Cole v. Dragonfly Aviation, LLC et al
Filing
42
RULING granting 9 Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction and Rule 12(b)(3) Motion to Dismiss for Lack of Proper Venue and, Alternatively, Motion to Transfer Venue. Signed by Chief Judge Shelly D. Dick on 3/7/2019. (SGO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JACE TANNER COLE
CIVIL ACTION
VERSUS
18-367-SDD-EWD
DRAGONFLY AVIATION, LLC,
CATHY WALKER REED, and
KEVIN REED
RULING
This matter is before the Court on the Rule 12(b)(2) Motion to Dismiss for Lack of
Personal Jurisdiction and Rule 12(b)(3) Motion to Dismiss for Lack of Proper Venue and,
Alternatively, Motion to Transfer Venue1 by Defendants Dragonfly Aviation, LLC
(“Dragonfly”), Cathy Walker Reed (“Mrs. Reed”), and Kevin Reed (“Mr. Reed”) (or
collectively, “Defendants”). Plaintiff Jace Tanner Cole (“Cole”) filed an Opposition2 to this
motion to which Defendants filed a Reply.3 For the following reasons, the Court finds that
the Defendants’ motion to dismiss should be GRANTED.
I.
FACTUAL BACKGROUND
Cole was a helicopter pilot for Dragonfly from June 10, 2016 until April 24, 2017.4
This case arises from allegations that Cole’s former employers, Mr. and Mrs. Reed,
owners and managers of Dragonfly, defamed Cole by allegedly misrepresenting to the
Federal Aviation Administration (“FAA”) and operators of other aviation companies that
1
Rec. Doc. 9.
Rec. Doc. 17.
3
Rec. Doc. 21.
4
Id. at 2-3.
2
49910
Page 1 of 18
Cole had refused to submit to a drug test required by FAA regulations.5 Dragonfly is a
Texas limited liability company. Mr. and Mrs. Reed are Texas residents, and Cole is a
Louisiana resident.
Cole alleges that his relationship with Mr. and Mrs. Reed began to deteriorate in
November or December of 2016 following a disagreement concerning an employment
contract with Dragonfly.6 The relationship allegedly further deteriorated following a
dispute over Cole’s purchase of a windsock using Dragonfly’s funds.7 “That issue came
to a head,” and Cole quit his employment with Dragonfly on April 24, 2017.8 Cole alleges
that “Mr. Reed was angry” that he quit his employment with Dragonfly and told Cole that
he would need to submit to an FAA random drug test. Cole was allegedly not told where
to report for the drug test and attempted for several days to have Mr. Reed direct him to
a drug testing laboratory. After the alleged failure of Mr. Reed to give further instructions,
Cole obtained a drug test in Sulphur, Louisiana, which was negative.9
Cole alleges that, on May 10, 2017, “individually and on behalf of Dragonfly,” Mr.
Reed lied about Cole’s employment performance to the owner of a Texas aviation
company.10 The misrepresentations included an allegedly false report that Cole had
refused a drug test and had stolen several objects from Dragonfly.11
5
Rec. Doc. 7.
Id. at 2.
7
Id.
8
Id. at 2-3.
9
Id. at 9.
10
Id. at 3.
11
Id.
6
49910
Page 2 of 18
On May 23, 2017, Mrs. Reed, individually and on behalf of Dragonfly, allegedly
filed a false report with the FAA alleging that Cole had refused to submit to a random drug
test with no date specified. Mrs. Reed is also alleged to have sent a report to the FAA on
June 8, 2017, alleging that Cole had refused a drug test on April 7, 2017. During the
FAA’s investigation of Mrs. Reed’s report, Mr. Reed is alleged to have provided false
information to the FAA. Further, Cole claims Mr. Reed “perpetuated that lie” to a
“Louisiana businessman” and to an “aviation industry professional” who is highly
respected in Louisiana.12
Based on the facts alleged above, Cole brings the following eight causes of action
against the Defendants: (1) “Defamation by Libel” against Mrs. Reed and Dragonfly based
on the allegedly false FAA report;13 (2) “Defamation by Slander” against Mr. Reed and
Dragonfly based on his alleged false information provided to FAA investigators;14 (3)
“Defamation by Slander” against Mr. Reed and Dragonfly based on his alleged false
information provided to FAA investigators;15 (4) “Defamation by Libel” against Mr. Reed
for alleged misrepresentations to an unidentified “aviation employer in the State of
Louisiana;”16 (5) “Defamation by Slander/Libel” against Mr. Reed for allegations that Mr.
Reed misrepresented to “Cole’s potential employer” that Cole had refused a drug test and
stolen a “dump trailer;”17 (6) “Tortious Interference with Business” against Mr. Reed based
12
Rec. Doc. 7, p. 4.
Id. at 6.
14
Id. at 7.
15
Id. at 8-9 (Although Counts Two and Three appear the same, they are based on separate contacts with
the FAA).
16
Id. at 10.
17
Id. at 11.
13
49910
Page 3 of 18
on a “text message to a Louisiana businessman;”18 (7) “Intentional infliction of emotional
distress against Mr. Reed” based on Mr. Reed’s allegedly defamatory statements made
to the FAA and “numerous aviation employers both in the State of Louisiana and in the
State of Texas;”19 and (8) “Intentional infliction of emotional distress” against Mrs. Reed
for her alleged misrepresentations made to the FAA.20
Defendants now move pursuant to Rule 12(b)(2) to dismiss this suit on the basis
that this Court lacks personal jurisdiction over them or to dismiss this suit pursuant to Rule
12(b)(3) for improper venue, and in the alternative, to transfer venue to the Southern
District of Texas.
II.
LAW
A. 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.21 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.22 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.23
To aid resolution of the jurisdictional issue, a court “may receive interrogatories,
18
Id.
Id. at 13.
20
Id. at 14-15.
21
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).
22
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).
23
D.J. Inv., Inc. v. Metzeler Motorcycle Tire Agent Gregg, Inc., 754 F.2d 542, 546 (5th Cir.1985).
19
49910
Page 4 of 18
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.”24 “Once a plaintiff has established minimum
contacts, the burden shifts to the defendant to show that the assertion of jurisdiction would
be unfair.”25
“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.”26 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.27
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.28 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
24
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).
25
Id. at 245 (quoting Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir.1999)).
26
Walk Haydel, 517 F.3d at 242.
27
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).
28
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984).
49910
Page 5 of 18
forum.”29
B. General Jurisdiction
General jurisdiction is not in dispute. Cole has not argued that the Court has
general jurisdiction over Defendants; rather, he relies on the Court’s exercise of specific
jurisdiction over these Defendants.30 As Cole has not made prima facie showing that the
Court may exercise general jurisdiction over Defendants, the Court will turn to whether
Cole has established that the Court may exercise specific jurisdiction over Defendants.
C. 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.”31 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.”32
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.33 A single, substantial act directed toward the forum can support specific
29
Id. at 414; Luv N' care, Ltd., v. Insta–Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006).
Rec. Doc. 17, p. 5, n. 8.
31
Luv N' care, 438 F.3d at 469 (quoting Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)).
32
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).
33
Luv N' care, 438 F.3d at 470.
30
49910
Page 6 of 18
jurisdiction,34 but even multiple contacts, if “[r]andom, fortuitous, or attenuated ... are not
sufficient to establish jurisdiction.”35 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.36
Second, a court considers “whether the plaintiff's cause of action arises out of or
results from the defendant's forum-related contacts.”37 At this step, the proper focus in
the analysis is on the “relationship among the defendant, the forum, and the litigation.”38
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.”39
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.”40 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.”41 “It is rare to say the assertion [of jurisdiction] is unfair after
34
See ASARCO, Inc. v. Glenara, Ltd., 912 F.2d 784, 786 (5th Cir.1990).
Moncrief Oil, 481 F.3d at 312 (citing Burger King, 471 U.S. at 479 (1985)).
36
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).
37
Nuovo Pignone, 310 F.3d at 378.
38
Stroman Realty, Inc. v. Wercinski, 513 F.3d 476, 487 (5th Cir. 2008).
39
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)).
40
Seiferth, 472 F.3d at 271 (citing Burger King, 471 U.S. at 382).
41
Luv N' care, 438 F.3d at 473; see also, Burger King Corp., 471 U.S. at 476–77 (listing 7 factors).
35
49910
Page 7 of 18
minimum contacts have been shown.”42
D. 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
state in question, courts have consistently rejected the notion that an absence of physical
contacts can defeat personal jurisdiction there.43
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.”44 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
42
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)).
43
Burger King, 471 U.S. at 476–77.
44
Wein Air, 195 F.3d at 213; Aviles v. Kunkle, 978 F.2d 201, 205 (5th Cir.1992).
49910
Page 8 of 18
submit to the burdens of litigation in that forum as well.”45
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.”46 “When the actual content of communications with a forum gives rise to
intentional tort causes of action, this alone constitutes purposeful availment.”47
III.
ANALYSIS
Defendants argue that this Court cannot exercise specific personal jurisdiction over
them because Cole cannot satisfy the Fifth Circuit’s three-step specific jurisdiction
analysis with respect to any of Cole’s eight claims.48 First, Defendants assert that Cole
has not pleaded facts to support a finding that Defendants purposefully directed activities
toward Louisiana to satisfy minimum contacts.49 Second, Defendants argue that none of
the eight claims arise out of Defendants’ contacts with Louisiana.
Cole contends that the Court’s exercise of specific personal jurisdiction over
Defendants is proper because the defamation claims arise out of communications
purposefully directed toward Louisiana. Further, Cole argues that the Court can exercise
specific personal jurisdiction over the claims involving the FAA because the report was
“calculated to cause injury to Mr. Cole in Louisiana.”50
45
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)).
47
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).
48
Rec. Doc. 9-1, p. 11.
49
See 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).
50
Rec. Doc. 17, p. 10.
46
49910
Page 9 of 18
In this circuit, specific jurisdiction is a “claim-specific inquiry[.]”51 “A plaintiff bringing
multiple claims that arise out of different forum contacts of the defendant must establish
specific jurisdiction for each claim.”52 Thus, the Court will address the alleged contacts by
Defendants and the claims which arise out of those contacts.
A. Claims arising out of Defendants’ alleged contacts with the FAA
Counts One, Two, Three, and Eight are intentional tort claims which arise out of
Defendants’ FAA report and the subsequent FAA investigation.53 Based on alleged
misrepresentations made to the FAA by Mr. and Mrs. Reed, Cole raises claims of
defamation by libel against Mrs. Reed, individually, and on behalf of Dragonfly,54 two
claims of defamation by slander against Mr. Reed, individually, and on behalf of
Dragonfly,55 and intentional infliction of emotional distress against Mrs. Reed,
individually.56 Cole argues that this Court can exercise specific jurisdiction over
Defendants because the “report to the FAA was calculated to injure Mr. Cole’s career and
inflict emotional distress on Mr. Cole in Louisiana.”57
In support of his argument, Cole relies on Simon v. U.S., in which the Fifth Circuit
reversed the district court’s failure to exercise specific jurisdiction over an attorney based
on misleading statements made by the attorney to a Georgia judge which allegedly
caused the issuance of an improper subpoena ticket in Louisiana. The Louisiana plaintiff
51
See Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 274 (5th Cir. 2006).
McFadin v. Gerber, 587 F.3d 753 (5th Cir. 2009) (quoting Seiferth v. Helicopteros Atuneros, Inc., 472
F.3d 266 (5th Cir.2006)).
53
Rec. Doc. 7.
54
Count One of the Complaint.
55
Counts Two and Three of the Complaint.
56
Count Eight of the Complaint.
57
Rec. Doc. 17, pp. 8, 10.
52
49910
Page 10 of 18
failed to respond to the subpoena, and a bench warrant was issued against him. The
court found that “the service in Louisiana of the subpoena ticket, improperly issued at the
direction of [the defendant], was a cause-in-fact, or substantial factor, in the tort by [the
defendant] alleged as a cause of action in [the plaintiff’s] complaint.”58 The court further
found that “the conduct in Louisiana for which [the defendant] was responsible was a
substantial causal factor in producing the tortious injury alleged.”59 In the present case,
however, Defendants are not alleged to have directed any conduct within or toward
Louisiana.
Cole also relies on Brown v. Flowers60 to support his argument that specific
jurisdiction exists over Mrs. Reed as a result of her allegedly defamatory report made to
the FAA in Washington, D.C. In Brown, the Fifth Circuit reversed the district court and
found that personal jurisdiction existed in Mississippi over three nonresident defendants
as result of a single phone call by a defendant to a third party in Mississippi.61 Again, in
the present case, there are no allegations that Defendants directed any conduct toward
the state of Louisiana.
The Supreme Court has recently reiterated that the jurisdictional inquiry is focused
on “the defendant’s contacts with the forum state itself, not the defendant’s contacts with
persons who reside there.”62 “[T]he proper question is not where the plaintiff experienced
58
Simon v. United States, 644 F.2d 490, 498 (5th Cir. 1981).
Id. at 499.
60
Brown v. Flowers Industries, Inc., 688 F.2d 328 (5th Cir. 1982).
61
688 F.2d at 332 (5th Cir. 1982).
62
Walden v. Fiore, 571 U.S. 277, 283, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014).
59
49910
Page 11 of 18
a particular injury or effect but whether the defendant’s conduct connects him to the forum
in a meaningful way.”63
Although Cole argues that Defendants’ conduct was “calculated to cause injury” in
Louisiana, the Fifth Circuit has cautioned that “[f]oreseeable injury alone is not sufficient
to confer specific jurisdiction, absent the direction of specific acts toward the forum.”64
Here, Defendants, in Texas, are alleged to have made misrepresentations to the FAA in
Washington, D.C. For these counts, there are no allegations that Defendants directed any
conduct toward Louisiana. Because there are no alleged minimum contacts by any
Defendant for Counts One, Two, Three, and Eight arising out of Defendants’ alleged
contacts with the FAA, the Court lacks specific personal jurisdiction over Defendants for
those counts.
B. Claims arising out of Mr. Reed’s alleged contacts with a Louisiana
businessman
Counts Four, Six, and Seven will be analyzed together as they are intentional tort
claims arising out of the same alleged contact between Mr. Reed and a Louisiana
businessman.65 Cole alleges that Mr. Reed communicated to a “Louisiana helicopter
operator and businessman” that Cole had failed a drug test.66 Cole’s Opposition identifies
the Louisiana businessman as “Mr. Mike Satterfield.”67 Cole attaches a screenshot of a
63
Id. at 1125.
Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 212 (5th Cir. 1999).
65
Rec. Doc. 7, pp. 10, 12.
66
Rec. Doc. 7, p. 10.
67
Rec. Doc. 17, p. 11.
64
49910
Page 12 of 18
purported text message conversation between Mr. Reed and Mike Satterfield,68 and Mr.
Reed admits to a conversation with Mr. Satterfield in his affidavit.69
Defendants argue that the alleged communication from between Mr. Reed and a
Louisiana businessman does not confer personal jurisdiction over Mr. Reed for the
intentional tort claims. Defendants rely on Sangha v. Navig8 ShipManagement Private
Ltd.70 to support their argument. In Sangha, the plaintiff was a captain for Navig8 when
the vessel he captained was involved in a collision. Navig8 declined to renew the plaintiff’s
employment, and the plaintiff obtained new employment with another company based in
Alabama.71 The plaintiff’s new employer contracted to perform work with the plaintiff’s
previous employer, Navig8. By email, Navig8 informed the plaintiff’s current employer in
Alabama of the collision, and the plaintiff’s contract with his current employer was
terminated. The plaintiff sued Navig8 under various tort theories.72 The district court
dismissed the claims for lack of personal jurisdiction, and the Fifth Circuit agreed that the
plaintiff did not allege sufficient contacts to subject Navig8 to personal jurisdiction in
Texas.73 The court explained that “Navig8’s contacts with the state have to be purposeful
and not merely fortuitous . . . Even though Navig8’s email communications happened to
affect [the plaintiff] while he was at the Port of Houston, this single effect is not enough to
confer specific jurisdiction over Navig8.”74 In that case, there were no alleged purposeful
68
Rec. Doc. 17-3, p. 3; Screenshot of text message conversation.
Rec. Doc. 9-3, p. 2.
70
882 F. 3d 96 (5th Cir. 2018).
71
Id. at 98-99.
72
Id. at 99.
73
Id. at 103.
74
Id.
69
49910
Page 13 of 18
contacts with the forum state, Texas. Here, it is alleged that Mr. Reed sent defamatory
text messages to a Louisiana resident.
In Brown, discussed above, the Fifth Circuit held that personal jurisdiction in
Mississippi was proper over a non-resident who made a phone call to Mississippi
defaming a Mississippi resident.75 However, the Fifth Circuit emphasized that the
defendant initiated the defamatory phone call.76 Here, the record demonstrates that the
alleged text message conversation between Mr. Reed and the Louisiana resident was not
initiated by Mr. Reed.77
In Delta Brands Inc. v. Danieli Corp., the Fifth Circuit found the initiation of contact
significant in holding personal jurisdiction not valid.78 There, the court explained that the
plaintiff had not alleged that the defendant’s misrepresentations “arose out of contacts
initiated by [the defendant], rather than contacts initiated by [the plaintiff].”79 Here,
although the contact was initiated by a third person, Cole has failed to allege that the
contacts with Louisiana were initiated by Mr. Reed. In fact, Cole’s own supporting
documents demonstrate the opposite.80 In Wilson v. Belin, the Fifth Circuit held that
personal jurisdiction in a defamation case could not rest on a nonresident defendant’s
response to one uninitiated, unsolicited phone call.81 Likewise, the Court here finds that
75
688 F.2d 328 (5th Cir. 1982).
Id. at 334 & n. 15.
77
Rec. Doc. 17-3, p. 3; Rec. Doc. 9-3, p. 3.
78
99 F. App’x 1, 8 (5th Cir. 2004).
79
Id.
80
Rec. Doc. 17-3, p. 3.
81
20 F. 3d 644 (5th Cir. 1994).
76
49910
Page 14 of 18
specific personal jurisdiction cannot rest on Mr. Reed’s reply to an unsolicited text
message from a third party.
Cole relies on Trois v. Apple Tree Auction Center, Inc.,82 to support his argument
that a court can exercise specific personal jurisdiction over a party who responds to an
unsolicited communication. In Trois, a recent Fifth Circuit case, a collector in Texas made
an agreement through several conference calls to sell some of his collectibles in an
auction house in Ohio.83 The collector alleged that the president of the auction house
made misrepresentations during the uninitiated conference calls and sued the president
in Texas for breach of contract and fraud.84
The Fifth Circuit rejected specific jurisdiction for breach of contract but found
purposeful availment for the intentional tort of fraud.85 Although the court cited several
cases which permitted the exercise of specific personal jurisdiction over an intentional
tortfeasor who places a call to a forum and makes false statements over the phone to a
forum resident,86 the Fifth Circuit noted that, “in Wilson v. Belin, we held that personal
jurisdiction in a defamation case could not rest on a nonresident defendant’s tortious
response to one uninitiated, unsolicited phone call.”87 The court found that the facts of
82
882 F. 3d 485 (5th Cir. 2018).
Id. at 488.
84
Id.
85
Id. at 489.
86
Id. at 491 (See Brown, 688 F.2d 328, 332, 334 (5th Cir. 1982) (holding one defamatory phone call initiated
by defendant sufficient to established personal jurisdiction); Moncrief Oil Int’l Inc. v. OAO Gazprom, 481 F.
3d 309, 314 (5th Cir. 2007) ( “When a nonresident defendant commits a tort within the state … that tortious
conduct amounts to sufficient minimum contacts … to exercise personal adjudicative jurisdiction … ); Wien
Air Alaska, Inc. 195 F. 3d 208, 213 (5th Cir. 1999)(‘When the actual content of communications with a forum
gives rise to intentional tort causes of action, this alone constitutes purposeful availment.”)).
87
Id.
83
49910
Page 15 of 18
Trois fell “within the fuzzy boundaries of the middle of the spectrum.”88 The court
explained that the defendant in Trois “was not a passive participant on the call. Instead,
he was the key negotiating party who made representations regarding his business in a
call to Texas.”89 Here, the Court finds that the allegations fall toward the Wilson end of
the spectrum because Mr. Reed does not appear to have purposefully availed himself of
the privileges of Louisiana by responding to an unsolicited inquiry concerning Cole.
In Wilson, the court found that it lacked specific personal jurisdiction over the
defendants because their alleged defamatory comments were merely in response to an
unsolicited phone call made from within the forum.90 There, Wilson claimed to use photo
enhancement technology to glean more information concerning the John F. Kennedy
assassination and presented his alleged findings in Dallas. A Dallas reporter called two
non-resident officials involved in the official investigation who made statements
discrediting Wilson’s methods. Wilson sued the officials for their allegedly defamatory
statements.91 The court found that it lacked specific personal jurisdiction because “the
defendants did not execute a prearranged plan by initiating a communication to Texas
aimed at a Texas resident.”92 Similarly, Mr. Reed’s contact with a Louisiana resident is
not alleged to be part of a prearranged plan or initiated by Mr. Reed. Mr. Reed simply
responded to an inquiry from a Louisiana resident concerning a former employee.93
88
Id.
Id.
90
Wilson, 20 F. 3d at 649 (5th Cir. 1994).
91
Id.
92
Id.
93
Rec. Doc. 17, p. 13 (“While it is true that Mr. Reed responded to an inquiry from Mr. Satterfield regarding
Mr. Cole’s employment with Dragonfly, Mr. Reed was not a passive participant in the communication.”).
89
49910
Page 16 of 18
The Court finds the facts of Wilson most analogous to the present case. Further,
although not alleged in the Complaint, Cole’s Opposition states that Mr. Reed sent the
text messages to “Mr. Satterfield, who resides and whose principal place of business is
in Franklin, Louisiana[.]”94 Franklin is in St. Mary Parish, Louisiana, which is in the
Western District of Louisiana. For the reasons above, the Court lacks personal jurisdiction
over Mr. Reed for the allegations contained in Counts Four, Six and Seven.
C. Count Five arising out of Mr. Reed’s alleged contact with a Texas resident
Count Five arises from Mr. Reed’s alleged statements to Cole’s potential
employer.95 In the body of the Complaint, it appears that the “potential employer” is “the
owner of an aviation company in Texas.”96 Mr. Reed is alleged to have told the potential
employer that Cole refused a drug test and stole various equipment from Mr. Reed’s
airport hangar. There are no alleged contacts or communications within or directed toward
Louisiana in Count Five. As discussed at length above, and as Fifth Circuit precedent has
made clear, the mere fact that Cole resides in Louisiana is insufficient to confer personal
jurisdiction over Mr. Reed for this claim.97 Therefore, the Court lacks personal jurisdiction
over Mr. Reed for communications directed from one Texas resident to another.
D. Claims arising out of Dragonfly’s alleged contacts with the forum
Cole “does not argue that this Court exercises general jurisdiction over
Defendants.”98 Because the Court found no basis to exercise specific jurisdiction over Mr.
94
Rec. Doc. 17, p. 12.
Rec. Doc. 7, p. 12.
96
Id. at 3.
97
Walden, 134 S.Ct. at 1125 (2014).
98
Rec. Doc. 17, p.5, n. 8.
95
49910
Page 17 of 18
and Mrs. Reed, and a “business entity can act only through its officers, employees, and
other agents,”99 the Court also declines to exercise specific personal jurisdiction over
Dragonfly. Cole has not alleged any acts of other officers or employees, other than Mr.
and Mrs. Reed, that give rise to any of the claims contained in the Complaint.100 Thus,
Cole has not pled a prima facie case for asserting personal jurisdiction over Dragonfly.
Because the Court finds that neither specific nor personal jurisdiction exists over any
Defendant for any claim, the issues regarding venue need not be considered.
IV.
CONCLUSION
For the reasons set forth above, Defendants’ Rule 12(b)(2) Motion to Dismiss for
Lack of Personal Jurisdiction and Rule 12(b)(3) Motion to Dismiss for Lack of Proper
Venue and, Alternatively, Motion to Transfer Venue101 is GRANTED on the Rule 12(b)(2)
motion for lack of personal jurisdiction.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on March 7, 2019.
S
____________________________________
SHELLY D. DICK, CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA
99
Am. Realty Tr. Inc. v. Matisse Capital Partners LLC, 91 F. App’x 904, 911 (5th Cir. 2003).
Rec. Doc. 7.
101
Rec. Doc. 9.
100
49910
Page 18 of 18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?