Carmona v. Leo Ship Management

Filing 12

MEMORANDUM OPINION AND ORDER granting 3 MOTION to Dismiss. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
March 28, 2018

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JOSE CARMONA,

§
§
§
§
§
§
§
§
§

Plaintiff,

v.
LEO SHIP MANAGEMENT, INC.,
Defendant.

David J. Bradley, Clerk

CIVIL ACTION NO. H-17-3586

MEMORANDUM OPINION AND ORDER

Plaintiff, Jose Carmona, filed this action on April 10, 2017,
in the 151st Judicial District Court of Harris
against

defendant,

Leo

Ship

Management,

County,

Inc.

Texas,

( "LSM"

or

"Defendant"), asserting a claim for negligence under the Longshore
and Harbor Workers'

Compensation Act . 1

On November

22,

Defendant filed a Notice of Removal (Docket Entry No. 1).
before the court is Defendant Leo Ship Management,

2017,

Pending

Inc. 's Rule

12(b) (1) Motion to Dismiss for Lack of Personal Jurisdiction and
Memorandum in Support Thereof
(Docket

Entry No.

3) .

("Defendant's Motion to Dismiss")

On February 19,

2018,

Plaintiff

filed

Plaintiff Jose Carmona's Response in Opposition to Defendant Leo
Ship Management, Inc.'s Rule 12(b) (2) Motion to Dismiss for Lack of
Personal

1

Jurisdiction

("Plaintiff's

Response")

(Docket

Entry

Plaintiff' s Original Petition and Request for Disclosure
("Plaintiff's Original Petition"), Exhibit C to Notice of Removal,
Docket Entry No. 1-3.

No. 10).

For the reasons stated below, the court concludes that

the Motion to Dismiss should be granted.
I.

Background

Plaintiff was a stevedore working aboard the M/V KOMATSUSHIMA
STAR. 2

Defendant was the vessel manager for the M/V KOMATSUSHIMA

STAR and is a Philippine corporation with its principal place of
business in Manila,

Philippines. 3

Defendant managed and staffed

the vessel pursuant to a Ship Management Agreement with the vessel
owner, Lua Line S.A. 4

Plaintiff worked for John Tim Enterprises,

LLC but alleges that the crew of the vessel "were employed by the
Defendant" and "maintained active control over the vessel and the
work of the longshoremen, including Plaintiff. " 5

Plaintiff alleges

that he was working in the vessel's hold placing straps on bundles
of pipes for discharging activities when one of the bundles fell
and injured his ankle. 6
inspect

the

Plaintiff observed a vessel crewmember

cargo to be discharged and turn over the

hold to

2

Verification of Jose Carmona
("Carmona Verification"),
Exhibit B to Plaintiff's Response, Docket Entry No. 10-2, p. 2.
3

Unsworn Declaration of Felix Corteza Andrada Pursuant to 28
U.S.C. § 1746 ("Andrada Declaration"), Exhibit 1 to Defendant's
Motion to Dismiss, Docket Entry No. 3-1, p. 1.
4

See Ship Management Agreement,
Response, Docket Entry No. 10-3.
5

Exhibit

Plaintiff's Original Petition, Exhibit
Removal, Docket Entry No. 1-3, p. 3 ~ 6.
6

Id.

~

7.
-2-

C to
C

to

Plaintiff's
Notice

of

Plaintiff for discharging. 7

Plaintiff alleges that the bundle was

not properly stowed or bundled and that Defendant's negligence
injuries. 8

caused Plaintiff's

Defendant argues

that the court

lacks personal jurisdiction over it.
II.
A.

Motion to Dismiss for Lack of Personal Jurisdiction

Standard of Review

Dismissal for lack of personal jurisdiction is governed by
Federal Rule of Civil Procedure 12(b) (2).
moves

to

dismiss

for

lack

of

When a foreign defendant

personal

jurisdiction

under

Rule 12 (b) ( 2) , "the plaintiff 'bears the burden of establishing the
district

court's

jurisdiction

over

the

Quick

defendant.'"

Technologies, Inc. v. Sage Group PLC, 313 F.3d 338, 343 (5th Cir.
2002), cert. denied,
Development LLC,

124

s. Ct. 66 (2003)

190 F.3d 333, 335

(quoting Mink v. AAAA

(5th Cir. 1999)).

"When the

district court rules on a motion to dismiss for lack of personal
jurisdiction 'without an evidentiary hearing,

the plaintiff may

bear his burden by presenting a prima facie case that personal
jurisdiction is proper."'
644,648
making

(5th Cir.),

its

Id.

(quoting Wilson v. Belin, 20 F. 3d

cert. denied,

determination,

the

115 S. Ct. 322

district

7

Carmona Verification, Exhibit
Docket Entry No. 10-2, p. 2.
8

"In

court may consider the

B to

Plaintiff's

Plaintiff's Original Petition, Exhibit
Removal, Docket Entry No. 1-3, pp. 3-4 ~~ 7-10.
-3-

(1994)).

C

to

Response,
Notice

of

contents of the record before the court at the time of the motion,
including

'affidavits,

testimony,

or

any

discovery.'"

Id.

interrogatories,

combination
at

344

of

the

depositions,

recognized

(quoting Thompson v.

Corp., 755 F.2d 1162, 1165 (5th Cir. 1985)).

oral

methods

of

Chrysler Motors

The court must accept

as true the uncontroverted allegations in the plaintiff's complaint
and must resolve in favor of the plaintiff any factual conflicts.
Guidry v. United States Tobacco Co., Inc., 188 F.3d 619, 625 (5th
Cir.

1999).

However,

the

court

is

not

obligated

conclusory allegations, even if uncontroverted.

to

credit

Panda Brandywine

Corp. v. Potomac Electric Power Co., 253 F.3d 865, 869 (5th Cir.
2001). "Absent any dispute as to the relevant facts, the issue of
whether personal jurisdiction may be exercised over a nonresident
defendant is a question of law to be determined .
Court."

. by th[e]

Ruston Gas Turbines, Inc. v. Donaldson Co. , Inc. , 9 F. 3d

415, 418 (5th Cir. 1993).
B.

Applicable Law

A federal district court may exercise personal jurisdiction
over a nonresident defendant if "(1)
statute confers personal
(2)

the forum state's long-arm

jurisdiction over that defendant;

and

the exercise of personal jurisdiction comports with the Due

Process Clause of the Fourteenth Amendment."
587 F.3d 753,
(2010).

759

Since

(5th Cir.

the

Texas

2009),
long-arm
-4-

cert.

McFadin v. Gerber,

denied,

statute

131 S.

extends

as

Ct.

68

far

as

constitutional due process allows,
second step of the inquiry.

the court considers only the

Id.

Exercise of personal jurisdiction over a nonresident defendant
comports with federal due process guarantees when the nonresident
defendant has established minimum contacts with the forum state,
and the exercise of

jurisdiction "does not offend

notions of fair play and substantial justice.'"

'traditional

International Shoe

Co. v. State of Washington, Office of Unemployment Compensation and
Placement, 66 S. Ct. 154, 158 (1945)
S.

Ct.

339,

343

(1940)).

(quoting Milliken v. Meyer, 61

Once a plaintiff satisfies these two

requirements, a presumption arises that jurisdiction is reasonable,
and the burden of proof and persuasion shifts to the defendant
opposing

jurisdiction

to

present

"a

compelling

case

that

the

presence of some other considerations would render jurisdiction
unreasonable."
2185 (1985).

Burger King Corp. v. Rudzewicz, 105 S. Ct. 2174,

"The 'minimum contacts' inquiry is fact intensive and

no one element is decisive; rather the touchstone is whether the
defendant's conduct shows that it
haled into court.'"

'reasonably anticipates being

McFadin, 587 F.3d at 759.

"There are two types of 'minimum contacts':

those that give

rise to specific personal jurisdiction and those that give rise to
general personal jurisdiction."
(5th Cir. 2001).

Lewis v. Fresne, 252 F.3d 352, 358

Because the parties agree that the court does not

have general personal jurisdiction over Defendant,

-5-

the relevant

inquiry is whether the court can exercise specific jurisdiction
over Defendant. 9
A court may exercise specific jurisdiction when the alleged
injuries arise from or are directly related to the nonresident
defendant's

contacts

with

the

forum

state.

Gundle

Lining

Construction Corp. v. Adams County Asphalt, Inc., 85 F.3d 201, 205
(5th Cir. 1996)

(citing Helicopteros Nacionales de Colombia, S.A.

v. Hall, 104 S. Ct. 1868, 1872 n.8 (1984) and Quick Technologies,
313

F.3d at

344).

To determine whether specific

jurisdiction

exists, a court must "examine the relationship among the defendant,
the forum, and the litigation to determine whether maintaining the
suit offends
justice."

traditional

notions

of

fair play and

Gundle Lining, 85 F.3d at 205.

substantial

Even a single contact

can support specific jurisdiction if the defendant "'purposefully
avails itself of the privilege of conducting activities within the
forum State,
laws.'"

thus invoking the benefits and protections of its

Burger King,

'purposeful availment'

105 S.

Ct.

at 2183.

"The non-resident's

must be such that the defendant

'should

reasonably anticipate being haled into court' in the forum state."
Ruston Gas,

9 F.3d at 419 (citing World-Wide Volkswagen Corp. v.

Woodson, 100 S. Ct. 559, 567 (1980)).

9

See Plaintiff Jose Carmona's Objections and Responses to
Defendant Leo Ship Management, Inc.'s Jurisdictional Interrogatories, Requests for Production and Requests for Admission,
Exhibit 1 to Defendant Leo Ship Management, Inc.'s Reply Brief in
Support of Rule 12(b) (1) Motion to Dismiss for Lack of Personal
Jurisdiction, Docket Entry No. 11-1, p. 5 Q. 3, p. 6 Q. 3.
-6-

There

are

three

parts

to

a

purposeful

availment

inquiry.

First, only the defendant's contacts with the forum are relevant,
not the unilateral activity of another party or a third person.
Sangha v. Navig8 ShipManagement Private Limited, 882 F.3d 96, 103
(5th Cir.
( 2 014)

2018)

(citing Walden v.

Fiore,

134 S.

("We have consistently rejected attempts

defendant-focused

'minimum

contacts'

contacts between the plaintiff
State.") ) .

Second,

inquiry

Ct.

1115,

1122

to satisfy the

by

demonstrating

(or third parties)

and the forum

the contacts relied upon must be purposeful

rather than random, fortuitous, or attenuated.

Id.

134

seek some benefit,

at 1123) .

advantage,

Finally,

or

Burger King,

profit
105 S.

the defendant must

by
Ct.

availing
at 2183.

itself

of

the

(citing Walden,

jurisdiction.

A defendant may purposefully

avoid a particular forum by structuring its transactions in such a
way as to neither profit from the forum's laws nor subject itself
to jurisdiction there.
S. W. 3d 569,
2181-85).

575

Moki Mac River Expeditions v. Drugg,

(Tex.

2007)

Since specific

(citing Burger King,
jurisdiction is

plaintiff bringing multiple claims
forum

contacts

of

the

defendant

jurisdiction for each claim."
Inc., 472 F. 3d 266, 274

105 S.

221

Ct.

claim specific,

at

"[a)

that arise out of different
must

establish

specific

Seiferth v. Helicopteros Atuneros,

(5th Cir. 2006).

-7-

C.

Analysis

1.

The Parties' Arguments

Defendant argues that the court may not exercise personal
jurisdiction because:
1.

Defendant is not a resident of Texas;

2.

The causes of action alleged by Plaintiff neither
arise from, nor are they connected with, any
purposeful acts or transactions that Defendant
performed in Texas;

3.

Defendant has not purposefully availed itself of
the privilege of conducting activities within the
State of Texas, and, as a result, has not invoked
the benefits or protections of the laws of the
State of Texas;

4.

Defendant does not have the requisite minimum
contact with Texas such that it would have fair
warning that a particular activity might subject it
to jurisdiction in a court in this State; and

5.

The
exercise
of
personal
jurisdiction
over
Defendant would offend traditional notions of fair
play and substantial justice, in violation of the
United States Constitution. 10

Defendant
fortuitously,
manager of

argues

that

it

entered

the

forum

randomly,

and in a highly attenuated manner because,

the M/V KOMATSUSHIMA STAR,

it

did not

as the

control

the

movements and activities of the vessel and did not direct the
vessel to go to Texas. 11

Defendant cites Asarco, Inc. v. Glenara,

Ltd., 912 F.2d 784 (5th Cir. 1990), for the proposition that "the

10

Defendant's Motion to Dismiss, Docket Entry No. 3, pp. 3-4.

11

Id. at 5-6.
-8-

activities of a vessel cannot form the basis of jurisdiction over
her owner, operator, manager, or others who do not themselves have
contact with the forum state." 12

Plaintiff responds that the court

has specific jurisdiction because Defendant committed a tort in
Texas.

Plaintiff alleges that "Defendant breached its turnover

duty, active control duty, and duty to intervene while the vessel
was docked at Greens Port Terminal." 13

In support, Plaintiff cites

this

v.

court's

opinion

in

Mylonakis

M/T

GEORGIOS

M.,

909

F. Supp. 2d 691, 704 (S.D. Tex. 2012), which distinguished Asarco. 14
Plaintiff also argues that "[a]lthough there is no evidence that
the Defendant had a

hand in planning the

trip

to Greens

Port

Terminal, the Defendant did knowingly send its crew to Texas" 15 and
that Defendant's lack of control over the movement of the vessel
does not defeat personal jurisdiction. 16

Finally, Plaintiff argues

that exercising personal jurisdiction will not offend traditional
notions of fair play and substantial justice. 17
In Asarco

cargo was

loaded

in Australia and

lost

at

before the vessel ever reached its destination in Louisiana.

12Id. at 6.
13

Plaintiff's Response, Docket Entry No. 10, p. 5.

14

Id. at 6-7.

15Id. at 6 .
16Id. at 4-7.
17Id. at 4-10.
-9-

sea
912

F.2d at 785.

"Amongst the lost cargo was 10,278 metric tons of

elura lead concentrates, carried under a bill of lading held by and
endorsed to ASARCO, a New York corporation, and insured by Hansa
Marine Insurance, a Swedish corporation."

Id.

The vessel had been

time-chartered to a third party, which directed the vessel to carry
the cargo to Louisiana.
corporation,
Eastern")

Id.

The vessel's manager was a Hong Kong

Anglo-Eastern Management Services Limited
Id.

("Anglo-

The plaintiffs ASARCO and Hansa Marine Insurance

sued the owner and the manager of the vessel in federal court
seeking to recover damages for the lost cargo.

Id.

and

to

the

vessel's

owner

successfully

argued

Anglo-Eastern
the

Louisiana

district court that it lacked personal jurisdiction over them.

The

Fifth Circuit affirmed, observing the general rule that "[e]ven a
single,

substantial

act

directed toward

the

forum

can support

specific jurisdiction," but finding that the plaintiff had failed
to

show

that

either

the

vessel's

directed an act toward Louisiana.

owner

or

Anglo-Eastern

had

Id. at 786.

In Mylonakis the plaintiff, Ioannis Mylonakis, served as chief
engineer onboard the M/T GEORGI OS M.

The M/T GEORGI OS M.

was

"owned by Helford, a business entity organized under the laws of
Liberia that did not have a regular place of business in Texas" and
managed and operated by STYGA, a business entity organized under
the laws of Panama that did not have a regular place of business in
Texas.

Id.

at

700.

At

the

port

-10-

of

Texas

City,

Texas,

the

United States Coast Guard ("USCG")

initiated an investigation of

unlawful

GEORGIOS

discharge

United States

to

from
file

the

M/T

criminal

charges

M.

that

the

STYGA and

against

caused

the

plaintiff for the unlawful discharge of oily waste from the M/T
GEORGIOS M.

Id. at 701.

The USCG required the crew members of the

vessel, including plaintiff, to remain in the Southern District of
Texas until the criminal investigation concluded.

Id.

STYGA and

Helford entered into an agreement with the USCG pursuant to which
the United States agreed to release the M/T GEORGIOS M. in exchange
for

STYGA

lodging,

and

Helford' s

agreement

to

provide

care,

and transportation for those crew members.

salaries,
Id.

STYGA

pled guilty to an Information that charged it with violation of the
Act to Prevent Pollution from Ships ("APPS").
Mylonakis
others,

brought

suit

against

for violation of the APPS,

Helford

Id. at 702.
and

STYGA,

among

general maritime claims for

unseaworthiness, negligence, intentional misrepresentation, breach
of the duty to defend, maintenance and cure, double wages under 46
U.S.C.

§

10313,

and

pendent

state

law

claims

for

malicious

prosecution, breach of fiduciary duty, and gross negligence.
at 699.

Id.

Citing Asarco Helford and STYGA argued that the claims

against them should be dismissed for lack of personal jurisdiction
because they had no control over the vessel's ports of call.
at 708.

Id.

This court distinguished the case from Asarco reasoning,

in part, that

-11-

Here, unlike Asarco, plaintiff's claims against STYGA and
Helford are not all based on acts committed outside the
forum. Instead, Plaintiff alleges that the two corporate
defendants
were
responsible
for
the
MARPOL/APPS
violations found aboard the M/T GEORGIOS M. while the
vessel was physically present in Texas, and that these
defendants and/or their agents committed other acts in
Texas that harmed him.
If the nonresident corporate
defendants committed the liability-producing acts while
physically present in the forum state, such conduct will
support personal jurisdiction in lawsuits arising from
those acts.

Thus, if STYGA and Helford are responsible for the
allegedly tortious actions of the vessel's crew while in
Texas, they are subject to personal jurisdiction in
Texas.
Id. at 708-09.
The court extensively analyzed Helford and STYGA's contacts
with Texas.

For example, "STYGA and Helford's acknowledgment that

the vessel presented an improperly maintained Oil Record Book to
the USCG in Texas," and that six of the plaintiff's claims were
"based on acts and communications

that occurred in Texas as a

result of the USCG'S investigation and discovery of MARPOL/APPS
violations onboard the M/T GEORGIOS M."

Id. at 710 and 712.

The

court held that the defendants purposefully availed themselves "of
the privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws" by entering into
the Agreement on Security with the USCG and the United States that
included an obligation to provide the care, salaries, lodging, and
transportation for M/T GEORGIOS M. crew members who were retained

-12-

in this District.

Id. at 712

(citing Burger King, 105 S. Ct. at

2183) .
In Sangha, 882 F.3d at 98, Captain Sangha worked as a mooring
master for the defendant, Navig8.

Captain Sangha's vessel collided

with another ship and Navig8 declined to renew his employment.
at 98-99.

Captain Sangha obtained new employment as a mooring

master of the "Songa Pearl" with Marine Consulting LLC.
Months

Id.

later,

Navigs

learned

that

Captain

Sangha

Id. at 99.
would

be

maneuvering in the Gulf of Mexico in a ship-to-ship transfer of
fuel alongside his former vessel with Navig8.

Id.

Navig8's Safety

Manager sent an email to Captain Sangha's supervisor informing him
that NavigS would prefer not to have Captain Sangha in charge of
maneuvers

involving Captain Sangha's

former vessel because the

collision incident was still under legal proceedings.

Id.

Marine

Consulting terminated Captain Sangha's contract and Sangha sued
NavigS for various tort claims,
with contract.

Id.

including tortious interference

The district court dismissed Captain Sangha's

claims for lack of personal jurisdiction over Navig8.

Id.

The

Fifth Circuit agreed that Captain Sangha did not allege sufficient
contacts to show NavigS was subject to specific jurisdiction in
Texas.

Id. at 103.

The court reasoned:

The contacts Cpt. Sangha identifies to support specific
jurisdiction-email
communications
from
two
Navig8
representatives located outside the country to Cpt.
Sangha's then-supervisor in Alabama, an employment
contract between Cpt. Sangha and Marine Consultants
allegedly
confected
in
Houston,
that
the
email
communications were targeted at a contract formed in
-13-

Texas, and that the emails concerned work that was to be
performed in Texas-are legally insufficient to support a
finding of specific jurisdiction. NavigB's contacts with
the state have to be purposeful "and not merely
fortuitous."
Even
though
Navig8' s
email
communications happened to affect Cpt. Sangha while he
was at the Port of Houston, this single effect is not
enough to confer specific jurisdiction over Navig8.

The Supreme Court recently clarified the form that forum
contacts must take in intentional tort cases for the
effects to be applicable, reiterating that mere injury to
a forum resident is not a sufficient connection to the
forum. Walden, 134 S. Ct. at 1125. "Regardless of where
a plaintiff lives or works, an injury is jurisdictionally
relevant only insofar as it shows that the defendant has
formed a contact with the forum State." Id. The proper
question is not whether Cpt. Sangha experienced an injury
or effect in a particular location, but whether Navig8's
conduct connects it to the forum in a meaningful way.
Cpt. Sangha's presence in the Gulf of Mexico/Port of
Houston is largely a consequence of his relationship with
the forum, and not of any actions Naviga took to
establish contacts with the forum.
Accordingly, Cpt.
Sangha has failed to establish a prima facie case of
personal jurisdiction.
Id.

at

103-04.

indicates

that

The
Navig8

court

also

was

likely

explained
aware

that

that

the

"[t] he

record

ship-to-ship

transfer between its vessel and the Songa Pearl would take place in
the Gulf of Mexico right outside of Houston . . . . Even considering
this, however, the allegation that the 'effects' of Navig8's emails
were felt in Houston are nothing more than fortuitous."

Id. at 104

n.3 (citing Walden, 134 S. Ct. at 1125).
2.

Purposeful Availment Inquiry

Plaintiff has not established that Defendant's contacts with
Texas satisfy the three parts of purposeful availment under any of
-14-

Plaintiff's theories of tort liability-- breach of the "turnover
duty,"

the

"active control"

duty,

and the

"duty to intervene."

Plaintiff alleges that Defendant breached these duties when it
allowed Plaintiff to discharge the pipes. 18
First,

like Anglo Eastern in Asarco who had no control over

the lost cargo's destination, Defendant had no control over where
the cargo was to be discharged. 19

Nothing in the Ship Management

Agreement establishes that Defendant could control the vessel's
location. 20

Defendant cannot expect to be haled into court in each

State in which cargo is discharged under orders of a third party.
See Walden, 134 S. Ct. at 1122 (contacts between a third party and
the forum do not satisfy the minimum contacts inquiry) .

Plaintiff

argues that Defendant purposefully availed itself of the privilege
of

conducting

business

in

Texas

because

"[a]s

in

Mylonakis,

Plaintiff has alleged that the Defendant and its agents in this
case committed torts against Plaintiff while docked at Greens Port
Terminal in Harris County,
Mylonakis defendants'

Texas." 21

But Plaintiff ignores the

vast number of contacts with Texas under

which the tortious conduct arose that allowed the court to exercise

18

Id. at 5.

19

Andrada Declaration, Exhibit 1
Dismiss, Docket Entry No. 3-1, pp. 2-3
20

to Defendant's
20-21, 24.

See Ship Management Agreement, Exhibit
Response, Docket Entry No. 10-3, pp. 3-9.
21

C to

Plaintiff's Response, Docket Entry No. 10, p. 7.
-15-

Motion

to

~~

Plaintiff's

specific

jurisdiction

defendants

committed

over

the

crimes

defendants.

directed

at

In Mylonakis
Texas

and

the

entered

agreements with the USCG and the United States that had a direct
effect on this District.

The defendants deliberately directed

their activities at Texas with foreseeable consequences in Texas.
Second, Defendant's contact with Texas was merely fortuitous
or random rather than purposeful.
Burger King,

105 S.

Ct.

See Walden, 134 S. Ct. at 1123;

at 2183.

Plaintiff acknowledges that

Defendant did not have control over the vessel's location or ports
of call. 22

Instead, Plaintiff argues that "Defendant did knowingly

send its crew to Texas . . . . Defendant admitted it was aware prior
to the incident that the vessel would be travelling [sic] to Greens
Port Terminal in Harris County,

Texas,

and that cargo would be

discharged from the vessel while docked. " 23

However, in Sangha the

Fifth Circuit held that knowledge of where an injury might occur is
not sufficient to support specific personal jurisdiction over a
defendant.

882 F.3d at 104 n.3.

Finally, Plaintiff has not shown that Defendant had any other
significant contacts with Texas or sought any benefit, advantage,
or profit by availing itself of Texas. 24

Plaintiff has therefore

22

See id. at 6 ("there is no evidence that the Defendant had
a hand in planning the trip to Greens Port Terminal").
23

Id. (citing Defendant's Responses to Plaintiff's Jurisdictional Discovery Requests, Exhibit E to Plaintiff's Response,
Docket Entry No. 10-5, p. 7, Request for Admission Nos. 5-6).
24

LSM' s

The unchallenged Unsworn Declaration of Andrada describes
lack of connection with Texas at length.
See Andrada
(continued ... )
-16-

failed to establish that Defendant directed an act toward Texas or
otherwise

purposefully

conducting activities

availed

itself

in Texas.

of

See Asarco,

the

privilege

912

of

F.2d at 786.

Because neither the injury nor the alleged tort was a consequence
of any actions Defendant took to establish contacts with Texas, the
claim does not arise out of or relate to Defendant's contacts.
Helicopteros,

104

S.

Ct.

at

1872;

Sangha,

882

F.3d

at

See
104.

Therefore, Plaintiff has not met its burden of establishing a prima
facie case of personal jurisdiction.
3.

Whether Exercise of Personal Jurisdiction
Defendant is Fair and Reasonable

Because

the

court

concludes

that

Defendant

does

Over
not

the
have

sufficient contacts in Texas to support personal jurisdiction, the
court need not analyze whether exercise of personal jurisdiction
over Defendant is fair and reasonable.
Motion

to

Dismiss

for

Lack

of

Accordingly,

Personal

Defendant's

Jurisdiction

will

be

granted.
III.

Conclusions and Order

For the reasons explained above,

the court concludes that

Plaintiff has not carried his burden of establishing facts capable
of supporting the court's exercise of personal jurisdiction over

24

( • • • continued)
Declaration, Exhibit 1 to Defendant's Motion to Dismiss,
Entry No. 3-1, pp. 1-3, ~~ 4-17, 26.

-17-

Docket

Defendant

LSM

on

Plaintiff's

negligence

Defendant

Leo

Ship Management,

Inc.'s

claim.

Rule

Accordingly,

12 (b) (1)

Motion to

Dismiss for Lack of Personal Jurisdiction (Docket Entry No. 3) is
GRANTED, and this action will be dismissed with prejudice.
SIGNED at Houston, Texas, on this 28th day of March, 2018.

UNITED

-18-

LAKE
DISTRICT JUDGE