Georgia Mobile Dental, LLC et al v. Napper et al

Filing 15

RULING denying 5 Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue or, in the Alternative, to Transfer Venue to the Middle District of Tennessee. Signed by Chief Judge Shelly D. Dick on 11/16/2018. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

GEORGIA MOBILE DENTAL, LLC,
J. CODY COWEN, and MICHAEL
JUBAN

CIVIL ACTION

VERSUS

18-269-SDD-EWD

MARK NAPPER, CARE SERVICES
MANAGEMENT, LLC, and MARQUIS
HEALTH SYSTEMS, LLC
RULING
This matter is before the Court on the Motion to Dismiss for Lack of Personal
Jurisdiction and Improper Venue or, in the Alternative, to Transfer Venue to the Middle
District of Tennessee1 filed by Defendants, Care Services Management, LLC (“CSM”),
Marquis Health Systems, LLC (“MHS”), and Mark Napper (“Napper”) (collectively,
“Defendants”). Plaintiffs, Georgia Mobile Dental, LLC, J. Cody Cowen (“Cowen”), and
Michael Juban (“Juban”) ( collectively, “Plaintiffs”) have filed an Opposition2 to this motion,
to which Defendants filed a Reply.3 For the reasons which follow, the Court finds that
both venue and the exercise of personal jurisdiction over the Defendants is proper, and

1

Rec. Doc. No. 5.
Rec. Doc. No. 6.
3
Rec. Doc. No. 12.
2

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the motion shall be denied.
I.

FACTUAL BACKGROUND
This suit arises from a dispute involving a contractual business relationship

between Plaintiffs and Defendants.4 Plaintiffs assert that Napper, a domiciliary of
Tennessee, on behalf of CSM and MHS,5 contacted Plaintiffs to solicit a business
opportunity to enter the mobile dentistry industry to the mutual benefit of all parties.6
Following communications between the parties, Napper traveled to Baton Rouge,
Louisiana, on May 14, 2016 to meet with Juban and others7 at Sushi Yama, a restaurant
in Baton Rouge, so that Napper could present a business opportunity to Juban and
Cowen (the “Sushi Yama meeting”).8 Although Cowen did not attend the Sushi Yama
meeting, he was informed by Juban of the meeting’s substance.9 Plaintiffs allege that
“[e]verything started” at the Sushi Yama meeting.10 Based on a series of alleged
misrepresentations by Napper at the Sushi Yama meeting, Juban and Cowen, both
domiciled in Louisiana, formed Georgia Mobile Dental, LLC11 to operate their mobile
dentistry business in Georgia and “invested substantially in the business.”12 Despite

4

Rec. Doc. 1-2.
Napper signed all contracts in his capacity as CEO of CSM and MHS. Rec. Doc 1-2, p. 14.
6
Rec. Doc. 6.
7
Other participants included Sally Daly, DDS, Louis Lefebvre, DDS, and Dave Grand. Rec. Doc. 1-2.
8
Rec. Doc. 6, p. 3.
9
Rec. Doc. 1-2. p. 12.
10
Rec. Doc. 6, p. 2.
11
A Louisiana limited liability company.
12
Id. at 3-4.
5

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representations by Napper that “he and his companies were experts in all aspects of the
mobile dentistry niche,”13 Georgia Mobile Dental, LLC was ultimately a failure, and
Plaintiffs suffered hundreds of thousands of dollars in losses.14
According to Plaintiffs, the Sushi Yama meeting lasted two hours,15 and was “set
up by Napper so that he could sell a business opportunity to Plaintiffs Juban and
Cowen.”16 Plaintiffs list a series of alleged misrepresentations by Defendants allegedly
made “with the intent to gain an unjust financial advantage over Plaintiffs” to induce
Plaintiffs to enter in to contracts and purchase a mobile dental unit for $400,000.”17 The
misrepresentations alleged include, inter alia: (1) that Defendants were familiar with the
dental reimbursement laws of Georgia; (2) that Defendants had expertise and know-how
to obtain payment for services rendered by Georgia Mobile Dental, LLC; and (3) that
Defendants “were willing to buy-back the mobile dental unit if Defendants did not fulfill
contractual duties.18 Plaintiffs allege that “[a]ll of these misrepresentations occurred in
Baton Rouge and/or stemmed from the Sushi Yama meeting.”19
Plaintiffs further allege contacts with Louisiana through communications
concerning business sent from Napper to Plaintiffs before and after Plaintiffs were

13

Rec. Doc. 1-2, p. 12.
Id. at 20
15
Rec. Doc. 6-1, p. 2.
16
Rec. Doc. 6, p.3.
17
Id.
18
Id.
19
Id. at 4
14

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operating Georgia Mobile Dental, LLC, while Plaintiffs were in Baton Rouge, Louisiana.20
Napper traveled to Baton Rouge, Louisiana, to meet Cowen at Juban’s office “to conduct
business related to the mobile dentistry contracts” in January 2017.21
Defendants assert the Sushi Yama meeting lasted 45 minutes, and they describe
the meeting as a discussion of “a potential business arrangement.”22 Defendants concede
that Napper traveled to Louisiana twice to discuss the “potential business
arrangements.”23 However, Defendants argue that the substantial acts giving rise to the
claim occurred in Tennessee.24 Defendants now move for the Court to dismiss Plaintiffs’
claims for lack of personal jurisdiction and improper venue, or, in the alternative, to
transfer this case to the Middle District of Tennessee.25
II.

LAW & ANALYSIS
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.26 When a district court rules on a motion to dismiss without an evidentiary

20

Rec. Doc. No. 6-2. p. 3.
Id.
22
Rec. Doc. No. 5-1, p. 2.
23
Id.
24
Id. at 17.
25
Rec. Doc. No. 5.
26
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).
21

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hearing, the plaintiff need only present a prima facie case of personal jurisdiction.27 At
this stage, uncontroverted allegations in the complaint must be taken as true, and conflicts
between the parties' affidavits must be resolved in the plaintiff’s favor.28
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.”29 “Once a plaintiff has established minimum
contacts, the burden shifts to the defendant to show that the assertion of jurisdiction would
be unfair.”30
“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.”31 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

27

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).
28
D.J. Inv., Inc. v. Metzeler Motorcycle Tire Agent Gregg, Inc., 754 F.2d 542, 546 (5th Cir.1985).
29
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).
30
Id. at 245 (quoting Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir.1999)).
31
Walk Haydel, 517 F.3d at 242.

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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.32
Where a defendant has “continuous and systematic general business contacts”
with the forum state, the court may exercise “general jurisdiction” over any action brought
against the defendant.33 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.”34
Plaintiffs do not appear to argue for the Court’s exercise of general jurisdiction;
rather they assert the Court’s exercise of specific jurisdiction. Because Plaintiffs have not
advanced an argument for the exercise of general jurisdiction, the Court’s inquiry will only
address specific jurisdiction.
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.”35 The Fifth Circuit follows a three-step analysis for this determination. First, a

32

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).
33
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984).
34
Id. at 414; Luv N' care, Ltd., v. Insta–Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006).
35
Luv N' care, 438 F.3d at 469 (quoting Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)).

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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.”36
This “minimum contacts” or ”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.37 A single, substantial act directed toward the forum can support specific
jurisdiction,38 but even multiple contacts, if “[r]andom, fortuitous, or attenuated ... are not
sufficient to establish jurisdiction.”39 What is significant is whether the contacts suggest
that the nonresident defendant purposefully availed himself of the privileges or benefits
of the laws of the forum state.40
Second, a court considers “whether the plaintiff's cause of action arises out of or
results from the defendant's forum-related contacts.”41 At this step, the proper focus in
the analysis is on the “relationship among the defendant, the forum, and the litigation.”42
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

36

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).
37
Luv N' care, 438 F.3d at 470.
38
See ASARCO, Inc. v. Glenara, Ltd., 912 F.2d 784, 786 (5th Cir.1990).
39
Moncrief Oil, 481 F.3d at 312 (citing Burger King, 471 U.S. at 479 (1985)).
40
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).
41
Nuovo Pignone, 310 F.3d at 378.
42
Stroman Realty, Inc. v. Wercinski, 513 F.3d 476, 487 (5th Cir. 2008).

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contacts.”43
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.”44 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.”45 “It is rare to say the assertion [of jurisdiction] is unfair after
minimum contacts have been shown.”46
C. Minimum Contacts
Personal jurisdiction may not be avoided merely because a defendant did not
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

43

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)).
44
Seiferth, 472 F.3d at 271 (citing Burger King, 471 U.S. at 382).
45
Luv N' care, 438 F.3d at 473; see also, Burger King Corp., 471 U.S. at 476–77 (listing 7 factors).
46
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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state in question, courts have consistently rejected the notion that an absence of physical
contacts can defeat personal jurisdiction there.47
Nonetheless, “merely contracting with a resident of the forum state does not
establish minimum contacts.”48 “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.”49
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.”50 Rather, when communications relating to conducting business are the
only contacts, courts generally require some type of “continuing obligations” between the
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
47

Burger King, 471 U.S. at 476–77.
Moncrief Oil, 481 F.3d at 311.
49
Burger King, 471 U.S. at 479 (internal citations omitted).
50
Wein Air, 195 F.3d at 213; Aviles v. Kunkle, 978 F.2d 201, 205 (5th Cir.1992).
48

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submit to the burdens of litigation in that forum as well.”51
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.”52 “When the actual content of communications with a forum gives rise to
intentional tort causes of action, this alone constitutes purposeful availment.”53
Plaintiffs heavily rely on this Court’s decision in J.A.H. Enterprises, Inc. v. BLH
Equipment, LLC54 to support their claim of sufficient minimum contacts to allow the
exercise of specific jurisdiction. In J.A.H., the dispute arose out of a transaction involving
a casino vessel. The Court found that J.A.H. had established a prima facie case of
minimum contacts by the defendant to support a finding of specific personal jurisdiction
based on allegations that the defendant “negotiated and was otherwise involved in the
purchase of the casino vessel in Louisiana or otherwise traveled to Louisiana to engage
in other business transaction with Henderson Auctions.” Similarly, in the present case,
Napper flew to Baton Rouge, Louisiana, to “solicit or market [to Plaintiff] a business
opportunity . . . .”55 And, according to Juban’s affidavit, Juban and Cowen, on behalf of

51

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)).
53
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).
54
2016 WL 9402565 (M.D. La., 2016).
55
Rec. Doc. No. 6-1.
52

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their company Georgia Mobile Dental, LLC,56 entered into two contracts with Defendants,
and “all of these contracts were executed in Baton Rouge, Louisiana.”57
The Court in J.A.H. further noted that the defendant “travelled to Louisiana on 1015 occasions to discuss business with Henderson Auctions and that he accompanied
Blake Everett to meet Mr. Rhodes in Louisiana in 2013 regarding the sale of the casino
vessel.”58 The current Defendants point out in their Reply59 that the two visits by Napper
to Louisiana are “far less than ten to fifteen.”60 However, the Court in J.A.H. is referring to
occasions where the defendant “traveled to Louisiana to engage in other business
transactions with Henderson Auctions.”61 In any event, it is clear that Napper visited
Louisiana twice concerning the business, and it was during these visits that Plaintiffs
allege Defendants committed torts of fraud in the inducement, unjust enrichment, and
negligent misrepresentation.62
Defendants rely on DNH, LLC v. In-N-out Burgers63 to support their argument that
Defendants lack minimum contacts with the forum to support specific personal jurisdiction
for this suit. In that case, DNH sued In-N-Out and sought a declaratory judgment that
DNH’s use of a similar trademark did not infringe on In-N-Out’s registered trademarks.

56

Also Plaintiff in this case.
Rec. Doc. No. 6-1, p. 3.
58
Id. at *5.
59
Rec. Doc. No. 12.
60
Id. at 3.
61
2016 WL 9402565 at 5 (M.D. La., 2016).
62
Rec. Doc. No. 6, p. 2.
63
381 F. Supp. 2d 559 (E.D. La. 2005).
57

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DNH sued in the Eastern District of Louisiana arguing the Court had personal jurisdiction
over In-N-Out, a California company, based on In-N-Out’s prior threats to DNH “in three
letters and various phone calls” and because In-N-Out “also negotiated the settlement
agreement with them.”64 The court found those contacts with Louisiana insufficient for the
exercise of specific personal jurisdiction because “there is nothing to indicate that the
defendants purposefully directed its activities at the state or purposefully availed itself of
the benefits and protections of that state.”65 Moreover, the court stated that “[p]rinciples
of fair play and substantial justice afford [a party] sufficient latitude to inform others of its
... rights without subjecting itself to jurisdiction in a foreign forum.”66
The Court finds Defendants’ reliance on DNH misplaced. In DNH, all contacts
alleged by the plaintiff were a result of the dispute in which they were currently engaged.
In the present case, all alleged contacts with Louisiana precipitated the dispute, rather
than resulted from the dispute. Defendants contacted and traveled to Louisiana to solicit
business from Plaintiffs, and according to Plaintiffs, made the misrepresentations that
induced Plaintiffs into commencing a Louisiana business. Under the facts as alleged, the
Defendants contacts in Louisiana were purposefully directed. In DNH, the dispute gave
rise to the contacts with the forum, while in the present case the contacts with the forum

64

DNH, L.L.C. v. In-N-Out Burgers, 381 F. Supp. 2d 559, 563 (E.D. La. 2005).
Id. at 564.
66
Id. (quoting Compana, LLC v. Emke, No. 3–03–CV–2372–M, 2004 WL 2058782, at *4 (N.D.Tex. Sept.15,
2004) (citing Red Wing Shoe Co., Inc. v. Hockerson–Halberstadt, Inc., 148 F.3d 1355, 1361
(Fed.Cir.1998)); see Silent Drive, Inc. v. Strong Indus., Inc., 326 F.3d 1194, 1202 (Fed.Cir.2003).
65

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gave rise to the dispute.
The decision in DNH is also unavailing to the Defendants herein because the DNH
Court cited Calder v. Jones,67 which states, “[u]nder the ‘effects’ test, minimum contacts
may exist when a nonresident defendant expressly aims intentionally tortious activity at
the forum state and knows that the brunt of the injury will be felt by a forum resident.”68
As Plaintiffs herein essentially make this same argument, DNH offers little support for
Defendants’ position.
Defendants also argue that the “only alleged fact that supports personal jurisdiction
in Louisiana is that Plaintiffs, despite never doing business in Louisiana, is a Louisiana
company.”69 Yet, Defendants ignore Napper’s two trips to Louisiana for soliciting the
Plaintiffs’ investment in the business at issue in this case. Defendants also assert that the
“[t]wo visits to Louisiana for less than an hour each does not establish that the CSM
purposely availed itself to the benefits and protections of the state of Louisiana. Napper,
personally, and MHS do not even have these contacts.”70 This argument is meritless
considering Defendants admit that Napper personally visited Plaintiffs in Louisiana on two
occasions to discuss the business at issue in this case.71
The facts alleged by Plaintiff, which must be accepted by the Court as true for

67

465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984),
DNH, L.L.C. v. In-N-Out Burgers, 381 F. Supp. 2d 559, 564 (E.D. La. 2005).
69
Rec. Doc. No. 5-1, p. 9.
70
Id.
71
“Napper, himself, visited Louisiana twice each time having a 45 minute dinner with the individual
Plaintiffs.” Rec. Doc. No. 5-1, p. 2.
68

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purposes of this motion, support a finding of minimum contacts to exercise specific
personal jurisdiction. As discussed above, Napper, on behalf of CSM and MHS,72
contacted Plaintiffs in Louisiana by emails, telephone calls, and text messages.73 Napper
also traveled to Baton Rouge, Louisiana to meet with Defendants to discuss the business
at issue in this case.
Finding sufficient minimum contacts with Louisiana to support the exercise of
specific jurisdiction, the Court must now determine “whether the plaintiff's cause of action
arises out of or results from the defendant's forum-related contacts.”74 The Fifth Circuit
holds that specific personal jurisdiction is only appropriate when the nonresident’s
contacts with Louisiana arise from, or are directly related to, the cause of action asserted
by the plaintiff.75
In Blackmon v. Bracken Constr. Co., Inc., a recent Middle District of Louisiana
case, this Court found specific jurisdiction was proper in a case where a defendant sent
letters to a plaintiff in Louisiana, and “the “actual content” of those letters forms the basis
of Plaintiffs' fraud claims against [the defendant].”76 In that case, the defendant made
alleged misrepresentations to plaintiff to settle an insurance dispute involving an
automobile collision between drivers domiciled in different states. The defendant sent “at

72

As the CEO for both companies, note 5, supra.
Rec. Doc. No. 6-1. Rec.
74
Nuovo Pignone, 310 F.3d at 378.
75
Lewis v. Fresne, 252 F.3d 352, 358 (5th Cir. 2001).
76
No. CV 18-00142-BAJ-RLB, 2018 WL 4100684, at *3 (M.D. La. 2018).
73

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least three settlement-related letters to Plaintiffs at a Louisiana address, and called
Plaintiffs’ Louisiana cell-phone number to discuss settlement.”77 Although the defendant
in Blackmon argued this Court lacked personal jurisdiction because it had never had a
physical presence in Louisiana, this Court found that, “[b]ecause the ‘actual content’ of
the three letters [Defendant] sent to [Plaintiffs’] Louisiana address could give rise to the
fraud-by-silence claim Plaintiffs have pleaded against [Defendant], [Defendant] has
minimum contacts with Louisiana.”78
Similarly, in the present case, Plaintiffs allege the “actual content” of the Sushi
Yama meeting, emails, telephone calls, and text messages from Napper “induced Juban
and Cowen to enter into a business deal”79 that is the subject of this case and “stems
from Napper’s (and Defendants’) contacts with Louisiana and conduct within and toward
Louisiana.”80 Defendants’ contacts with Louisiana and the Louisiana Plaintiffs give rise to
the claims asserted herein.
In Cooper v. Primary Care Sols., Inc., another recent Middle District of Louisiana
case, this Court found specific jurisdiction was proper based on allegations “that the
Individual Defendants ‘came to Baton Rouge Louisiana in March and April 2014 and
convinced [the plaintiff] ... through fraudulent misrepresentations ... to sign a sham

77

Id.
Id.
79
Rec. Doc. No. 6, p. 7.
80
Id. at 8.
78

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contract....’”81 In Cooper, the Court found the contacts were sufficient to find a “prima facie
showing of personal jurisdiction.”82
Additionally, The United States Court of Appeals for the Fifth Circuit has
consistently held that a court has specific jurisdiction over a nonresident defendant based
on communications with the forum when the “actual content” of that communication gives
rise to an intentional tort.83 Recently, in Trois v. Apple Tree Auction Ctr., Inc., the Fifth
Circuit affirmed the exercise of specific personal jurisdiction concerning a fraud claim
based on alleged misrepresentations made in a single phone call to the forum.84 In Wien
Air Alaska v. Brandt, the Fifth Circuit found personal jurisdiction proper over a foreign
attorney because the fraud claims arose from the communications between the foreign
attorney and the forum.85 Likewise, in Lewis v. Fresne, the Fifth Circuit similarly found
personal jurisdiction proper over a defendant concerning a fraud claim which arose from
defendant’s phone conference and documents sent to a forum-resident plaintiff.86
As set forth in detail above, Plaintiff has presented the Court with allegations,
accepted as true, which support a finding of minimum contacts with Louisiana such that
the Court’s exercise of specific personal jurisdiction over Defendants is proper.

81

Cooper v. Primary Care Sols., Inc., No. CV16259EWDCONSENT, 2017 WL 4544606, at *9 (M.D. La.
Oct. 11, 2017).
82
Id. at *10 (citing Johnston v. Multidata Systems Intern. Corp., 523 F.3d 602, 609 (5th Cir. 2008)).
83
See Trois v. Apple Tree Auction Ctr., Inc., 882 F.3d 485 (5th Cir. 2018); Wien Air Alaska, Inc. v. Brandt,
195 F.3d 208 (5th Cir. 1999); Lewis v. Fresne, 252 F.3d 352 (5th Cir. 2001).
84
Trois, 882 F.3d 485 (5th Cir. 2018).
85
Wien Air Alaska, Inc., 195 F.3d 208.
86
Lewis, 252 F.3d 353.

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D. Fairness
Plaintiffs have established that Defendants have minimum contacts with Louisiana.
Thus, “the burden shifts to [Defendants] to defeat jurisdiction by showing that [the Court’s]
exercise of jurisdiction would be unfair or unreasonable.”87 Defendants fail to argue any
reasons that jurisdiction would be unfair or unreasonable. Because Defendants have not
carried their burden, the Court need not consider further whether they have made a
compelling case against the exercise of personal jurisdiction.
E. Venue
Defendants also move to dismiss this action based on improper venue pursuant to
Federal Rules of Civil Procedure Rule 12(b)(3). “On a Rule 12(b)(3) motion to dismiss for
improper venue, the court must accept as true all allegations in the complaint and resolve
all conflicts in favor of the plaintiff.”88 If the Court finds venue proper, Defendants
alternatively request the Court to transfer this action to the Middle District of Tennessee
as a matter of convenience.
A district court has the authority to transfer a case in the interest of justice to
another district in which the action might have been brought, regardless of whether
venue exists in the original forum.89 If venue is proper in the original forum, the transfer
may be made pursuant to Section 1404(a), which provides that, “[f]or the convenience
87

Seiferth, 472 F.3d at 271 (citing Burger King, 471 U.S. at 382).
Swoboda v. Manders, 2014 WL 2515410, at *2 (M.D. La. June 4, 2014) (citing Braspetro Oil Servs. Co.
v. Modec (USA), Inc., 240 Fed.Appx. 612, 615 (5th Cir.2007)).
89
See 28 U.S.C. §§ 1404(a) and § 1406(a).
88

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of parties and witnesses, in the interest of justice, a district court may transfer any civil
action to any other district or division where it might have been brought.” If venue is
improper in the original forum, the transfer must be made under Section 1406(a), which
provides that “[t]he district court of a district in which is filed a case laying venue in the
wrong division or district shall dismiss, or if it be in the interest of justice, transfer such
case to any district or division in which it could have been brought.” If venue is proper,
a Court may still transfer a case to another district where it may have been brought for
the convenience of the parties and witnesses.90 The party moving for transfer must
show “good cause” for the transfer by showing that the transferee venue is clearly more
convenient that the venue chosen by plaintiff.91
Defendants’ argument that the Middle District of Louisiana is not a proper venue
is not persuasive. According to 28 U.S.C. § 1391(b)(2), proper venue for a civil action
is the judicial district in which a substantial part of the events or omissions giving rise to
the claim occurred. The allegations by Plaintiffs, which must be accepted as true,
demonstrate that a substantial part of the events giving rise to the claims of fraud in the
inducement, negligent misrepresentation, and breach of fiduciary duty occurred in the
Middle District of Louisiana. Through in-person conversations and communications in

90
91

28 U.S.C. Section 1404(a).
In re Volkswagen of Am., Inc. 545 F.3d 304, 315 (5th Cir. 2008).

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Louisiana, Defendants allegedly misrepresented a business opportunity and
fraudulently induced the Plaintiffs into contracts at issue in this case.
Defendants rely on Miller Masonry, Inc. v. EMB Quality Masonry, LLC92 to
support their argument that venue is not proper in Louisiana. Miller was a breach of
contract case arising out of a construction project. The contract was partially negotiated
in Louisiana before being performed out of state. The court found the negotiation in
Louisiana “insubstantial for venue purposes because they do not relate to the nature of
Plaintiff’s claim.”93 The plaintiff’s claim in Miller was only for breach of contract. Although
the present case has a contractual claim, the four other claims are grounded in
intentional tort relating to alleged misrepresentations made by Defendants. Thus, Miller
does not support Defendant’s venue argument.
In Southern Filter Media, LLC v. Halter, this Court found venue proper in a
dispute over an out-of-state contract where plaintiffs sustained damages in Louisiana.
The Court noted, “[i]n a contractual dispute, it is relevant that the defendant solicited the
plaintiff’s business.”94 In that case, the defendants contended that the only event that
took place in Louisiana was a meeting and negotiation. The Court, finding venue proper,
held that the defendants had “reached out into this state to contract with [plaintiff],” and

92

2014 WL 5340747 (Oct. 20, 2014).
Id. at *3.
94
2013 WL 3423269 at *6 (citing Joseph v. Emmons, 2005 WL 757358 (E.D. La. 2005)).
93

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the “[r]epresentations about [defendants] were made in this district or directed to this
district.”95
In Ross v. Digioia, the Eastern District of Louisiana found venue proper where
allegedly false statements giving rise to a claim of negligent misrepresentation and
detrimental reliance claims occurred in the Eastern District.96 The court also found that
venue was proper over the related contract claim. Although the contract in Ross was
allegedly breached in Florida, the parties negotiated the specifics of the agreement
during the defendant’s visit to the Eastern District of Louisiana.97
For the reasons set forth above, the Motion to Dismiss for Improper Venue is
denied.
F. Transfer of Venue
The Court will now consider whether this action should be transferred to another
judicial district under 28 U.S.C. § 1404(a). The underlying premise of Section 1404(a)
is that courts should prevent plaintiffs from abusing their privilege under Section 1391
by subjecting defendants to venues that are inconvenient under the terms of Section
1404(a).98
The Court turns to a consideration of whether transferring the case to the Middle
District of Tennessee serves the convenience of the parties and witnesses and is in the
95

Id. (citing Advocate Financial, LLC v. Parker Interests, LLC, 2008 WL 2773650 (M.D. La. 2008)).
2012 WL 72703 (E.D. La. 2012).
97
Id. at 4.
98
In re Volkswagen of America, Inc., 545 F.3d 304, 313 (5th Cir. 2008).
96

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interest of justice.99 The Fifth Circuit has held that: “Section 1404(a) venue transfers
may be granted ‘upon a lesser showing of inconvenience’ than forum non conveniens
dismissals,” and “the burden that a moving party must meet to justify a venue transfer
is less demanding than that a moving party must meet to warrant a forum non
conveniens dismissal.”100 Additionally, the moving party bears the burden of showing
“good cause,” which the Fifth Circuit explained is satisfied when “the movant
demonstrates that the transferee venue is clearly more convenient.”101
The Fifth Circuit has adopted the private and public interest factors for the
determination of whether a Section 1404(a) venue transfer is for the convenience of the
parties and witnesses and is in the interest of justice.102 The private interest factors are:
“(1) the relative ease of access to sources of proof; (2) the availability of compulsory
process to secure the attendance of witnesses; (3) the cost of attendance for willing
witnesses; and (4) all other practical problems that make trial of a case easy,
expeditious and inexpensive.”103 The public interest factors are: “(1) the administrative
difficulties flowing from court congestion; (2) the local interest in having localized

99

Id.; Entex Production, Inc. v. Mid Continent Cas. Co., No. 07-760-JJB-DLD, 2008 WL 191650 at *2 (M.D.
La. Jan. 22, 2008).
100
Digital–Vending Services, Intern., L.L.C. v. University of Phoenix, Inc., 2009 WL 3161361 (E.D.Tex.
2009), citing In re Volkswagen, 545 F.3d at 314 (citing Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct.
544, 99 L.Ed. 789 (1955)).
101
In re Volkswagen, 545 F.3d at 315.
102
Id.
103
In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (citing Piper Aircraft Co. v. Reyno, 454 U.S.
235, 241 n. 6, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)).

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interests decided at home; (3) the familiarity of the forum with the law that will govern
the case; and (4) the avoidance of unnecessary problems of conflict of laws [or in] the
application of foreign law.”104
Considering these factors, the Court finds the Defendants have failed to show
that the Middle District of Tennessee is a clearly more convenient forum than the Middle
District of Louisiana. Addressing factors (1) and (2), although Defendants argue that no
alleged witnesses reside in Louisiana,105 Plaintiffs assert that all witnesses of the Sushi
Yama meeting, except for Napper, reside in Louisiana,106 and Napper can be compelled
to appear at trial because he is a party.107 As set forth above, the Court has subpoena
power over the witnesses to the Sushi Yama meeting based on their residences. There
will inevitably be witnesses outside of the Court’s subpoena power; however, some
meeting witnesses may also be outside of the subpoena power of the Middle District of
Tennessee. Consequently, the Court finds this factor is neutral.
Consideration must also be given to factor (3), the cost of attendance of willing
witnesses. Plaintiffs and at least three alleged witnesses to the Sushi Yama meeting
live in the Middle District of Louisiana. To the extent Plaintiffs’ contract claim concerns
the performance of the parties, Defendants argue that the facts concerning the
performance by the Defendants occurred in Tennessee, and all records and documents
104

Id.
Rec. Doc. No. 5-1, p. 14.
106
Rec. Doc. No. 6, p. 10.
107
Id.
105

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relating thereto are in Tennessee. However, Defendants have not demonstrated how
requiring witnesses to travel to Tennessee is any more or less convenient than requiring
witnesses to travel to Louisiana. Plaintiffs have identified non-party witnesses to the
Sushi Yama meeting who will be outside of the subpoena power of the Middle District
of Tennessee. Further, neither party has argued for or against private interest factor (4)
- all other practical problems that make trial of a case easy – thus, this factor remains
neutral, and the private interest factors, in general, do not weigh for or against either
venue.
Concerning the public interest factors, Defendants correctly point out that the
contract at issue is governed by Tennessee law; however, there is no suggestion that
this Court cannot apply the law of Tennessee to this case. The remaining claims
asserted by Plaintiffs, including fraud in the inducement, unjust enrichment, negligent
misrepresentation,

and

breach

of

fiduciary

duty,

stem

from

the

alleged

misrepresentations allegedly intentionally made by Napper to Plaintiffs when Plaintiffs
resided in Louisiana, and Louisiana law governs these tort claims. Plaintiffs also point
out that numerous Louisiana residents have purchased mobile dental units from
Napper.108 As such, the Court finds that Louisiana has a strong interest in having these
claims litigated in this forum.

108

Plaintiffs’ affidavit lists at least 7 Louisiana residents who entered in to business with Napper. Rec. Doc.
No. 6-1, p. 3.

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Accordingly, the Court finds that the private and public interest factors do not
weigh in favor of transfer, and Defendants have failed to demonstrate that the transferee
forum is clearly more convenient. “Thus, when the transferee venue is not clearly more
convenient than the venue chosen by the plaintiff, the plaintiff's choice should be
respected.”109 Accordingly, the Alternative Motion to Transfer Venue shall be denied.
III.

CONCLUSION
For the reasons set forth above, the Motion to Dismiss for Lack of Personal

Jurisdiction and Improper Venue or, in the Alternative, to Transfer Venue to the Middle
District of Tennessee110 is DENIED.
IT IS ORDERED.
Baton Rouge, Louisiana, this 16th day of November, 2018.

S

________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

109
110

In re Volkswagen, 545 F.3d at 315.
Rec. Doc. No. 5.

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