is any dispute that the Plaintiff was employed
as a seaman connected to a vessel. Defendants do not raise the issue in their motion to
dismiss, and it is stated that Mr. O’Berry was employed on the ENSCO 88, “a Liberianflagged vessel.” 58 “The test for seaman status under the Jones Act is well established in
this circuit.” 59 The worker claiming such status must establish (1) that he was assigned
permanently to, or performs a substantial part of his work on, (2) a vessel in navigation
R. Doc. 36, at 2.
55 1 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 6-20 (5th ed. 2011) (internal citations
omitted). ENSCO plc argues there is no federal question jurisdiction for this Jones Act claim because it is
clear that United States law will not govern this case. See R. Doc. 6-1, at 4. ENSCO plc’s argument is based
on a choice of law analysis which is part of the inquiry for dismissal pursuant to forum non conveniens,
discussed below, and not subject-matter jurisdiction. See Robichaux v. Sunland Const., Inc., 2002 WL
31741211 (E.D. La. Dec. 5, 2002); Warn v. M/Y Maridome, 169 F.3d 625 (9th Cir. 1999); Halloway v. Pagan
River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012).
56 See, e.g., Halloway, 669 F.3d at 448.
57 See, e.g., id.
58 R. Doc. 6-1, at 17. (emphasis added).
59 Smith v. Odom Offshore Surveys, Inc., 791 F.2d 411, 415 (1986)
and (3) that the capacity in which he is employed, or the duty which he performs,
contributes to the function of the vessel or the accomplishment of its mission. 60
Second, whether or not Mr. O’Berry was injured in the course of his employment
is disputed but Plaintiff does allege he was injured during his participation “in a helicopter
underwater evacuation training course required as a condition of his employment.” 61 “A
seaman does not lose his status because he is temporarily assigned by his employer to
duties off his vessel.” 62
Third, Plaintiff alleges he sustained his injury as a result of the negligence of SMTC,
his employer’s agent. He claims that despite his age, he had not been medically cleared
for such arduous physical training and that his injury occurred when he was carelessly
and roughly grabbed by the neck by an SMTC employee. 63 A Jones Act employer can be
held liable for the acts of its agent. 64
Whether or not Plaintiff’s claims are supported by the facts is not the inquiry when
determining subject matter jurisdiction. 65 A federal court has subject matter jurisdiction
over a Jones Act claim so long as the plaintiff has properly “alleged each of the
elements.” 66 The Plaintiff has alleged a colorable Jones Act claim and the Court has
subject-matter jurisdiction over his Jones Act claim. As the Court has determined it has
See Barrett v. Chevron, U.S.A., 781 F.2d 1067, 1072-73 (5th Cir. 1986).
R. Doc. 36, at 3.
62 Smith, 791 F.2d at 415 (citing Guidry v. South Louisiana Contractors, Inc., 614 F.2d 337, 453 (5th Cir.
1980) (“[H]ow long a seaman’s status continues after a shoreside assignment is itself a fact question
dependent on such factors as the duration of the assignment, its relationship to the employer’s business,
whether the employee was free to accept or reject it without endangering his employment status and any
other factors relevant to the ultimate inquiry.”). See also Nunez v. Offshore Marine Contractors, Inc., 2013
WL 12106126 (S.D. Tex. Dec. 9, 2013) (denying defendant’s motion for summary judgement regarding one
of plaintiff’s Jones Act claims related to an injury that occurring during a training exercise.).
63 R. Doc. 36, at 3.
64 See Hasty v. Trans Atlas Boats, Inc., 389 F.3d 510, 513 (5th Cir. 2004) (citations omitted).
65 See Holloway, 669 F.3d 448.
66 See id. at 453.
federal question subject-matter jurisdiction over Plaintiff’s Jones Act claim, the Court
need not determine Plaintiff’s alternatively alleged sources of subject-matter jurisdiction.
Does the Court Have Personal Jurisdiction Over ENSCO plc?
ENSCO plc argues this suit should be dismissed pursuant to Rule 12(b)(2) of the
Federal Rules of Civil Procedure due to lack of personal jurisdiction. On July 26, 2016,
the Court cancelled the scheduled oral argument regarding ENSCO plc’s motion to
dismiss and granted the parties leave of court to conduct jurisdictional discovery. The
Court also ordered the Plaintiff to file a supplemental memorandum in response to the
ENSCO plc’s motion to dismiss by Wednesday, October 26, 2016. In his supplemental
memorandum, Plaintiff argues the Court has general and specific personal jurisdiction
over ENSCO plc and alternatively, personal jurisdiction pursuant to 4(k)(2) and (3) of the
Federal Rules of Civil Procedure.
According to ENSCO plc, it is a foreign corporation established and operating
under the laws of the United Kingdom. 67 ENSCO plc serves as a holding and parent
company. 68 “It has no employees but various employees on other payroll companies in
the Eastern and Western Hemispheres served as officers for the company.” 69
a. The Court Does Not Have General Jurisdiction Over ENSCO Plc
A court may exercise general jurisdiction over a non-resident defendant when that
defendant’s contacts with the forum state are “continuous and systematic,” regardless of
whether such contacts are related to the plaintiff’s cause of action. 70 Stated differently,
“[g]eneral jurisdiction will attach, even if the act or transaction sued upon is unrelated to
R. Doc. 6-1, at 2.
R. Doc. 51, at 2.
70 Id. (citing Helicopteros, 466 U.S. at 413–14).
the defendant’s contacts with the forum state, if the defendant has engaged in ‘continuous
and systematic’ activities in the forum state.” 71 In Goodyear Dunlop Tires Operations,
S.A. v. Brown, the Supreme Court explained, “for an individual, the paradigm forum for
the exercise of general jurisdiction is the individual’s domicile; for a corporation it is an
equivalent place, one in which the corporation is fairly regarded as at home.” 72 That is,
the corporation must have substantial, continuous, and systematic contacts with the
forum state so as to “render [it] essentially at home in the forum state.” 73 “It is, therefore,
incredibly difficult to establish general jurisdiction in a forum other than the place of
incorporation or principal place of business.” 74
As stated above, it is generally “incredibly difficult to establish general jurisdiction
in a forum other than the place of incorporation or principal place of business.” 75 Plaintiff
has put forward a Daily Drilling Report dated July 30, 2013 in his response to ENSCO
plc’s second supplemental brief in support of its Rule 12 motion to dismiss. 76 This report
identifies “Ensco plc” as the Contractor of Rig No. 8506 located in the De Soto Canyon
which Plaintiff alleges is in the waters of the Eastern District of Louisiana. 77 According to
Plaintiff, “Obviously, this daily drilling report evidences ongoing, day-to-day, long term
petroleum exploration activity in the waters of the Eastern District. This is a systematic
business contact with Louisiana and the Eastern District. No other interpretation is
rationally possible.” 78
721 Bourbon, Inc. v. House of Auth, LLC, 140 F. Supp. 3d 586, 592 (E.D. La. 2015) (citations omitted).
564 U.S. 915, 924 (2011).
73 Daimler AG v. Bauman, 134 S. Ct. 746, 754 (2014) (citing Goodyear, 564 U.S. 915).
74 Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014) (citing Daimler AG, 134 S. Ct. at
760; Helicopteros, 466 U.S. at 411–12).
75 Monkton Ins. Servs., Ltd., 768 F.3d at 432 (citing Daimler AG, 134 S. Ct. at 760; Helicopteros, 466 U.S.
76 R. Doc. 49-3.
77 R. Doc. 49, at 2.
To make a prima facie showing of general jurisdiction, Plaintiff must produce
evidence that affirmatively shows that ENSCO plc’s contacts with Louisiana are sufficient
to satisfy due process requirements. 79 ENSCO plc’s unrelated contacts must be so
substantial, continuous and systematic so as to render it essentially at home in
Louisiana. 80 Even assuming the allegations related to the drilling report are true, ENSCO
plc has not presented a prima facie showing that Louisiana is a place “in which [Ensco
plc] is fairly regarded as home.” 81 Given the high threshold required to show that general
jurisdiction exists over a defendant in a forum other than its place of incorporation or its
principal place of business, the Court finds the Plaintiff has failed to make a prima facie
showing of general jurisdiction. As a result, the Court does not have general jurisdiction
over ENSCO plc.
b. The Court Does Not Have Specific Jurisdiction Over ENSCO plc
When the defendant’s contacts are less pervasive, a court may exercise specific
jurisdiction over a non-resident defendant “in a suit arising out of or related to the
defendant’s contacts with the forum.” 82 Specific jurisdiction exists, for example, where a
non-resident defendant “has ‘purposefully directed its activities at the forum state and the
litigation results from alleged injuries that arise out of or relate to those activities.’” 83
Specific jurisdiction also exists where a non-resident defendant “purposefully avails itself
of the privilege of conducting activities within the forum State, thus invoking the benefits
See Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 217 (5th Cir. 2000) (citations omitted).
See Id. (citations omitted); Daimler AG, 134 S. Ct. at 760.
81 See Anderson, 924 F. Supp. 2d at 744 (quoting Goodyear, 564 U.S. at 922-23).
82 Luv N’ Care, 438 F.3d at 469.
83 Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 868 (5th Cir. 2001) (quoting
Alphine View Co. v. Atlas Copco A.B., 205 F.3d 208, 215 (5th Cir. 2000)).
and protections of its laws.” 84 “The non-resident’s ‘purposeful availment’ must be such
that the defendant ‘should reasonably anticipate being haled into court’ in the forum
state.” 85 The Fifth Circuit established a three-factor analysis to guide courts in assessing
the presence of specific personal jurisdiction:
(1) whether the defendant has minimum contacts with the forum state, i.e.,
whether it purposely directed its activities toward the forum state or
purposely availed itself of the privileges of conducting activities there; (2)
whether the plaintiff's cause of action arises out of or results from the
defendant's forum-related contacts; and (3) whether the exercise of
personal jurisdiction is fair and reasonable. 86
To make a prima facie showing of specific personal jurisdiction, the plaintiff need
only satisfy the first two factors. 87 “Although jurisdictional allegations must be accepted
as true, such acceptance does not automatically mean that a prima facie case for specific
jurisdiction has been presented.” 88 Establishing a prima facie case still requires the
plaintiff to show the nonresident defendant’s purposeful availment of the benefits and
protections of and minimum contacts with the forum state.” 89 A district court need not
credit conclusory allegations, even if uncontroverted. 90 A Plaintiff may be required to
84 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (citing Hanson v. Denckla, 357 U.S. 235, 253
85 Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 419 (5th Cir. 1993) (quoting World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)).
86 Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374, 378 (5th Cir. 2002); Luv N’ Care, 438 F.3d
87 Athletic Training Innovations, LLC v. eTagz, Inc., 955 F. Supp. 2d 602, 613 (E.D. La. 2013). See also 721
Bourbon, 140 F. Supp. 3d at 592–93; Luv N’ Care, 438 F.3d at 469. If the plaintiff makes a prima facie
showing, the burden of proof with respect to the third factor shifts to the defendant to “present a compelling
case that the presence of some other considerations would render jurisdiction unreasonable.”
Autogenomics, Inc. v. Oxford Gene Tech., 566 F.3d 1012, 1018–19 (Fed. Cir. 2009). See also Athletic
Training Innovations, supra, at 613.
88 Panda Brandywine Corp., 253 F.3d at 868.
89 Id. (citing Burger King, 471 U.S. at 474 (“[T]he constitutional touchstone remains whether the defendant
purposefully established ‘minimum contacts’ in the forum State.”)).
90 Id. at 869 (citing Felch v. Transportes Lar-Mex, 92 F.3d 320, 326 n.16 (5th Cir. 1996)).
produce evidence affirmatively demonstrating the defendant’s purposeful availment of
the benefits and protections of and minimum contacts with the forum state. 91
Although Plaintiff argues this Court has specific jurisdiction over ENSCO plc,
Plaintiff does not allege that the injuries leading to this litigation occurred here. When
that is the case, a court may have specific jurisdiction over a tort only if the plaintiff proves
that his injuries arise out of or result from the defendant’s purposefully directed activities
toward the forum state. 92 Plaintiff has failed to make a prima facie showing of specific
jurisdiction as he has not alleged any facts in any of his filings which demonstrate that (1)
ENSCO plc has minimum contacts with Louisiana or purposefully availed itself of the
privileges of conducting activities here or that (2) his cause of action arises out of or
results from ENSCO plc’s Louisiana-related contacts. The Court finds it does not have
specific jurisdiction over ENSCO plc in this matter.
c. The Court Has Rule 4(k)(2) Jurisdiction Over ENSCO plc
Federal Rule of Civil Procedure 4(k)(2) provides:
For a claim that arises under federal law, serving a summons or filing a
waiver of service establishes personal jurisdiction over a defendant if:
(A) the defendant is not subject to jurisdiction in any state’s court of
general jurisdiction; and
(B) exercising jurisdiction is consistent with the United States
Constitution and laws. 93
The Rule was enacted to fill an important gap in the jurisdiction of federal courts
in cases arising under federal law:
91 Id. (“Appellants’ sole evidence is their state court petition, which alleges ‘on information and belief’ that
Appellee knew Appellants are Texas residents and knew its actions would intentionally cause harm in
Appellants in Texas. Appellants present no other evidence of Appellee’s contacts with Texas relating to
Appellants’ claims, and thus the district court properly concluded that the allegations are merely
92 Anderson, 924 F. Supp. 2d at 745 (citing Clark v. Moran Towing & Transp. Co., Inc., 738 F. Supp. 1023
(E.D. La. 1990)).
93 Fed. R. Civ. P. 4(k)(2). Service was made upon ENSCO plc through personal service on three of its Senior
Vice Presidents. See R. Docs. 25, 26, 27.
Thus, there was a gap in the courts’ jurisdiction: while a defendant may have
sufficient contacts with the United States as a whole to satisfy due process
concerns, if she had insufficient contacts with any single state; she would
not be amendable to service by a federal court sitting in that state . . . Rule
4(k)(2) was adopted in response to this problem of a gap in the courts’
jurisdiction . . . 94
“The Fifth Circuit has adopted the burden-shifting framework adopted by the
United State Court of Appeals for the Seventh Circuit.” 95 Under this framework:
The Plaintiff must make a prima facie case that the rule applies by “showing
(1) that the claim asserted arises under federal law, (2) that personal
jurisdiction is not available under any situation-specific federal statue, and
(3) that the putative defendant’s contacts with the nation as a whole suffice
to satisfy the applicable constitutional requirements. Additionally, the
plaintiff must certify that, based on the information that is readily available
to the plaintiff and his counsel, the defendant is not subject to suit in the
courts of general jurisdiction of any state. Once plaintiff has made a prima
facie case, then the burden shifts to the defendant to produce evidence that
demonstrates that it is subject to jurisdiction in another state and/or that it
has insufficient contacts with the United States as a whole. 96
The Fifth Circuit has concluded that cases falling under a federal court’s admiralty
jurisdiction are “claim[s] arising under federal law” for the purpose of Rule 4(k)(2). 97
Therefore, Rule 4(k)(2) applies in the present case if Plaintiff O’Berry can demonstrate
that “(1) the defendant in question is not subject to the general jurisdiction of any other
state, and (2) that exercising jurisdiction is consistent with the due process clause of the
Fifth Amendment, meaning that the defendant has sufficient minimum contacts with the
United States as a whole.” 98 “The Fifth Circuit has held that a ‘piecemeal analysis of the
existence vel non of jurisdiction in all fifty states is not necessary. Rather, so long as a
Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 650-51 (5th Cir. 2004) (quoting World Tanker
Carriers Corp. v. M/V Ya Mawlaya, 99 F.3d 717, 721-22 (5th Cir. 1996)).
95 Johnson v. PPI Technology Services, L.P., 926 F. Supp. 2d 873, 882-83 (E.D. La. 2013) (citing ISI Int’l
Inc. v. Borden Ladner Gervais LLP, 226 F.3d 648 (7th Cir. 2001)).
96 Id. at 883 (citing United States v. Swiss American Bank, Ltd., 191 F.3d 30, at 41 (1st Cir. 1999)).
97 See World Tanker Carriers Corp., 99 F.3d at 723.
98 Johnson, 926 F. Supp. 2d at 882 (E.D. La. 2013) (citing Adams v. 364 F.3d at 651).
defendant does not concede jurisdiction in another state, a court may use 4(k)(2) to confer
jurisdiction.’” 99 “If . . . the defendant contends that he cannot be sued in the forum state
and refuses to identify any other where suit is possible, then the federal court is entitled
to use Rule 4(k)(2).” 100
On November 21, 2016, the Court issued its Order requiring all named Defendants
to file a separate memorandum clarifying whether general jurisdiction exists in any
jurisdiction in the United States over each of the named Defendants. 101 ENSCO plc did
not fully respond to the Court’s Order, and instead, merely provided a historical account
of ENSCO’s evolving corporate structure, adding, “There is no subject matter or personal
jurisdiction over [ENSCO plc] in the Eastern District of Louisiana.” 102 However, in its
Third Supplemental Brief in Support of its Motion to Dismiss, ENSCO plc represents, “In
this case, there is no basis for jurisdiction in any specific District Court because [it does]
not have any contact with the United States and [is a] foreign corporation that
maintain[s] all of [its] activities overseas.” 103 This is sufficient to show that ENSCO plc
has not conceded it is subject to the general jurisdiction of any state.
ENSCO plc argues its contacts with the United States are insignificant and therefore
are not sufficient to demonstrate that exercising jurisdiction over ENSCO plc is consistent
with the due process clause of the Fifth Amendment. 104 Plaintiff, however, has
Ogden v. GlobalSantaFe Offshore Services, 31 F. Supp. 3d 832, 839-40 (E.D. La. 2014) (quoting Adams,
364 F.3d at 651).
100 Id. at 840. See also, Johnson, 926 F. Supp. 2d at 884-85. In Johnson, the defendant argued it should be
required to stipulate to jurisdiction in some other forum as a result of its denial of jurisdiction in the court
hearing its motion to dismiss. Id. at 884. The Fifth Circuit, rejecting defendant GSF’s argument, stated,
“Unfortunately for GSF, that is exactly what the Fifth Circuit has stated that Rule 4(k)(2) requires it to do.”
Id. The Court also explained, “Moreover, this Court has given Defendants ample opportunity to make such
an assertion and, yet, Defendants have refused to do so.” Id.
101 R. Doc. 46.
102 R. Doc. 51, at 4.
103 R. Doc. 68, at 2.
104 R. Doc. 43, at 8-9 (citing Porina v. Marward Shipping Co., 521 F.3d 122 (2d Cir. 2008)).
demonstrated that ENSCO plc has sufficient minimum contacts with the United States as
a whole. Plaintiff points out that ENSCO plc “maintains a U.S.-based western hemisphere
operational headquarters in Houston which is staffed by three Senior Vice Presidents and
apparently Senior Legal Counsel (i.e., personnel).”105 In his deposition, Christian Ochoa,
Ensco, Inc.’s Director of Tax, stated that one of ENSCO plc’s “operational headquarters”
is in Houston. 106 Ochoa also acknowledged that ENSCO plc’s (1) Senior Vice President for
Western Hemisphere Activities, Gilles Luca; (2) Vice President for Human Resources,
Maria Silvia; and (3) Senior Vice President for Technical Matters, John Knowlton, all have
offices in Houston, Texas. 107 Additionally, Ochoa stated that Steve Brady, who was
previously Senior Vice President, Western Hemisphere, and is now Senior Vice President,
Eastern Hemisphere, was based in Houston before being relocated to London as a result
of his promotion. 108
The Court finds that ENSCO plc has sufficient contacts with the United States as a
whole such that exercising jurisdiction over ENSCO plc pursuant to Rule 4(k)(2) of the
Federal Rules of Civil Procedure does not exceed the boundaries of the due process clause
of the Fourteenth Amendment. 109
ENSCO plc’s Motion to Dismiss on the Basis of Forum Non Conveniens
In its Motion to Dismiss, ENSCO plc argues the Plaintiff’s claims should be
dismissed on the basis of forum non conveniens. 110 ENSCO plc argues the Court should
R. Doc. 49, at 8 (emphasis in original).
R. Doc. 30-3, at 5.
107 R. Doc. 30-3, at 4.
109 Given that Louisiana’s long-arm statute confers personal jurisdiction to the limits of constitutional due
process, the Court need not further inquire as to whether its exercise of personal jurisdiction over ENSCO
plc would violate Louisiana law. See Luv N’ Care, 438 F.3d at 469; La. R.S. 13:3201(B).
110 R. Doc. 6-1, at 12.
inquire whether U.S. or foreign law applies and, if foreign law applies, “Whether another
adequate forum is available where all defendants are amenable to process.” 111 ENSCO plc
argues that an application of the Lauritzen-Rhoditis factors indicate that either British or
Saudi Arabian law should govern this lawsuit and that it is amenable to suit in either the
United Kingdom, Cayman Islands or Saudi Arabia. 112
In Gonzalez v. Naviera Neptuno A.A., the Fifth Circuit explained, “Although the
plaintiff’s choice of forum should not ordinarily be disturbed, the doctrine of forum non
conveniens permits a court to resist imposition upon its jurisdiction even when subject
matter jurisdiction is conferred by statute or personal jurisdiction is conferred by
minimum contacts or consent.” 113 In determining whether a particular forum is
appropriate, the court is required to balance the private interests of the litigants as well
as the public interest of the chosen forum. 114 The private interests to be considered
include: (i) relative ease of access to sources of proof; (ii) availability of compulsory
process for attendance of unwilling, and the cost of obtaining attendance of willing,
witnesses; (iii) possibility of view of premises, if a view would be appropriate to the action;
(iv) all other practical problems that make trial of a case easy, expeditious and
inexpensive; and (v) enforceability of a judgment if one is obtained. 115 The public interest
factors include: (i) the administrative difficulties flowing from court congestion; (ii) the
local interest in having localized controversies resolved at home; (iii) the interest in
having the trial of a case in a forum that is familiar with the law that governs the action;
(iv) the avoidance of unnecessary problems and conflicts of law, or an application of
Id. (citations omitted).
Id. at 12-13.
113 832 F.2d 876, 878 (5th Cir. 1987) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)).
115 Id. (citing Gilbert, 330 U.S. at 508).
foreign law; and (v) the unfairness of burdening citizens in an unrelated forum with jury
In its Motion to Dismiss, ENSCO plc argues, “In assessing forum non conveniens,
the court must first decide whether U.S. law or foreign law applies.” 117 The Fifth Circuit
previously applied a “’two-prong admiralty forum non conveniens analysis’ which
required that the district court determine the choice of law before addressing the issue of
forum non conveniens.” 118 “However, this is no longer binding law within the Fifth Circuit
as Vaz Borralho was expressly overruled on this very issue.” 119 “Courts no longer use a
modified forum non convenience [sic] analysis in any cases, including those arising under
the Jones Act and involving general maritime law. Now, choice of law is just one of the
many considerations in the forum non conveniens analysis and alone is not
The Fifth Circuit has explained that “[i]n deciding whether to dismiss a case for
forum non conveniens, the district court must first determine whether an adequate
alternative forum is available.” 121 “If an alternative forum is both adequate and available,
the district court must then weigh the various private and public factors to determine
whether dismissal is warranted.” 122 “Ultimately, the inquiry is where the trial will best
serve the convenience of the parties and the interests of justice.” 123 “A plaintiff’s choice of
116 Id. (citing Gilbert, 330 U.S. at 510; In re Air Crash Disaster Near New Orleans, La. On July 9, 1982, 821
F.2d 1147, 1162-63 (5th Cir. 1987)).
117 R. Doc. 6-1, at 12 (citing Volyrakis v. M/V ISABELLE, 668 F.2d 863 (5th Cir. 1982)).
118 Layson v. Baffin Investments, Ltd., 2015 WL 5559886, at *3 (M.D. La. Sept. 18, 2015) (quoting Vaz
Borralho, et al. v. Keydril Co., et al., 696 F.2d 379 (5th Cir. 1983)).
119 Id. (citing In re: Air Crash, 821 F.2d at 1163).
120 Id. (citations omitted).
121 O’Keefe v. Noble Drilling Corp., 347 F. App’x 27, 31 (5th Cir. 2009) (citing In re: Air Crash, 821 F.2d at
122 Id. (citing In re: Air Crash, 821 F.2d at 1165)
123 Id. (citing DTEX, LLC, v. BBVA Bancomer, S.A., 508 F.3d 785, 794 (5th Cir. 2007)).
forum is not conclusive, and ‘a foreign plaintiff’s selection of an American forum deserves
less deference than an American citizen’s selection of his home forum.’” 124 “The
Defendant has the burden of proof on all elements.” 125 In In re: Air Crash, the Fifth
This burden of persuasion runs to all the elements of the forum non
conveniens analysis. Therefore, the moving defendant must establish that
an adequate and available forum exists as to all defendants if there are
several. If the moving defendant carries this initial burden, it must also
establish that the private and public interests weigh heavily on the side of
trial in the foreign forum. The Supreme Court had held that a moving
defendant need not submit overly detailed affidavits to carry its burden, but
it “must provide enough information to enable the district court to balance
the parties interests.” 126
Defendant does not argue another forum is necessarily more convenient, but
instead, argues it is amenable to suit in either the United Kingdom, Cayman Islands or
Saudi Arabia based largely on an argument rooted in a choice-of-law analysis. 127 Further,
the Defendant provides little to no support for its argument that the public and private
factors favor litigating this case in either of the three identified alternative forums abroad.
Having considered the presumptions that (1) plaintiff’s choice of forum should not
ordinarily be disturbed and (2) an American citizen’s selection of his home forum
deserves more deference than a foreign plaintiff’s selection as an American forum, in
addition to the fact that the burden of proving forum non conveniens falls on the
Defendant, the Court finds ENSCO plc has not met its burden of proof. ENSCO plc’s
motion to dismiss on the basis of forum non conveniens is denied.
Has Plaintiff Stated a Viable Claim Against ENSCO plc?
Id. (citing In re: Air Crash, 821 F.2d at 1164).
Id. (citing DTEX, LLC, 508 F.3d at 794).
126 In re: Air Crash, 821 F.2d at 1164-65 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 258 (1981)).
127 Id. at 12-13.
ENSCO plc contends that beyond jurisdiction and venue, the Plaintiff’s Jones Act
and General Maritime claims against ENSCO plc are also subject to dismissal on 12(b)(6)
grounds considering the Plaintiff was never employed by ENSCO plc, but rather, was
employed by a separate and distinct Cayman corporation, co-Defendant ENSCO
“A Jones Act lawsuit may be properly filed only against the seaman’s employer.” 129
Courts have held, however that “’the existence of . . . an employer/employee relationship
must be determined under maritime law’ and that ‘resolution of the issue is normally a
factual one within the province of a jury.’” 130
As the Fifth Circuit has explained, “A Jones Act claim also requires proof of an
employment relationship either with the owner of the vessel or with some other employer
who assigns the work to a task creating a vessel connection, for ‘(b)y the express terms of
the Jones Act an employer-employee relationship is essential to recovery.’” 131 “In
determining who is an employer for recovery under the Jones Act, control is the critical
inquiry.” 132 “The Fifth Circuit has established that the ‘factors indicating control over an
employee include payment, direction, and supervision of the employee include payment,
direction, and supervision of the employee. Also relevant is the source of the power to hire
R. Doc. 6, at 2. To the extent ENSCO plc challenges whether the Eastern District of Louisiana is a proper
venue, the Court finds that its finding of 4(k)(2) personal jurisdiction satisfies this matter. Although the
Court is cognizant that the question of venue is distinct from the question of personal jurisdiction, Rule
4(k)(2) essentially establishes proper venue through its rule that a foreign defendant may be sued in any
district when the defendant has sufficient contacts with the United States as a whole. See Johnson, 926 F.
Supp. 2d. at 883 n.10. See also, ISI Intern., Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 552-53 (7th
Cir. 2001); Allied Van Lines, Inc. v. Beaman, 2008 WL 4866052, at *2 n.1 (N.D. Ill. July 21, 2008).
129 1 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 6-23 (5th ed. 2011) (internal citations
130 Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 453 (quoting Wheatly v. Gladden, 660
F.2d 1024, 1026 (4th Cir. 1981)).
131 Guidry v. South Louisiana Contractors, Inc., 614 F.2d 447, 452 (5th Cir. 1980) (quoting Spinks v.
Chevron Oil Co., 507 F.2d 216, 224 (5th Cir. 1975)).
132 Cordova v. Crowley Marine Servs., 2003 U.S. Dist. LEXIS 13567, at *7 (E.D. La. July 29, 2003).
and fire.’” 133 “Further, the Fifth Circuit has reasoned that ‘the control which is exercised
must be substantial; the mere possibility of some control over the actions of an employee
will not suffice to define an employer-employee relationship.’” 134
It is undisputed that Plaintiff was employed by ENSCO Limited. 135 Plaintiff,
however, maintains that he was also the concurrent employee of, or the borrowed
employee of ENSCO plc. 136 In his Second Supplemental Memorandum in Opposition to
Defendant’s Motion to Dismiss, oppositions to ENSCO plc’s motion to dismiss, Plaintiff
argues ENSCO plc:
Uses ‘separate’ but wholly-owned direct and indirect subsidiaries as if they
were departments. One subsidiary (Ensco International, Inc.) provides
insurance benefits regardless where a U.S. citizen employee is assigned, and
another (Ensco, Inc.) provides human resources and payroll services
regardless of where the U.S. citizen employee is assigned. And U.S. citizen
employees like Mr. O’Berry are paper-transferred between Ensco Offshore
Company (Gulf of Mexico) and Ensco Limited (overseas). 137
The Court construes these new factual allegations in Plaintiff's opposition memorandum
as a motion to file an amended complaint. 138 Rule 15(a) "requires the trial court to grant
leave to amend freely, and the language of this rule evinces a bias in favor of granting
leave to amend." 139 A district court must possess a "substantial reason" to deny a motion
Id. (quoting Volyrakis v. M/V Isabelle, 668 F.2d 863, 866 (5th Cir. 1982)).
135 R. Doc. 36, at 2.
137 R. Doc. 52, at 3.
138 See Morin v. Moore, 309 F.3d 316, 323 (5th Cir. 2002) ("This Court has held, that in the interest of
justice a revised theory of the case set forth in the plaintiff's opposition should be construed as a motion to
amend the pleadings filed out of time and granted by the district court pursuant to the permissive command
of Rule 15.") (citing Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972)); Stover v. Hattiesburg Pub.
Sch. Dist., 549 F.3d 985, 989 n.2 (5th Cir. 2008) (citing with approval cases in which the district court
construed new allegations in opposition memorandum as motion to amend under Rule 15(a)).
139 Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 286 (5th Cir. 2002) (internal quotation marks
under Rule 15(a). 140 No such reason exists in this case. The Court will allow Plaintiff an
opportunity to amend his complaint.
For the foregoing reasons;
IT IS ORDERED that ENSCO plc’s Motion to Dismiss is DENIED to the extent
it seeks dismissal of Plaintiff’s claims pursuant to Rule 12(b)(1), Rule 12(b)(2) of the
Federal Rules of Civil Procedure and forum non conveniens.
IT IS FURTHER ORDERED that Plaintiff is granted leave to amend his
complaint to address the arguments raised in ENSCO plc’s Rule 12(b)(6) motion to
dismiss on or before Thursday, March 30, 2017. If Plaintiff timely files his second
amended complaint, Defendant’s Rule 12(b)(6) Motion to Dismiss 141 will be dismissed
without prejudice as moot. ENSCO plc will be free to re-urge its motion to dismiss in a
timely fashion after Plaintiff’s second amended complaint is filed.
New Orleans, Louisiana, this 20th day of March, 2017.
_____________ ________ _________
UNITED STATES DISTRICT JUDGE
Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004). In deciding whether to grant leave under Rule
15(a), courts may consider factors such as "undue delay, bad faith or dilatory motive on the part of the
movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, and futility of the amendment." Jones v. Robinson
Prop. Grp., LP, 427 F.3d 987, 994 (5th Cir. 2005).
141 R. Doc. 6.
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