Gray v. Venable's Construction, Inc.

Filing 16

Memorandum Opinion and Order GRANTING 10 MOTION to Dismiss for Lack of Jurisdiction (Personal). A separate judgment will be entered, as set out herein. Signed by District Judge Tom S. Lee on 7/1/13 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
BRANDON E. GRAY

PLAINTIFF

V.

CIVIL ACTION NO. 3:12CV644TSL-JMR

VENABLE’S CONSTRUCTION, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendant
Venable’s Construction Company (Venable’s) to dismiss for lack of
subject matter jurisdiction pursuant to Rule 12(b)(2) of the
Federal Rules of Civil Procedure.

Plaintiff Brandon E. Gray has

not responded to the motion and the time for doing so has since
expired.

Having reviewed the memorandum and record in this case,

the court concludes that defendant’s motion is well taken and
should be granted.
Plaintiff, alleged to be a Mississippi resident, filed this
suit against Venable’s, alleged to be a Texas corporation, seeking
to recover for an alleged violation of Title VII as well as for
alleged violations of state law.

By his motion, defendant

contends that dismissal is required inasmuch as plaintiff cannot
sustain his burden to demonstrate that the court has personal
jurisdiction over it.

The court agrees.

It is well established that this court, exercising diversity
subject matter jurisdiction, may exercise personal jurisdiction
over a nonresident only to the extent allowed by a state court
under applicable state law.

Allred v. Moore & Peterson, 117 F.3d

278, 281 (5th Cir. 1997), cert. denied, 522 U.S. 1048, 118 S. Ct.
691, 139 L. Ed. 2d 637 (1998).

“A state court or a federal court

sitting in diversity may assert jurisdiction if: (1) the state's
long-arm statute applies, as interpreted by the state's courts;
and (2) if due process is satisfied under the fourteenth amendment
to the United States Constitution.”

Id. (quoting Cycles, Ltd. v.

W.J. Digby, Inc., 889 F.2d 612, 616 (5th Cir. 1989)).
plaintiff’s burden to establish jurisdiction.

It is the

Guidry v. U.S.

Tobacco Co., 188 F.3d 619, 625 (5th Cir. 1999).
Mississippi's long-arm statute provides:
Any nonresident person, firm, general or limited
partnership, or any foreign or other corporation not
qualified under the Constitution and laws of this state
as to doing business herein, who shall make a contract
with a resident of this state to be performed in whole
or in part by any party in this state, or who shall
commit a tort in whole or in part in this state against
a resident or nonresident of this state, or who shall do
any business or perform any character of work or service
in this state, shall by such act or acts be deemed to be
doing business in Mississippi and shall thereby be
subjected to the jurisdiction of the courts of this
state.
Miss. Code Ann. § 13-3-57.
Further, the due process clause “requires satisfaction of a
two-prong test in order for a federal court to properly exercise
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jurisdiction: (1) the nonresident must have minimum contacts with
the forum state, and (2) subjecting the nonresident to
jurisdiction must be consistent with ‘traditional notions of fair
play and substantial justice.’”

Freudensprung v. Offshore

Technical Servs., Inc., 379 F.3d 327, 343 (5th Cir. 2004) (citing
Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784 (5th Cir. 1990), and
International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154,
90 L. Ed. 95 (1945)).
Where, as here, the court rules on a motion to dismiss for
lack of personal jurisdiction without an evidentiary hearing, the
plaintiff is only required to make a prima facie case that
jurisdiction is proper.

Paz v. Brush Engineered Materials, Inc.,

445 F.3d 809, 812 (5th Cir. 2006).

To determine whether a prima

facie case for jurisdiction has been made, “uncontroverted
allegations in the plaintiff's complaint must be taken as true,”
Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990) (citations
omitted).

This being said, the court is not limited to

consideration of only the assertions in the plaintiff's complaint;
rather, it may also “consider the contents of the record at the
time of the motion, including affidavits ...,' ” Paz, 445 F.3d at
812 (quoting Quick Technologies, Inc. v. Sage Group, PLC, 313 F.
3d 338, 343 (5th Cir. 2002)).
Plaintiff’s complaint is devoid of any allegations of any
activity which allegedly occurred in Mississippi so as to satisfy
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the long-arm statute.

Furthermore, in support of its motion,

Venable’s points to the affidavit of Doug Ellis, Venable’s Human
Resources Manager/Office Manager, wherein he states that
Venable’s: (1) is a pipeline construction company organized under
the laws of another state and with its principal place of business
in Dumas, Texas; (2) does not maintain a registered agent or
officer for service of process; (3) does not maintain any offices,
post office boxes, places of business, or telephone listings in
Mississippi; (4) has no real estate, bank accounts or other
property interest in Mississippi; (5) is not registered to do
business in Mississippi and (6) does not employ anyone in
Mississippi.

Based on the complaint and record evidence, the

court concludes that plaintiff has failed to demonstrate a prima
facie case of jurisdiction, defendant’s motion will be granted.
Accordingly, it is is ordered that defendant’s motion to
dismiss is granted.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 1st day of July, 2013.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

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