United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE
Jose Carmona, filed this action on April 10, 2017, in the
151st Judicial District Court of Harris County, Texas,
against defendant, Leo Ship Management, Inc. ("LSM"
or "Defendant"), asserting a claim for negligence
under the Longshore and Harbor Workers' Compensation
On November 22, 2017, Defendant filed a Notice of Removal
(Docket Entry No. 1). Pending before the court is Defendant
Leo Ship Management, Inc.'s Rule 12(b)(1) Motion to
Dismiss for Lack of Personal Jurisdiction and Memorandum in
Support Thereof ("Defendant's Motion to
Dismiss") (Docket Entry No. 3). 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 Jurisdiction
("Plaintiff's Response") (Docket Entry No. 10).
For the reasons stated below, the court concludes that the
Motion to Dismiss should be granted.
was a stevedore working aboard the M/V KOMATSUSHIMA
STAR. 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. Defendant managed and staffed the vessel
pursuant to a Ship Management Agreement with the vessel
owner, Lua Line S.A. 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." 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. Plaintiff observed a vessel crewmember
inspect the cargo to be discharged and turn over the hold to
Plaintiff for discharging. Plaintiff alleges that the bundle was
not properly stowed or bundled and that Defendant's
negligence caused Plaintiff's injuries. Defendant argues
that the court lacks personal jurisdiction over it.
Motion to Dismiss for Lack of Personal
Standard of Review
for lack of personal jurisdiction is governed by Federal Rule
of Civil Procedure 12(b)(2). When a foreign defendant moves
to dismiss for lack of personal jurisdiction under Rule 12(b)
(2), "the plaintiff 'bears the burden of
establishing the district court's jurisdiction over the
defendant.'" Quick Technologies, Inc. v. Sage
Group PLC, 313 F.3d 338, 343 (5th Cir. 2002), cert,
denied, 124 S.Ct. 66 (2003) (quoting Mink v. AAAA
Development LLC, 190 F.3d 333, 335 (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.'" Id. (quoting Wilson v.
Belin, 20 F.3d 644, 648 (5th Cir.), cert,
denied, 115 S.Ct. 322 (1994)). "In making its
determination, the district court may consider the contents
of the record before the court at the time of the motion,
including 'affidavits, interrogatories, depositions, oral
testimony, or any combination of the recognized methods of
discovery.'" Id. at 344 (quoting
Thompson v. Chrysler Motors Corp., 755 F.2d 1162,
1165 (5th Cir. 1985)) . 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 to credit conclusory allegations, even
if uncontroverted. 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 .
. . by th [e] Court." Ruston Gas Turbines, Inc. v.
Donaldson Co., Inc., 9 F.3d 415, 418 (5th Cir. 1993).
federal district court may exercise personal jurisdiction
over a nonresident defendant if "(1) the forum
state's long-arm statute confers personal jurisdiction
over that defendant; and (2) the exercise of personal
jurisdiction comports with the Due Process Clause of the
Fourteenth Amendment." McFadin v. Gerber, 587
F.3d 753, 759 (5th Cir. 2009), cert, denied, 131
S.Ct. 68 (2010). Since the Texas long-arm statute extends as
far as constitutional due process allows, the court considers
only the second step of the inquiry. Id.
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 'traditional notions of fair play and
substantial justice.'" International Shoe Co. v.
State of Washington, Office of Unemployment Compensation and
Placement, 66 S.Ct. 154, 158 (1945) (quoting
Milliken v. Meyer, 61 S.Ct. 339, 343 (1940)). 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." Burger King Corp. v.
Rudzewicz, 105 S.Ct. 2174, 2185 (1985). "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 'reasonably
anticipates being haled into court.'"
McFadin, 587 F.3d at 759.
are two types of 'minimum contacts': those that give
rise to specific personal jurisdiction and those that give
rise to general personal jurisdiction." Lewis v.
Fresne, 252 F.3d 352, 358 (5th Cir. 2001). Because the
parties agree that the court does not have general personal
jurisdiction over Defendant, the relevant inquiry is whether
the court can exercise specific jurisdiction over
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 traditional notions of fair play
and substantial justice." Gundle Lining, 85
F.3d at 205. Even a single contact can support specific
jurisdiction if the defendant "'purposefully avails
itself of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections of
its laws.'" Burger King, 105 S.Ct. at 2183.
"The non-resident's 'purposeful availment'
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)).
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. Navicr8 ShipManagement Private
Limited, 882 F.3d 96, 103 (5th Cir. 2018) (citing
Walden v. Fiore, 134 S.Ct. 1115, 1122 (2014)
("We have consistently rejected attempts to satisfy the
defendant-focused 'minimum contacts' inquiry by
demonstrating contacts between the plaintiff (or third
parties) and the forum State.")). Second, the contacts
relied upon must be purposeful rather than random,
fortuitous, or attenuated. Id. (citing
Walden, 134 at 1123) . Finally, the defendant must
seek some benefit, advantage, or profit by availing itself of
the jurisdiction. Burger King, 105 S.Ct. at 2183. 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. Moki Mac River Expeditions v.
Drugg, 221 S.W.3d 569, 575 (Tex. 2007) (citing
Burger King, 105 S.Ct. at 2181-85). Since specific
jurisdiction is claim specific, "[a] plaintiff bringing
multiple claims that arise out of different forum contacts of
the defendant must establish specific jurisdiction for each
claim." Seiferth v. Helicopteros Atuneros,
Inc., 472 F.3d 266, 274 (5th Cir. 2006).
The Parties' Arguments
argues that the court may not exercise personal jurisdiction
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