Tilson et al v. DISA, INC. et al

Filing 147

RULING: Defendant's Rule 12(b)(2) and 12(b)(5) 76 Motion to Dismiss is GRANTED on the Rule 12(b)(2) motion for lack of personal jurisdiction. Plaintiff's claims against Dr. Randy Barnett are hereby dismissed without prejudice. Signed by Chief Judge Shelly D. Dick on 1/22/2019. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
EMILE TILSON, JR.
AND DEBRA TILSON

CIVIL ACTION

VERSUS

17-240-SDD-EWD

DISA, INC., DISA GLOBAL SOLUTIONS,
INC., ET. AL.
RULING
This matter is before the Court on the Rule 12(b)(2) and 12(b)(5) Motion to
Dismiss1 by Defendant Dr. Randy Barnett (“Dr. Barnett” or “MRO”). Plaintiffs Emile Tilson,
Jr. (“Tilson”) and Debra Tilson (“Mrs. Tilson”) (collectively, “Plaintiffs”) have filed an
Opposition2 to this motion to which Dr. Barnett has filed a Reply.3 For the following
reasons, the Court finds that the Defendant’s motion to dismiss should be GRANTED.
I.

FACTUAL BACKGROUND4
Tilson was employed by Turner Industries ("Turner") as a boilermaker, pipefitter,

and member of the reactor crew who worked at the Exxon petrochemical plant in Baton
Rouge, Louisiana. Tilson was subject to a work-related random drug test. A Turner
employee collected Tilson’s urine specimen and sent it to CRL, an independent testing
lab, for testing.5

1

Rec. Doc. 76.
Rec. Doc. 93.
3
Rec. Doc. 103.
4
Rec. Doc. 42, Fifth Supplemental and Amending Complaint.
5
Id. at ¶ 11.
2

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After an initial test and a second confirmatory test, CRL reported to Turner’s
Medical Review Officer ("MRO") that Tilson's urine tests reflected the presence of
marijuana metabolite at a concentration of 14 ng/mL. The marijuana concentration
reporting threshold ordered by Turner was 10 ng/mL. In other words, Turner required CRL
to report as “positive” results above 10 ng/mL. Tilson was terminated by Turner based on
the test results.6
On March 6, 2017, Tilson filed suit in state district court against DISA Global
Solutions, Inc. ("DISA"), Psychemedics Corporation, and Clinical Pathology Laboratories,
Inc. ("CPL"),7 alleging various claims arising from the collection, testing, and reporting of
the workplace drug test. On November 15, 2017, Tilson filed a Fifth Supplemental and
Amending Petition for Damages8 against Dr. Barnett and co-defendants, Exxon, CRL,
and DISA.
As to Dr. Barnett specifically, Plaintiffs allege “DISA hired the MRO to review Mr.
Tilson’s test result.”9 “Upon information and belief,” Dr. Barnett is alleged to have
“improperly concluded that [Tilson’s] urine specimen was positive for an illegal substance
and identified Mr. Tilson as a drug user, an ‘inactive’ employee and ineligible to return to
work.”10 Plaintiffs’ remaining claims are blanket allegations against all Defendants,
collectively. Tilson’s against “Defendants” include unlawful termination following the
positive drug test, violations of Tilson’s civil rights, invasion of privacy, “interference with

6

Id. at ¶¶ 6, 16.
Rec. Doc. 27; DISA is a third-party administrator for drug testing that reports the results of drug tests from
specimens analyzed by a laboratory and reported by a Medical Review Officer.
8
Rec. Doc. 42.
9
Id. at ¶11.
10
Id.
7

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his employment,” negligence, violation of state and federal law including Americans with
Disabilities Act, the Louisiana Employment Discrimination Law, the Louisiana Human
Rights Act, the Louisiana Drug Testing Statutes (“LDTSA”), the NIDA guidelines, the U.S.
Department of Transportation’s (“DOT”) Procedures for Workplace Drug and Alcohol
Testing Programs, the Pipeline and Hazardous Materials Safety Administration’s
(“PHMSA”) drug and alcohol testing program, HIPPA, and the U.S. Department of Health
and Human Services’ (“HHS”) mandatory guidelines for federal drug testing.11
Dr. Barnett contends that Plaintiffs cannot establish minimum contacts for the
Court’s exercise of personal jurisdiction over him because Dr. Barnett was not the MRO
assigned to the drug test at issue.12 Further, Dr. Barnett argues that even if he had
contacts with Louisiana, “such conduct would not have conferred specific personal
jurisdiction over Dr. Barnett.”13
II.

LAW
A. General Personal Jurisdiction
When a nonresident defendant presents a motion to dismiss for lack of personal

jurisdiction, the plaintiff bears the burden of establishing the court’s jurisdiction over the
nonresident.14 When a district court rules on a motion to dismiss without an evidentiary
hearing, the plaintiff need only present a prima facie case of personal jurisdiction.15 At
this stage, uncontroverted allegations in the complaint must be taken as true, and conflicts
11

See Rec. Doc. 42; Fifth Supplemental and Amending Complaint.
Rec. Doc. 76-1, p. 11.
13
Id. at p. 13.
14
Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985); Brown v. Flowers Indus., Inc., 688 F.2d 328,
332 (5th Cir. 1982, cert den. 450 U.S. 1023, 103 S.Ct. 1275, 75 L.Ed.2d 496 (1983).
15
Trinity Indus., Inc. v. Myers & Assoc., Ltd., 41 F.3d 229, 230–31 (5th Cir.1995) (citing Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 472–73 [1985], and Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773 (5th
Cir.1986), cert. den., 481 U.S. 1015 (1987).
12

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between the parties' affidavits must be resolved in the plaintiff’s favor.16
To aid resolution of the jurisdictional issue, a court “may receive interrogatories,
depositions or any combination of the recognized methods of discovery ... But even if the
court receives discovery materials, unless there is a full and fair hearing, it should not act
as a fact finder and must construe all disputed facts in the plaintiff's favor and consider
them along with the undisputed facts.”17 “Once a plaintiff has established minimum
contacts, the burden shifts to the defendant to show that the assertion of jurisdiction would
be unfair.”18
“A federal district court has personal jurisdiction over a nonresident defendant to
the same extent as a state court in the state in which the district court is located.”19 Thus,
personal jurisdiction over a nonresident defendant attaches only when a defendant is
amenable to service of process under the forum state's long-arm statute and the exercise
of jurisdiction comports with the due process clause of the fourteenth amendment. In this
case, these two queries merge into one because Louisiana's long-arm statute extends
jurisdiction coextensively with the limits of the Due Process Clause of the U.S.
Constitution.20
Where a defendant has “continuous and systematic general business contacts”
with the forum state, the court may exercise “general jurisdiction” over any action brought

16

D.J. Inv., Inc. v. Metzeler Motorcycle Tire Agent Gregg, Inc., 754 F.2d 542, 546 (5th Cir.1985).
Walk Haydel & Assoc., Inc. v. Coastal Power Prod. Co., 517 F.3d 235, 241 (5th Cir. 2008) (holding that
a district court erred in requiring a plaintiff to establish more than a prima facie case even after a limited
pretrial evidentiary hearing) (internal citations and quotations omitted).
18
Id. at 245 (quoting Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir.1999)).
19
Walk Haydel, 517 F.3d at 242.
20
Moncrief Oil Int'l, Inc. v. OAO Gazprom, 481 F.3d 309, 311 (5th Cir. 2007); St. Martin & Mahoney v.
Patton, 863 F.Supp. 311, 313–14 (E.D.La.1994).
17

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against the defendant.21 Where contacts are less pervasive, a court may still exercise
“specific” jurisdiction “in a suit arising out of or related to the defendant's contacts with the
forum.”22
B. Specific Jurisdiction
The constitutional requirements for specific jurisdiction may be satisfied by
showing that the defendant has sufficient “minimum contacts” with the forum state such
that imposing a judgment would not “offend traditional notions of fair play and substantial
justice.”23 The Fifth Circuit follows a three-step analysis for this determination. First, a
court must determine “whether the defendant has minimum contacts with the forum state,
i.e., whether it purposely directed its activities toward the forum state or purposefully
availed itself of the privileges of conducting activities there.”24
This “minimum contacts”/”purposeful availment” inquiry is fact intensive. No one
element is decisive, and the number of contacts with the forum state is not, by itself,
determinative.25 A single, substantial act directed toward the forum can support specific
jurisdiction,26 but even multiple contacts, if “[r]andom, fortuitous, or attenuated ... are not
sufficient to establish jurisdiction.”27 What is significant is whether the contacts suggest
that the nonresident defendant purposefully availed himself of the privileges or benefits

21

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984).
Id. at 414; Luv N' care, Ltd., v. Insta–Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006).
23
Luv N' care, 438 F.3d at 469 (quoting Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)).
24
Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374, 378 (5th Cir. 2002); see also Hanson v.
Denckla, 357 U.S. 235, 250–251 (1958).
25
Luv N' care, 438 F.3d at 470.
26
See ASARCO, Inc. v. Glenara, Ltd., 912 F.2d 784, 786 (5th Cir.1990).
27
Moncrief Oil, 481 F.3d at 312 (citing Burger King, 471 U.S. at 479 (1985)).
22

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of the laws of the forum state.28
Second, a court considers “whether the plaintiff's cause of action arises out of or
results from the defendant's forum-related contacts.”29 At this step, the proper focus in
the analysis is on the “relationship among the defendant, the forum, and the litigation.”30
This is a claim-specific inquiry, as “the Due Process Clause prohibits the exercise of
jurisdiction over any claim that does not arise out of or result from the defendant's forum
contacts.”31
Finally, “[i]f the plaintiff successfully satisfies the first two prongs, the burden shifts
to the defendant to defeat jurisdiction by showing that its exercise of jurisdiction would be
unfair or unreasonable.”32 In this inquiry, a court analyzes five factors: “(1) the burden on
the nonresident defendant, (2) the forum state's interests, (3) the plaintiff's interest in
securing relief, (4) the interest of the interstate judicial system in the efficient
administration of justice, and (5) the shared interest of the several states in furthering
fundamental social policies.”33 “It is rare to say the assertion [of jurisdiction] is unfair after
minimum contacts have been shown.”34
C. Minimum Contacts
Personal jurisdiction may not be avoided merely because a defendant did not

28

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (citing Hanson 357 U.S. at 251,
254); Hydrokinetics, Inc. v. Alaska Mech., Inc., 700 F.2d 1026, 1028 (5th Cir.1983), cert. den., 466 U.S.
962 (1984).
29
Nuovo Pignone, 310 F.3d at 378.
30
Stroman Realty, Inc. v. Wercinski, 513 F.3d 476, 487 (5th Cir. 2008).
31
Conwill v. Greenberg Traurig, L.L.P., et al., No. 09-4365, 2009 WL 5178310 at *3 (E.D.La. Dec. 22, 2009)
(quoting Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 274–75 (5th Cir. 2006)).
32
Seiferth, 472 F.3d at 271 (citing Burger King, 471 U.S. at 382).
33
Luv N' care, 438 F.3d at 473; see also, Burger King Corp., 471 U.S. at 476–77 (listing 7 factors).
34
Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 615 (5th Cir. 2008)(citing Wein Air Alaska, Inc. v.
Brandt, 195 F.3d 208, 215 (5th Cir.1999)).

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physically enter the forum state. Although territorial presence frequently will enhance a
potential defendant's affiliation with a state and reinforce the reasonable foreseeability of
suit there, it is an inescapable fact of modern commercial life that a substantial amount of
business is transacted solely by mail and wire communication across state lines, thus
obviating the need for physical presence within a state in which business is conducted.
As long as a commercial actor's efforts are “purposefully directed” toward residents of the
state in question, courts have consistently rejected the notion that an absence of physical
contacts can defeat personal jurisdiction there.35
Even so, “merely contracting with a resident of the forum state does not establish
minimum contacts.”36 “A contract is ordinarily but an intermediate step serving to tie up
prior business negotiations with future consequences which themselves are the real
object of the business transaction. It is these factors—prior negotiations and
contemplated future consequences, along with the terms of the contract and the parties'
actual course of dealing—that must be evaluated in determining whether the defendant
purposefully established minimum contacts within the forum.”37
Although a single act, such as a telephone call or mailing a letter, can be sufficient
to establish minimum contacts, precedent is clear that communications alone are
insufficient when “the communications with the forum did not actually give rise to [the]
cause of action.”38 Rather, when communications relating to conducting business are the
only contacts, courts generally require some type of “continuing obligations” between the

35

Burger King, 471 U.S. at 476–77.
Moncrief Oil, 481 F.3d at 311.
37
Burger King, 471 U.S. at 479 (internal citations omitted).
38
Wein Air, 195 F.3d at 213; Aviles v. Kunkle, 978 F.2d 201, 205 (5th Cir.1992).
36

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defendant and residents of the forum, such as is found in an ongoing business
relationship, to find that the defendant availed himself of the privilege of conducting
business in the forum. Only then, “because his activities are shielded by ‘the benefits and
protections’ of the forum's laws, it is presumptively not unreasonable to require him to
submit to the burdens of litigation in that forum as well.”39
On the other hand, for claims of intentional tort, “[a] single act by a defendant can
be enough to confer personal jurisdiction if that act gives rise to the claim being
asserted.”40 “When the actual content of communications with a forum gives rise to
intentional tort causes of action, this alone constitutes purposeful availment.”41
III.

ANALYSIS
Applying the law to the facts of this case, the Court finds that it lacks general

jurisdiction over Dr. Barnett. Plaintiffs do not controvert that Dr. Barnett is domiciled and
resides in Pennsylvania and has declared under penalty of perjury that he is not a citizen
of Louisiana, has never worked in Louisiana, and does not have an office in Louisiana.42
Dr. Barnett states that he does not have any employees or agents in Louisiana, and does
not conduct or solicit business in Louisiana.43 Further, Dr. Barnett declares that he was
not involved in the collection, testing, evaluation, or interpretation of the drug test at issue.

39

Burger King, 471 U.S. at 476.
Lewis v. Fresne, 252 F.3d 352, 358 (5th Cir. 2001) (citing Brown v. Flowers Indus., 688 F.2d 328, 332–
33 (5th Cir.1984)(holding that one long distance telephone call alleged to constitute defamation was enough
to establish minimum contacts)).
41
Wein Air, 195 F.3d at 213 (5th Cir.1999); see also, Ross, 246 Fed.Appx. 856, 859–60 (5th Cir.
2007)(deeming allegations that out of state counsel communicated false information to client in Texas alone
sufficient to make prima facie case of specific personal jurisdiction).
42
Rec. Doc. 76-2; Declaration of Randy B. Barnett, D.O.
43
Id.
40

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In support of his contention that he was not the MRO assigned to Tilson’s case,
Dr. Barnett attached a “Medical Review Officer Worksheet,” which lists Jerome Cooper
as the MRO and details a phone interview between Jerome Cooper and Tilson concerning
Tilson’s drug test.44 This document includes the date and time of Tilson’s call to University
Services concerning the drug test, Jerome Cooper’s phone interview with Tilson, as well
as the results being verified by Jerome Cooper.45 Tilson appears to rely on a “DISA Drug
Test Result Certificate,” signed by Dr. Barnett as the MRO,46 to support his assertion that
Dr. Barnett handled the drug test at issue. However, this document does not indicate any
communication, or any conduct at all, on the part of Dr. Barnett. Furthermore, none of
Plaintiffs’ submissions contain an allegation that Dr. Barnett transacted business within
Louisiana. Plaintiff has failed to plead facts in their Complaint47 to establish that Dr.
Barnett has “continuous and systematic” contact with the state such that Dr. Barnett could
be considered “at home” in Louisiana.
In their Opposition, Plaintiffs argue that, because Dr. Barnett reviews “hundreds of
Louisiana employees,” and has a relationship with DISA, his contacts are more than
sufficient to justify the Court’s exercise of personal jurisdiction over him.48 Although not
binding on this Court, the Eastern District of New York analyzed similar allegations that
an MRO reviewed multiple drug tests of employees within the court’s jurisdiction.49 There,
the court found that, “although it was arguably foreseeable that [the MRO] would review

44

Rec. Doc. 76-1, p. 7.
Id.
46
Rec. Doc. 93-1.
47
Rec. Doc. 42.
48
Id. at pp. 3, 7.
49
Drake v. Laboratory Corp. of America Holdings, 2008 WL 4239844 (E.D.N.Y. Sept. 11, 2008).
45

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drug tests of New York employees, that connection did not arise from any purposeful
action by [the MRO] directed toward New York; rather, it was simply a consequence of
[the MRO’s] duties to review drug tests of Delta employees, wherever they were based.”50
The court analogized the MRO’s activities to that of a manufacturer who places its product
in the marketplace and found the MRO’s actions insufficient to establish the minimum
contacts required by due process.51
Similarly, although it is arguable that Dr. Barnett would review drug tests of
Louisiana employees, “[t]he substantial connection between the defendant and the forum
State necessary for a finding of minimum contacts must come about by an action of the
defendant purposefully directed toward the forum State.”52 Even accepting as true the
allegation that Dr. Barnett reviewed the drug test at issue, he is not alleged to have
purposefully directed his conduct toward Louisiana.
Plaintiffs argue the Complaint contains enough facts that establish minimum
contacts for the Court to exercise specific jurisdiction over Mr. Barnett.53 Plaintiffs appear
to borrow language, almost verbatim, from the Eastern District of Louisiana’s ruling in
Loiacano v. Disa Global Solutions, Inc.54 Plaintiffs reiterate, without citing Loiacano,
several cases discussed therein which all generally stand for the proposition that a
defendant has minimum contacts sufficient for the exercise of specific jurisdiction when
the contents of the communication give rise to an alleged intentional tort.55 In Loiacano,
50

Id. at *5.
Id. (citing World-Wide Volkswagen, 444 U.S. at 298 (“[T]he mere unilateral activity of those who claim
some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum
State.” (citations and internal quotation marks omitted)).
52
Asahi Metal Indus. Co., Ltd. v. Superior Court, 480 U.S. 102, 112 (1987).
53
Rec. Doc. 93, p. 3.
54
2014 WL 5317872 (E.D. La. Oct. 16, 2014).
55
Id.; Rec. Doc. 93, p. 4.
51

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a case involving similar facts, the MRO, an independent contractor for DISA domiciled in
Texas, made two phone calls to the Louisiana plaintiff to discuss the drug test results at
issue in that case. The court determined it lacked jurisdiction over the MRO because the
plaintiff did not allege that the MRO’s communications gave rise to an intentional tort.56
The court reasoned:
While the exercise of personal jurisdiction could otherwise be reasonable in
regard to the nature and quality of the communications in light of the claims
asserted, 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 Court's exercise of
specific jurisdiction over the nonresident Defendant.57
Plaintiffs attempt to distinguish Loiacano, and the cases cited therein, by
contending that, in this case, Plaintiffs have plead the intentional tort of defamation. Thus,
Plaintiffs argue that Dr. Barnett’s contacts with Louisiana are sufficient for the exercise of
specific jurisdiction. However, Plaintiffs have not plead any contacts with Louisiana.
Although Plaintiffs are correct that, in the context of intentional torts, “the minimum
contacts test is satisfied by a single act,” Tilson admits that “he did not receive a call from
the MRO.”58 In fact, the record evidence demonstrates the opposite. The “Medical Review
Officer Worksheet”59 for Tilson’s drug test, filed by Dr. Barnett, details a phone interview
with Tilson concerning the drug test results. However, the MRO who conducted the phone
interview is listed as Jerome Cooper, D.O.60 Considering that the facts of Loiacano are

56

Id. at *3.
Loiacano at *3-*4.
58
Rec. Doc. 42, ¶17.
59
Rec. Doc. 76-2.
60
Id. at 7, 8.
57

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nearly identical to the facts of this case, the Court finds that it lacks personal jurisdiction
over Dr. Barnett. Therefore, Dr. Barnett’s Rule 12(b)(2) motion shall be granted.
IV.

CONCLUSION
For the reasons set forth above, Defendant’s Rule 12(b)(2) and 12(b)(5) Motion to

Dismiss61 is GRANTED on the Rule 12(b)(2) motion for lack of personal jurisdiction.
Plaintiff’s claims against Dr. Randy Barnett are hereby dismissed without prejudice.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on January 22, 2019.

S

____________________________________
SHELLY D. DICK, CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

61

Rec. Doc. 76.

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