Basis for Limitation of Federal Court Review Lawfulness
Lamothe Law Firm attorneys have over 100 years of combined feel practicing in federal courtroom. Richard Martin recently wrote an article for other attorneys on "Legal Standards for Federal Dominion of Civil Procedure 12 Motions to Dismiss" for the Louisiana Association for Justice publication, Louisiana Advocates. Here is the article in its entirety.
LEGAL STANDARDS FOR FEDERAL RULE OF Civil PROCEDURE 12 MOTIONS TO DISMISS
This commodity discusses the three well-nigh common federal court motions to dismiss which tin be brought against your clients, and the standard for overcoming them These motions include Fed. R. Civ. P. 12(b)(1), which challenges subject thing jurisdiction, Fed. R. Civ. P. 12(b)(ii), which challenges personal jurisdiction, and Fed. R. Civ. P. 12(b)(six) which asserts that plaintiff has failed to state a merits upon which relief may be granted. Winning these motions usually confers general or specific jurisdiction. But, in that location are also occasions when, despite a lack of general or specific jurisdiction, the court might be able to exercise Dominion 4(k)(2) over the defendant. Typically, Rule 4(m)(2) will involve an "offshore" defendant which plays a "shell game" ducking U.S. jurisdiction but still has sufficient contacts with the United States as a whole to satisfy due process concerns.
I. Rule 12(b)(1)
Federal courts are courts of express jurisdiction; without jurisdiction conferred past statute, they lack the power to adjudicate claims.1 A motion to dismiss under Federal Rules of Civil Procedure 12(b)(i) challenges a federal court'southward subject-matter jurisdiction.two Nether Rule 12(b)(1), "[a] case is properly dismissed for lack of bailiwick thing jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case."3 "Lack of subject-matter jurisdiction may exist found in the complaint lonely, the complaint supplemented past the undisputed facts equally evidenced in the record, or the complaint supplemented by the undisputed facts plus the courtroom's resolution of the disputed facts."4 "When grounds for dismissal may be under both Rule 12(b)(one) and Rule 12(b)(6), the Court should, if necessary, dismiss only under the former without reaching the question of failure to state a merits."five
II. Rule 12(b)(2)
"Personal jurisdiction 'is an essential element of the jurisdiction of a district court, without which it is powerless to proceed to an adjudication.'half dozen When a not-resident defendant challenges personal jurisdiction in a move to dismiss, the plaintiff bears the burden of proving that personal jurisdiction exists.vii If the district court rules on the move without an evidentiary hearing, as in this instance, the plaintiff demand just brand a prima facie showing of personal jurisdiction.8 In determining whether the plaintiff has made a prima facie showing of personal jurisdiction, the district court must accept the allegations of the complaint as true, except every bit controverted by opposing affidavits, and all conflicts in the facts must be resolved in favor of plaintiffs.ix Thus, the commune courtroom may consider matters outside the complaint, including affidavits, when determining whether personal jurisdiction exists.10
To practise personal jurisdiction over a non-resident defendant, ii requirements must be satisfied. "First, the forum state'southward long-arm statute must confer personal jurisdiction. 2nd, the exercise of jurisdiction must not exceed the boundaries of the Due Process Clause of the Fourteenth Subpoena."11 Because Louisiana's long-arm statute confers personal jurisdiction to the limits of constitutional due process, these two inquiries become one and the aforementioned.12
The Due Process Clause of the Fourteenth Amendment "operates to limit the power of a State to assert in personam jurisdiction over a nonresident defendant."xiii For a court's practice of personal jurisdiction over a non-resident defendant to be constitutional nether the Due Procedure Clause, (i) "that defendant [must have] purposefully availed himself of the benefits and protections of the forum country by establishing 'minimum contacts' with the forum country; and (2) the practise of jurisdiction over that defendant [must] not offend 'traditional notions of fair play and substantial justice.'"14 The "minimum contacts" test takes two forms, depending on the blazon of jurisdiction the courtroom seeks to exercise over the defendant: general jurisdiction or specific jurisdiction. In add-on, the Federal Rules of Civil Procedure provide for a third course of personal jurisdiction in cases arising under federal law known every bit Rule iv(k)(2) jurisdiction.
III. Rule 12(b)(vi)
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district courtroom may dismiss a complaint, or any function of it, for failure to land a claim upon which relief may exist granted if the plaintiff has not set along factual allegations in support of his claim that would entitle him to relief.15 "To survive a movement to dismiss, a complaint must contain sufficient factual thing, accepted as true, to 'state a merits to relief that is plausible on its face up.'"xvi "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."17
The court, however, does not have as truthful legal conclusions or mere conclusory statements, and "conclusory allegations or legal conclusions masquerading as factual conclusions volition non suffice to foreclose a motion to dismiss."18 "Threadbare recitals of elements of a cause of action, supported by mere conclusory statements" or "naked assertions devoid of further factual enhancement" are non sufficient.xix
In summary, "factual allegations must be enough to raise a right to relief above the speculative level."20 "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but information technology has not shown'—that the pleader is entitled to relief."21; "Dismissal is appropriate when the complaint 'on its face shows a bar to relief.'"22
Four. Subject Thing Jurisdiction
Federal court complaints assert discipline thing jurisdiction under 28 United statesC. § 1331 ("federal question" jurisdiction), 28 U.s.a.C. § 1332 ("diversity of citizenship" jurisdiction), or 28 U.Due south.C. § 1333 ("admiralty or maritime" jurisdiction).
A claim under the Jones Act is a federal question.23 To establish federal question jurisdiction based on the Jones Act,24 a plaintiff must criminate a colorable Jones Human activity claim.25 In guild to reach this, plaintiff must allege (1) he was employed as a seaman connected to a vessel; (ii) he was injured in the course of his employment; and (iii) his employer's negligence caused his injury.26 Whether or not Plaintiff's claims are supported by the facts is non the research when determining discipline thing jurisdiction.27 A federal court has subject affair jurisdiction over a Jones Human action merits and so long every bit the plaintiff has properly "alleged each of the elements."28
The examination for seaman status under the Jones Human action is well established in this circuit.29 The plaintiff must constitute (1) that he was assigned permanently to, or performs a substantial part of his work on, (2) a vessel in navigation and (iii) that the capacity in which he is employed, or the duty which he performs, contributes to the function of the vessel or the achievement of its mission.30 "A seaman does not lose his status because he is temporarily assigned past his employer to duties off his vessel."31
V. Full general jurisdiction.
A court may exercise full general jurisdiction over a non-resident accused when that defendant's contacts with the forum state are "continuous and systematic," regardless of whether such contacts are related to the plaintiff's cause of activeness.32 Stated differently, "[thou]eneral jurisdiction volition attach, fifty-fifty if the act or transaction sued upon is unrelated to the defendant'due south contacts with the forum state, if the defendant has engaged in 'continuous and systematic' activities in the forum land."33 The Supreme Court has explained, "for an individual, the paradigm forum for the exercise of general jurisdiction is the individual'southward domicile; for a corporation it is an equivalent place, 1 in which the corporation is fairly regarded as at home."34 That is, the corporation must have substantial, continuous, and systematic contacts with the forum state so as to "render [it] substantially at abode in the forum state.35 Generally, all the same, it is "incredibly difficult to establish full general jurisdiction in a forum other than the place of incorporation or principal place of business.36
To make a prima facie showing of general jurisdiction, Plaintiff must produce evidence that affirmatively shows that the defendant'due south contacts with the forum state are sufficient to satisfy due process requirements.37 A defendant's unrelated contacts must be so substantial, continuous and systematic so as to render it essentially at domicile in Louisiana.38
6. Specific jurisdiction.
When the accused's contacts are less pervasive, a court may exercise specific jurisdiction over a non-resident defendant "in a suit arising out of or related to the accused'southward contacts with the forum."39 Specific jurisdiction exists, for example, where a non-resident accused "has 'purposefully directed its activities at the forum state and the litigation results from alleged injuries that ascend out of or relate to those activities.'"40 Specific jurisdiction too exists where a non-resident accused "purposefully assets itself of the privilege of conducting activities within the forum Country, thus invoking the benefits and protections of its laws."41 "The not-resident's 'purposeful availment' must be such that the defendant 'should reasonably conceptualize existence haled into courtroom' in the forum state."42
The Fifth Circuit established a iii-factor assay to guide courts in assessing the presence of specific personal jurisdiction:
(i) Whether the defendant has minimum contacts with the forum country, i.e., whether it purposely directed its activities toward the forum land or purposely availed itself of the privileges of conducting activities there;
(2) Whether the plaintiff'southward cause of action arises out of or results from the accused'due south forum-related contacts; and
(3) Whether the do of personal jurisdiction is off-white and reasonable.43
To make a prima facie showing of specific personal jurisdiction, the plaintiff need but satisfy the first ii factors.44 If the plaintiff makes a prima facie showing, the burden of proof with respect to the third factor shifts to the defendant to "present a compelling example that the presence of some other considerations would render jurisdiction unreasonable."45
"Although jurisdictional allegations must exist accustomed as true, such acceptance does not automatically mean that a prima facie case for specific jurisdiction has been presented."46 Establishing a prima facie case yet requires the plaintiff to prove the nonresident defendant'southward purposeful availment of the benefits and protections of and minimum contacts with the forum state.47 A commune court need not credit conclusory allegations, even if uncontroverted.48 Plaintiff may be required to produce prove affirmatively demonstrating the defendant'due south purposeful availment of the benefits and protections of and minimum contacts with the forum country.49 If plaintiff does not criminate that the injuries leading to his litigation occurred in the forum state, a court may have specific jurisdiction over a tort but if the plaintiff proves that his injuries arise out of or result from the accused'due south purposefully directed activities toward the forum land.50
VII. Fed. R. Civ. P. iv(k)(2)
If there is neither general nor specific jurisdiction, there nevertheless might exist jurisdiction under Fed. R. Civ. P. 4(g)(two), which provides:
For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:
(A) the defendant is not bailiwick to jurisdiction in whatever state's court of general jurisdiction; and
(B) exercising jurisdiction is consequent with the United States Constitution and laws.
The Dominion was enacted to make full an important gap in the jurisdiction of federal courts in cases arising under federal police force:
Thus, there was a gap in the courts' jurisdiction: while a defendant may take sufficient contacts with the U.s.a. as a whole to satisfy due process concerns, if she had insufficient contacts with any single state; she would not be amendable to service past a federal courtroom sitting in that state . . . Rule 4(k)(2) was adopted in response to this trouble of a gap in the courts' jurisdiction . . . 51 "The Fifth Excursion has adopted the brunt-shifting framework adopted by the United State Court of Appeals for the Seventh Circuit."52 Under this framework:
The Plaintiff must brand a prima facie case that the rule applies by "showing (1) that the claim asserted arises under federal law, (2) that personal jurisdiction is not available under any situation-specific federal statue, and (3) that the putative defendant's contacts with the nation as a whole suffice to satisfy the applicative ramble requirements. Additionally, the plaintiff must certify that, based on the information that is readily available to the plaintiff and his counsel, the defendant is not subject field to suit in the courts of general jurisdiction of whatever state. Once plaintiff has made a prima facie instance, then the brunt shifts to the accused to produce show that demonstrates that it is subject field to jurisdiction in another state and/or that information technology has bereft contacts with the United states as a whole."53
The 5th Circuit has concluded that cases falling nether a federal court's admiralty jurisdiction are "merits[s] arising under federal law" for the purpose of Dominion four(k)(2).54 Therefore, Rule 4(k)(ii) applies if plaintiff tin demonstrate that "(1) the defendant in question is not subject field to the general jurisdiction of any other state, and (2) that exercising jurisdiction is consequent with the due procedure clause of the Fifth Subpoena, pregnant that the defendant has sufficient minimum contacts with the United States equally a whole.55
"The Fifth Excursion has held that a 'piecemeal analysis of the existence vel non of jurisdiction in all 50 states is non necessary. Rather, so long equally a defendant does not concede jurisdiction in another country, a courtroom may use iv(k)(2) to confer jurisdiction.'"56 "If . . . the defendant contends that he cannot be sued in the forum state and refuses to identify any other where accommodate is possible, then the federal court is entitled to use Rule 4(chiliad)(two)."57
This was precisely the example in O'Berry five. Ensco PLC, et al., No. 16-3569 (East.D.La.), a Jones Deed case Lamothe Law House, LLC has pending before Judge Susie Morgan of the Eastern District. There, Ensco PLC stated in pleadings:
"In this case, there is no basis for jurisdiction in any specific Commune Court considering [it does] not have whatever contact with the Us and [is a] foreign corporation [] that maintain[s] all of [its] activities overseas."
Judge Morgan constitute that this statement was "…. sufficient to show the ENSCO plc has not conceded information technology is subject to the general jurisdiction of whatever state." March xx, 2017 Order and Reasons (Rec. Doctor. 79 at p. 16). Discovery then revealed that iii Ensco PLC senior vice-presidents lived and worked in Houston, and that it as well maintained its western hemisphere operations office in Houston.58 Consequently, at p. 17 of her Order and Reasons, Judge Morgan held:
"The Court finds that ENSCO plc has sufficient contacts with the United states as a whole such that exercising jurisdiction over ENSCO plc pursuant to Rule 4(chiliad)(2) of the Federal Rules of Civil Procedure does not exceed the boundaries of the due procedure clause of the Fourteenth Subpoena."
VIII. An unusual side benefit of Rule iv(k)(2) jurisdiction?
I've mulled this over a bit, merely my decision is likely true. Whereas venue in a federal court lawsuit is normally controlled past the provisions of 28 UsC. § 1391(b)(1) and (2)59, Dominion 4(one thousand)(2) jurisdiction seems to dispense with § 1391. Why? Because the target accused denies beingness subject area to jurisdiction in any state's court of general jurisdiction, thus when plaintiff chooses the venue, the court looks for "contacts with the United states as a whole."sixty My belief is that a foreign corporation which is subject to Rule iv(k)(two) jurisdiction here is also subject area to jurisdiction in any other U.Due south. district court.
ane In re FEMA Trailer Formaldehyde Products Liability Litigation, 668 F.3d 281, 286 *(5th Cir. 2012).
2 See Fed. R. Civ. P. 12(b)(1).
3 Dwelling Builders Association of Mississippi, Inc., v. City of Madison,143 F.3d 1006, 1010 (5th Cir. 1998).
4 In re FEMA, 668 F.3d at 287.
v Valdery v. Louisiana Workforce Commission, 2015 WL 5307390 (East.D. La. Sept. ten, 2015).
6 Anderson v. GlobalSantaFe Offshore Services, Inc., 924 F.Supp.2d 738, 742 (E.D. La. 2013) (quoting Rhurgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)).
7 Luv North' Care, Ltd. V. Insta-Mix, Inc., 438 F.3d 465, 469 (5thursday Cir. 2006)(citing Wyatt v. Kaplan, 686 F.second 276, 280 (5th Cir. 1982)).
8 See id.
9 Id. See also Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (vth Cir. 1985).
10 Jobe v. ATR Mktg., Inc., 87 F.3d 751, 753 (fiveth Cir. 1996).
11 Seiferth 5. Helicopteros Atuneros, Inc., 472 F.3d 266, 270 (5th Cir. 2006).
12 Luv N' Care, 438 F.3d at 469; La. R.S. 13:3201(B).
13 Helicopteros Nacionales de Colombia, Due south.A. v. Hall, 466 U.South. 408, 413-fourteen (1984).
xiv Latshaw v. Johnson, 167 F.3d 208, 211 (5th Cir. 1999).
xv Bell Atl. Corp. V. Twombly, 550 U.S. 544, 555 (2007); Cuvillier 5. Taylor, 503 F.3d 397, 401 (5th Cir. 2007).
sixteen Ashcroft v. Iqbal, 556 U.South. 662, 678 (2009)(quoting Twombly, 550 U.S. at 570).
17 Id.
18 S. Christian Leadership Conference v. Supreme Courtroom of the State of Louisiana, 252 F.3d 781, 786 (5th Cir. 2001)(citing Fernandez-Montes v. Allied Pilots Donkey'n, 987 F.2nd 278, 284 (5th Cir. 1993)).
19 Iqbal, 556 U.S. at 663.
xx Twombly, 550 U.S. at 555.
21 Id. (Quoting Fed. R. Civ. P. viii(a)(two)).
22 Cutrer v. McMillian, 308 F.App'x 819, 820 (5th Cir. 2009)(per curiam).
23 World Tanker Carriers Corp. v. M/V Mawlaya, 99 F.3d 717, 723 (5th Cir. 1996); See 1 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § vi-20 (5Th ed. 2011).
24 46 U.S.C. § 30104, et seq..
25 Halloway 5. Heathen River Dockside Sweafood, Inc., 2002 WL 31741211 (E.D. La. December. 5, 2002).
26 See, e.thousand., id.
27 See Holloway, 669 F.3d at 448.
28 See id. At 453.
29 Smith v. Odom Offshore Surveys, Inc., 791 F.2d 411, 415 (fiveth Cir. 1986).
30 Barrett v. Chevron, U.s.A., 781 F.2d 1067, 1072-73 (5th Cir. 1986).
31 Smith 791 F.2nd at 415 (citing Guidry five. South Louisiana Contractors, Inc., 614 F.second 337, 353 (5th Cir. 1980)("[H]ow long a seaman'south condition continues afterward a shoreside assignment is itself a fact question dependent on such factors as the duration of the assignment, it's relationship to his employer'southward business, whether the employee was free to accept or pass up it without endangering his employment status, and any other factors relevant to the ultimate research."). See too Nunez 5. Offshore Marine Contractors, Inc., 2013 WL 12106126 (S.D. Tex. Dec. 9, 2013) (denying defendant'southward motility for summary judgment regarding one of plaintiff's Jones Act claims relatd to an injury that occurred during a training exercise.).
32 Helicopeteros Nacionales, 466 U.Southward. at 413-14.
33 721 Bourbon, Inc. v. House of Auth., L.L.C., 140 F.Supp. threerd 586, 592 (E.D. La. 2015).
34 Goodyear Dunlop Tires Operations, South.A. v. Dark-brown, 564 U.S. 915, 924 (2011).
35 Daimler AG v. Bauman, ___ U.Southward. ___, 134 South.Ct. 746, 754 (2014).
36 Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 432 (5thursday Cir. 2014) (citing Daimler AG, 134 S.Ct. At 760; Helicopteros Nacionales, 466 U.S. at 411-12).
37 Alpine View Co., Ltd. v. Atlas Copco AB, 205 F.3d 208, 217 (5th Cir. 2000).
38 See id.; Daimler AG, 134 S.Ct. at 760.
39 Luv Northward' Intendance, 438 F.3d at 469.
forty Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 868 (5th Cir. 2001)(quoting Alpine View Co., Ltd. v. Atlas Copco AB, 205 F.3d 208, 215 (5thursday Cir. 2000)).
41 Burger King Corp. five. Rudzewicz, 471 U.S. 462, 475 (1985) (citing Hansen v. Denckla,357 U.Due south. 235, 253 (1958)).
42 Ruston Gas Turbines, Inc. v. Donaldson Co., ix F.3d 415, 419 (vth Cir. 1993) (quoting Earth-Wide Volkswagen Corp. v. Woodson, 444 U.South. 286, 297 (1980)).
43 Nuovo Pignone SpA v. STORMAN ASIA M/5, 310 F.3d 374, 378 (5th Cir. 2002); Luv N' Care, 438 F.3d at 469.
44 Athletic Training Innovations, LLC 5. eTagz, Inc., 955 F.Supp.second 602, 613 (Due east.D. La. 2013)
45 Autogenomics, Inc. v. Oxford Gene Tech., 566 F.3d 1012, 1018-19 (Fed. Cir. 2009); Able-bodied Training Innovations, 955 F.Supp.2nd at 613.
46 Panda Brandywine Corp., 253 F.3d at 868.
47 Id. (Citing Burger Rex, 471 U.S. at 474 ("The constitutional touchstone remains whether the defendant purposefully established 'minimum contacts' in the forum state.")).
48 Id.at 869 (citing Felch v. Transportes Lar-Mex, 92 F.3d 320, 326 (fiveth Cir. 1996)).bailiwick to jurisdiction in any state's court of general jurisdiction
49 Id.
50 Anderson, 924 F.Supp.2d at 745.
51 Adams five. Unione Mediterranea DiSicurta, 364 F.3d 646, 650-51 (vth Cir. 2004) (quoting World Tanker Carriers Corp. five. K/Five Mawlaya, 99 F.3d 717, 721-22 (5th Cir. 1996)).
52 Johnson 5. PPI Technology Services, L.P., 926 F.Supp.2d 873, 883-83 (Eastward.D. La.
2013) (citing ISI Int'l Inc. 5. Borden Ladner Gervais, LLP, 226 F.3d 648 (7thursday Cir. 2001)).
53 Id. at 883 (citing United States v. Swiss American Bank
54 Earth Tanker Carriers Corp., 99 F.3d at 723.
55 Johnson, 926 F.Supp.2d at 882 (citing Adams, 364 F.3d at 651).
56 Ogden five. GlobalSantaFe Offshore Services, 31 F.Supp.3d 832, 839-40 (E.D. La. 2014) (quoting Adams, 364 F.3d at 651).
57 Id. at 840. Encounter as well Johnson, 926 F.Supp.2nd at 884-85.
58 Compare O'Drupe to Patterson v. Aker Solutions Inc., 826 F.3d 231 (5th Cir. 2016) where the U.South. Fifth Circuit affirmed a Western Commune denial of Dominion 4(1000)(two) jurisdiction. The Fifth Excursion focused on the sufficiency of the accused'due south continuous and systematic contacts with the The states, and found that sending eleven employees over a brief period does not rise to the level of making a defendant "at home" in the United States. In O'Berry, 3 Ensco senior vice-presidents, including the senior vice-president for western hemisphere operations and the senior vice-president for human resource lived in Houston on a long-term ground. In fact, the three were each served with copies of the summons and complaint at their residences.
59 E.chiliad, a judicial district in which whatever defendant resides, or a judicial district in which a substantial part of the events or omissions giving ascension to the claim occurred.
threescore I could non have made upwardly the following facts if I was writing an Admiralty examination at Tulane Law School. In O'Berry, plaintiff was a Mississippi resident denizen who filed suit in the Eastern Commune. He alleged Ensco PLC, a British plc, was a co-Jones Human activity employer with Ensco Limited, a Cayman Islands company, which "admits" information technology is plaintiff's Jones Act employer. Mr. O'Drupe was assigned to the ENSCO 88, a Liberian flagged jack-up drilling vessel operating off Saudi arabia. The vessel is owned by Ensco Offshore International, Inc., another Cayman Islands-based Ensco company. He had been transferred on newspaper from Ensco Offshore Inc., a Delaware corporation which drills in the Gulf of Mexico. He was injured in a swimming pool in Kingdom of saudi arabia while attending a mandatory helicopter escape-at-bounding main training course taught by SMTP Global, a Malaysian company acting as Ensco Limited's agent. O'Berry's human resource needs were handled in Houston by Ensco Incorporated, a Texas corporation, and his group health and disability insurance policies were held by Ensco International, Inc., a Delaware corporation.
Source: https://lamothefirm.com/2017/05/25/federal-court-motions-to-dismiss-and-the-standard-for-overcoming-them/
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