From Russia Without Love

russia_008Patterson sued Aker Subsea, in the Eastern District of Louisiana, for injuries he suffered while working on a boat off the coast of Russia. He asserted general personal jurisdiction under Fed. R. Civ. P. 4(k)(2) (which measures contacts in federal question cases with reference to the entire U.S., not just a single state), based on several secondment agreements by which Aker assigned its employees to an affiliate in Houston. Relying principally on Bowles v. Ranger Land Systems, 527 F. App’x 319 (5th Cir. 2013), the Fifth Circuit affirmed Aker’s dismissal, noting: “This court has declined to exercise general personal jurisdiction over a corporation where its most significant and continuous contact with the forum was having employees located there.” Patterson v. Aker Solutions Inc., No. 15-30690 (June 13, 2016).

Forum selection clause doesn’t necessarily confer personal jurisdiction

long_armHazim, a resident of Kansas, sued S&D Ltd., a publisher based in the UK, about its handling of Hazim’s book. Their contract had Texas choice-of-law and forum-selection provisions. Finding that the specific terms of the forum selection provision were not dispositive, the Fifth Circuit held that under Int’l Energy Ventures Management LLC v. United Energy Group, 2016 WL 1274030 (5th Cir. March 31, 2016), Hazim did not establish personal jurisdiction: “[T]he contract was between a Kansas resident and a United Kingdom entity and contemplated performance in the United Kingdom and Kansas. Even accepting that the contract contained the Texas choice-of-law and forum selection provision (as the IVEM-UEG contract did) . . . the contract on which Hazim is suing is not sufficiently related to Texas[.]” Hazim v. Schile & Denver Book Publishers, No. 15-20586 (May 5, 2016, unpublished).

Org Chart ≠ Personal jurisdiction

FPMC_30Judgment creditors garnished two oil tankers (including the M/V FMPC 30, right); the garnishees appealed as to the connection between them and the judgment debtors.  After reviewing the distinction between “alter ego” theories at the jurisdictional and merits stages, the Fifth Circuit reversed.  Finding that “[t]he [district court relied almost exclusively on two ‘organizational charts’ submitted by Plaintiffs (taken from Garnishees’ website),” the Court found that the charts “do not actually depict corporate structure” or ” show the functional relationship among the entities.”   Accordingly, the case for “jurisdictional veil piercing” was not established and the garnishment proceeding was dismissed.  Licea v. Curacao Drydock Co., No. 14-20619 (Nov. 23, 2015).

Press on –

pressEric Eddy alleged injury from a printing press.  The Fifth Circuit affirmed for lack of personal jurisdiction in Texas, holding:

1.  “Once the press was installed in Mississippi, it exited the stream of commerce because the Mississippi buyer was a consumer of the product, not a distributor or retailer.”  After that point, the movement of the press “was the result of ‘fortuitous’ and ‘attenuated’ acts of third parties[.]”  (The last sentence echoes the Supreme Court’s recent emphasis of this general concept in  Walden v. Fiore, 134 S. Ct. 1115 (2014)).

2.  While spare parts for the press were shipped by the defendant to Texas, no evidence showed that those parts contributed to the plaintiff’s injury, and the defendant “introduced uncontroverted evidence establishing that the drive shaft Eddy alleged caused his injury was not, and could not have been, the same shaft that was shipped with the spare parts.”

Eddy v. The Printers House (P) Limited, No. 15-10370 (Oct. 2, 2015, unpublished).

In the beginning was International Shoe —

genesisFirst Metropolitan Church sued Genesis Group, a company that helps churches obtain mortgage refinancing.  The Fifth Circuit affirmed dismissal for lack of personal jurisdiction in a short opinion, echoing its recognition of recent Supreme Court opinions in Monkton Ins. Servs. v. Ritter, 768 F.3d 429 (5th Cir. 2014).  An interactive website, even one that lists Texas business references, does not create general jurisdiction, and contracting with a Texas resident does not create jurisdiction if it does not “contemplate a long-term relationship with . . . continuing obligations and wide-reaching contacts.”  First Metropolitan Church of Houston v. Genesis Group, No. 15-20186 (Sept. 17, 2015, unpublished)

How not to prove agency

agent-matrixIn resolving a personal jurisdiction issue that turned on a party’s agency, the Fifth Circuit observed:

  • While a statement by a purported agent may not be hearsay, it is not admissible to establish “the existence or scope” of agency; and
  • Correspondence that was not specifically directed to the plaintiffs does not establish agency by estoppel.

Sealed Appellant v. Sealed Appellee, No. 14-20204 (Aug. 17, 2015, unpublished).


Personal jurisdiction over Hong Kong business – UPDATED

HongKongFlagImage1A company sued a Hong Kong business in Texas for unpaid consulting fees.  The Fifth Circuit reversed the dismissal of the business for lack of personal jurisdiction, finding that “the nature of the relationship” between it and the plaintiff, as well as both parties’ “joint connection” to a transaction involving BP’s Houston office, made it “foreseeable that the hub of [plaintiff’s] consulting activity would be in Texas.”  It also found no “unique” burden on the business of having to litigate in the U.S.  The Court affirmed the dismissal of an in-state defendant (and thus the removal of the case based on diversity/improper joinder) for failure to state a contract, quantum meruit, or fraud claim against him. International Energy Ventures Management, LLC v. United Energy Group, Ltd., No. 14-20552 (Aug. 21, 2015). (This opinion has subsequently been withdrawn and replaced)

No mandamus for misnomer

Jefferson sued Delgado Community College, alleging that it was “an agency or instrumentality of the government of the State of Louisiana.”  The Louisiana Attorney General appeared for the State, argued that she had not correctly named the State in the case, and suggested how to properly serve the college.  Jefferson v. Delgado Community College, No. 14-30379 (March 12, 2015, unpublished).  The district court denied the AG’s motion to dismiss, pointing to what the pleading said.  The AG sought appellate review and the Fifth Circuit found it had no jurisdiction.  The ruling was not appealable as a collateral order: “For example, personal jurisdiction implicates a defendant’s due process rights, but a defendant may not appeal the denial of a motion to dismiss based on lack of personal jurisdiction under the collateral order rule.”  The Court also denied mandamus relief, noting that the district court’s ruling was not clearly erroneous given the language of the pleading, and suggesting that the parties may wish to consider the AG’s suggestion about proper service for future proceedings in the case.

One Call Does All

In Matassarin v. Grosvenor, the Fifth Circuit reversed a dismissal on personal jurisdiction grounds, reminding: “For an intentional tort claim, purposeful availment can be established through ‘a single phone call and the mailing of allegedly fraudulent information’ to the forum state if ‘the actual content of communications with a forum gives rise to’ the claim, as when the communications’ content was allegedly fraudulent.”  (quoting Lewis v. Fresne, 252 F.3d 352, 355-56 (5th Cir. 2001)).  Here, the plaintiff described communications, received in Texas by email and fax, that he alleged to contain misrepresentations about several features of a condominium unit.

What’s new with personal jurisdiction in 2014? Read this case.

Ritter, a resident of Texas, owned an insurance company in the Cayman Islands. Litigation broke out, in Texas, between Ritter and the Cayman-based entity that managed the insurance company.  Ritter sought to join a Cayman-based bank to the Texas case, arguing that it failed to detect the manager’s wrongdoing.  The district court dismissed for lack of personal jurisdiction and the Fifth Circuit affirmed.  Monkton Ins. Servs. v. Ritter, No. 13-50941 (Sept. 26, 2014).  The case is notable as one of the first applications by the Circuit of two 2014 Supreme Court cases about personal jurisdiction.

First, as to general jurisdiction, applying Daimler AG v. Bauman, 134 S. Ct. 746 (2014), the Court observed: “It is . . . incredibly difficult to establish general jurisdiction in a forum other than the place of incorporation or principal place of business.”  The Court also reminded that a “sliding scale” analysis about the jurisdictional effect of a defendant’s website “is not well adapted to the general jurisdiction inquiry, because even repeated contacts with forum residents by a foreign defendant may not constitute the requisite substantial, continuous and systematic contacts required for a finding of general jurisdiction—in other words, while it may be doing business with Texas, it is not doing business in Texas.” (quoting Revell v. Lidov, 317 F.3d 467, 471 (5th Cir. 2002) (citing Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997)).

Second, as to specific jurisdiction, the Court noted that Walden v. Fiore, 134 S. Ct. 1115 (2014), emphasized that a plaintiff’s unilateral actions with respect to the forum cannot create personal jurisdiction.  Here, the bank transactions at issue were initiated by Ritter, running afoul of this principle.  The Court also found no abuse of discretion in denying jurisdictional discovery.

Transfer in MA. Creditor in TX. Jurisdiction?

Plaintiffs, citizens of Texas, sued two citizens of Massachusetts and their companies, alleging violations of the Texas Fraudulent Transfer Act.  Dontos v. Vendomation NZ Ltd., No. 12-10986 (Sept. 16, 2014, unpublished).  The district court dismissed for lack of personal jurisdiction and the Fifth Circuit reversed.

Noting that it was “hesitant to make per se rules regarding fact-specific minimum contacts analysis,” the Court observed generally that “a debtor who is liable under TUFTA to a Texas resident is likely subject to suit in the creditor’s forum state because the debtor acted with actual or constructive fraudulent intent to expressly aim their conduct at a creditor in the forum, where the tort’s harm was felt.”  Similarly, while “a mere ‘passive transferee[]” is unlikely to be subject to jurisdiction in the creditor’s resident state,” if ” the transferee ‘precipitate[s] and direct[s] an alleged fraudulent transfer at the expense of a known . . . creditor in Texas,” jurisdiction is likely.  (reviewing and applying Mullins v. TestAmerica, Inc., 564 F.3d 386, 400 (5th Cir. 2009) (citing Calder v. Jones, 465 U.S. 783, 789-90 (1984)).

Applying those principles, and accepting the plaintiffs’ allegations as true, the Court found sufficiently detailed allegations to state a prima facie case for personal jurisdiction as to both the debtor and the initial transferees.

Personal Jurisdiction 101

Two classic jurisdictional issues were presented in Special Industries, Inc. v. Zamil Group Holding Co., No. 13-20231 (Aug. 5, 2014, unpublished), which affirmed a dismissal on personal jurisdiction grounds in a forum dispute between Texas and Saudi Arabia.

First, citing Moncrief Oil Int’l, Inc. v. OAO Gazprom, 481 F.3d 309 (5th Cir. 2007), the Fifth Circuit emphasized the importance of the “hub” of contract performance, finding: “The foreseeability that [plaintiff] would perform part of its obligations under the contract in Texas, and that the parties did in fact engage other Texas companies for work on the project, is not enough for a finding of specific jurisdiction over the . . . defendants.  The contracts were formed outside of Texas, did not expressly provide for work to be done in Texas, the [plaintiff] individuals performing work under the contract did not do so solely from Texas, Texas was not the hub of the parties’ activities, the contracts’ choice of law provisions did not provide for Texas law, and payments under the contract were not made to Texas.”

Second, as to an “alter ego” theory of jurisdiction over another defendant, the Court held: “We find no authority allowing for the assertion of general jurisdiction over a foreign parent corporation premised only on the foreign corporation’s ownership of subsidiaries in the forum and representations by the foreign parent of its ‘unified’ corporate structure. The assertion of jurisdiction must be premised either on sufficient minimum contacts of the foreign parent with the forum or on some evidence demonstrating the parent company’s actual control over the internal business operations and affairs of the subsidiary.” (distinguishing Daimler-Benz AG v. Olson, 21 S.W.3d 707 (Tex. App.–Austin 2000, pet. dism’d w.o.j.)

The decedent’s ashes, Louisiana process servers, and personal jurisdiction

Defendant was personally served in Louisiana; the question was whether the plaintiffs fraudulently induced her to come there.  Gatte v. Dohm (June 23, 2014, unpublished). More specifically, Defendant (part owner of a Mexican clinic where the plaintiffs’ relative had died) alleged she had been duped into travelling to Louisiana to return the decedent’s ashes and personal effects to family members, as they were too distraught to travel themselves.  The district court found fraudulent inducement; the Fifth Circuit reversed, noting a conflict between the affidavits submitted by the parties and applying the principle: “Conflicts between the facts contained in the parties’ affidavits must be resolved in the plaintiff’s favor for purposes of determining whether a prima facie case for personal jurisdiction exists.”  (citing D.J. Investments, Inc. v. Metzeler Motorcycle Tire Agent Gregg Inc., 754 F.2d 542, 546 (5th Cir. 1985).

More drywall, more contacts, more jurisdiction.

“Picking up where we left off in Germano v. Taishan Gypsum Company, Ltd., 742 F.3d 576 (5th Cir. 2014),” the Fifth Circuit affirmed personal jurisdiction in three other suits involving default judgments arising from the “Chinese Drywall” MDL litigation.  In re: Chinese-Manufactured Drywall Products Liability Litig., No. 12-31213 (May 20, 2014).  Again, the Court found jurisdiction for the same basic reasons related to the “stream of commerce.” Applying Florida and also Louisiana law, this opinion also features a detailed discussion of when an agency relationship can give rise to jurisdiction, applying the recent Supreme Court case of Daimler AG v. Bauman, 134 S. Ct. 746 (2014).

Stream of commerce, from China to Virginia

The Chinese defendant in Germano v. Taishan Gypsum Co., part of the “Chinese Drywall” MDL proceeding, sought to set aside a default judgment for lack of personal jurisdiction.  742 F.3d 576 (5th Cir. 2014).  Applying Fourth Circuit law, which the Court characterized as taking a “more conservative” approach to recent Supreme Court decisions than the Fifth (see Ainsworth v. Moffett Engineering, 716 F.3d 174 (5th Cir. 2013).  The Court found jurisdiction under that Circuit’s “stream-of-commerce plus” test, noting that the defendant sold directly into Virginia, made markings on its product specific to the Virginia customer, modified the design specifically for that customer, and had a plan to expand sales by leveraging the relationship with the customer.  The Court also found a lack of excusable neglect, noting that service was proper under the Hague Convention and that the defendant delayed seeking legal counsel for many months.  

Go away, but the right way.

Plaintiffs sued for defamation, based on critical comments about their role in the Chinese drywall MDL that ended up on the “Above the Law” website.  Herman v. Cataphora, Inc., No.12-30966 (Sept. 17, 2013).  The Fifth Circuit agreed with the district court that Louisiana had no jurisdiction over the defendants because that state was not the “focal point” of the statements, citing Calder v. Jones, 465 U.S. 783 (1984) and Clemens v. McNamee, 615 F.3d 374 (5th Cir. 2010).  It took issue, however, with the district court granting the motion to dismiss and then ordering a transfer.  It noted that a district court has authority to transfer (under 28 U.S.C. § 1406(a)) if it determines that it lacks personal jurisdiction, and therefore vacated the dismissal order and remanded with instructions to order transfer.

No personal jurisdiction under Calder v. Jones

Plaintiff asserted personal jurisdiction under Calder v. Jones, 465 U.S. 783 (1984), alleging that a receiver’s purported misconduct would forseeably damage investors in Texas. Bustos v. Lennon, No. 12-50765 (August 16, 2013, unpublished).  The Fifth Circuit affirmed dismissal, finding that the alleged misconduct was not intentionally aimed at Texas, and that jurisdiction did not comport with “fair play and substantial justice” given the status of related litigation in another state.

Texas contacts “integral” to legal malpractice claim, but not a basis for jurisdiction over it

An insurance company complained that its counsel allowed entry of a consent judgment in a Louisiana case that wrongly imposed $400,000 in liability on it that another insurer should have covered. The company, based in South Carolina, sued for legal malpractice in Texas, the location of the third-party administrator who had overseen the counsel. Companion Property & Casualty v. Palermo, No. 12-11255 (July 17, 2013).  The Fifth Circuit found that the firm’s relationship with the TPA was not enough to establish general jurisdiction, and also found no basis for personal jurisdiction in Texas over the Louisiana-based firm.  The counsel was in Louisiana, the alleged malpractice occurred in Louisiana, and the insured was in South Carolina: “Although [the firm’s] contacts with [the TPA] are factually related – and perhaps integral – to the substance of [Plaintiff’s] claim, the alleged malpractice does not arise from a breach of some duty owed to [the TPA].”

No general jurisdiction in TX over defense contractor

The defendant in Bowles v. Ranger Land Systems did not have a bank account, registered agent, or office in Texas.  No. 12-51255 (June 16, 2013, unpublished).  As a defense contractor, the company had a handful of employees at three Army bases in Texas, but that presence was not substantial enough to create general jurisdiction.  (citing Johnston v. Multidata Systems Int’l Corp., 523 F.3d 602, 612-13 (5th Cir. 2008) (presence of two employees, who reported to out-of-state supervisor, was “certainly a regular contact with Texas” but was “not substantial enough to create a general business presence in Texas”)).  The Fifth Circuit also found no abuse of discretion in denying further jurisdictional discovery based on these allegations.

Roll on, “stream of commerce,” roll on.

In 2011 in J. McIntyre Machinery v. Nicastro, the Supreme Court revisited the issue of specific personal jurisdiction over a manufacturer based on putting a product into the “stream of commerce.”  131 S. Ct. 2780 (2011).  While the fractured Court did not produce a majority opinion, the plurality and a 2-Justice concurrence expressed concern about a view of that doctrine that would allow jurisdiction in a particular state based on a manufacturer’s general intent to do business across the country.  The Fifth Circuit directly addressed that language in Ainsworth v. Moffett Engineering, No. 12-60155 (May 9, 2013), finding that the plurality was not controlling, and that the 2-Justice concurrence was decided on the limited ground that no formulation of the doctrine would allow jurisdiction based on that manufacturer’s small number of shipments into the forum.  Because the defendant in Ainsworth had over 100 shipments during the relevant time, jurisdiction was appropriate. Language from past Circuit cases that may be inconsistent with McIntyre was noted but kept in place for now.

Website jurisdiction

While of limited precedential value because it uses “plain error” review, Ward v. Rhode touches on the role of websites in personal jurisdiction.  No. 12-41201 (May 3, 2013, unpublished).  Plaintiff alleged that the defendants placed a false “Scam Alert” about Plaintiff’s debt settlement services on a website.  The court observed: “The [Defendants’] website is interactive to the extent that it allows users to post their opinions about the debt-counseling services that they have used.  However, it neither allows users to purchase products online, nor sells subscriptions to view its content.  Therefore, the nature of the exchange of information is not commercial.”  (citing Mink v. AAAA Dev. LLC, 190 F.3d 333, 336 (5th Cir. 1999)).  Accordingly, it was “not clear or obvious” that the website’s interactivity with Texans and the commercial nature of that interaction was sufficient to establish jurisdiction.

“Unilateral transport” of product defeats specific jurisdiction

Plaintiff purchased a shaved-ice machine in Louisiana, made by Southern Snow, a Louisiana-based business.  She moved the machine to Mississippi, injured her hand while cleaning it, and sued for damages in Mississippi.  Irvin v. Southern Snow Manufacturing, No. 11-60767 (March 13, 2013, unpublished).  The Fifth Circuit agreed with the district court that she did not establish specific jurisdiction under a stream-of-commerce theory.  Even assuming that Southern Snow had minimum contacts by making a substantial percentage of its sales into neighboring Mississippi, her claim did not arise out of those contacts because “Southern Snow sold the machine to a Louisiana customer and had no knowledge that, years later, Irvin unilaterally transported it into Mississippi.”  General personal jurisdiction was not at issue.  The Court’s emphasis on the “arising out of” factor echoes its recent opinion in ITL International v. Constenla, S.A., 669 F.3d 493 (5th Cir. 2012).  The vagaries of snow cone sales produced another published Fifth Circuit opinion, on procedural due process and pleading issues, in Bowlby v. City of Aberdeen, 681 F.3d 215 (5th Cir. 2012).

China > Texas in forum non conveniens analysis

The defendant in Innovation First Int’l v. Zuru Inc. removed a trade secret case about a toy robotic fish and then obtained dismissal on forum non conveniens grounds.  No. 12-10511 (Feb. 19, 2013, unpublished).  The Fifth Circuit found no abuse of discretion in the district court’s conclusions that the design and production of the fish took place in China and that the bulk of witnesses and evidence were in China, and affirmed based on the analogous case of Dickson Marine v. Panalpina, Inc., 179 F.3d 331 (5th Cir. 1999).  A revised opinion slightly changed the Court’s analysis of the deference due to the plaintiff’s choice of forum.

Sanctions for postjudgment conduct

The judgment debtors in Seven Arts Pictures v. Jonesfilm were found in civil contempt for failure to answer postjudgment discovery and other issues about enforcement of a judgment.  No. 11-31124 (Feb. 18, 2013, unpublished).  The Fifth Circuit affirmed, finding that the district court had general personal jurisdiction over the debtors, that the debtors had waived arguments about the orders by not timely and properly objecting below, and that the district court did not abuse its discretion in awarding $21 thousand in attorneys fees.  While the holdings on jurisdiction, waiver, and attorneys fees draw heavily from the specific facts of the case, the legal framework used is of broad applicability.  Footnote 7 acknowledges the unusual procedural posture of the jurisdiction issue, which had not been raised until after the notice of appeal was filed.

No port for $26 million arbitration award in shipping dispute

Denied enforcement of a $26 million arbitration award in China’s Fujian Province (that court finding the award invalid because an arbitrator was imprisoned during the proceedings), the plaintiff sought recognition in the Eastern District of Louisiana.  First Investment Corp. of the Marshall Islands v. Fujian Mawei Shipbuilding,  No. 12-30377 (Dec. 21, 2012, revised Jan. 17, 2013). The Fifth Circuit affirmed dismissal for lack of personal jurisdiction with three holdings: (1) the recent case of Goodyear Dunlop Tires v. Brown, 131 S. Ct. 2846 (2011), removed doubt as to whether foreign corporations could invoke due process protection about jurisdiction; (2) the New York Convention did not abrogate those rights; and (3) no “alter ego” relationship among the relevant companies was shown that could give rise to jurisdiction.  In a companion case, the Court affirmed a ruling that denied jurisdictional discovery based on “sparse allegations” of alter ego.    Covington Marine v. Xiamen Shipbuilding, No. 12-30383 (Dec. 21, 2012); cf.Blake Box v. Dallas Mexican Consulate, No. 11-10126 (Aug. 21, 2012) (reversing jurisdictional discovery ruling).