United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
JAMES D. KIRK, Magistrate Judge.
Before the court is a motion to dismiss, doc. #21, filed by Hank McWhorter and a motion to dismiss, doc. #24, filed by J. Flint Liddon. Both motions are referred to me by the district judge for report and recommendation. McWhorter's pro se motion as well as Liddon's motion question whether this court has personal jurisdiction over them.
Plaintiffs are the widow and surviving children of Woodie Godwin, a long haul truck driver who was killed in a vehicular accident in Alabama in November 2012 caused by a phantom vehicle. Plaintiffs are all residents of the State of Louisiana and defendants are both residents of the State of Alabama. Liddon is a Birmingham attorney and McWhorter is a Greene County deputy sheriff.
Plaintiffs allege that McWhorter investigated the accident and "ran" the potential liability lawsuit for Liddon. A contract of representation was signed but Liddon then advised Godwin that he would not be able to assist her because there was no chance of recovery against anyone who might have been responsible for the accident. Later, however, Liddon discovered that the accident was caused by a phantom vehicle which fact would bring into play uninsured motorist coverage on the truck. Liddon so advised Godwin. The parties disagree as to what happened next. Liddon claims that he continued to correspond with Godwin and that she authorized him to proceed to settle the case with the insurer which he did, depositing the settlement funds into his trust account after negotiating the check in accordance with the limited power of attorney contained in his employment contract.
Godwin terminated the relationship by certified letter, engaged Louisiana counsel, and filed the instant suit. In their unverified complaint, plaintiffs claim that Liddon settled the suit without authority, negotiated the insurer's settlement check without authority and refused to release the funds in his trust account. They also allege that Liddon and McWhorter traveled to Louisiana in an attempt to intimidate Godwin into agreeing to the settlement. Finally, plaintiffs ask this court, in the alternative, to award Liddon attorney fees based on quantum meruit. In general, plaintiffs claim damages for fraud and conversion.
There is also pending in Alabama state court a suit seeking the determination of the amount of attorney fees due Liddon.
Defendant Liddon seeks dismissal of this suit for improper service of process and for lack of personal jurisdiction over him and, alternatively, asks this court to abstain or at least stay this suit pending the Alabama state court's determination. I construe McWhorter's handwritten, pro se, motion to dismiss to be one based on lack of personal jurisdiction.
Law and Analysis
The plaintiff carries the burden of making a prima facie showing that the defendants have meaningful contacts with the forum state. Luv N' Care, Ltd. v. Insta-Mix, Inc., 438 F.3d 564, 469 (5th Cir. 2006), quoting Wyatt v. Kaplan, 686 F.3d 276, 280 (5th Cir. 1982). The court may consider the entire record, but plaintiff's allegations in the complaint must be taken as true unless controverted by affidavit. Where conflicts exist, resolution must be made in favor of the plaintiff. See Revell v. Lidov, 317 F.3d 467, 469 (5th Cir.2002), quoting Alpine View Co., Ltd. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir. 2000).
Federal courts in Louisiana may exercise jurisdiction over a non-resident defendant only to the extent allowed by Louisiana's Long Arm statute and as consistent with due process. Stripling v. Jordan Production Co., LLC, 234 Fed. 3d 863 (5th C. 2000). Louisiana's long arm statute extends jurisdiction to the constitutional limits of due process. La. R.S. 13:3201(B). Burstein v. State Bar of California, 693 F.2d 511 (5th C. 1982). Jurisdiction consistent with due process exists where the defendant has purposely availed himself of the benefits and protections of the forum state by establishing "minimum contacts" with the forum state, and the exercise of jurisdiction over that defendant does not offend "traditional notions of fair play and substantial justice." Mink v. AAAA Development LLC, 190 Fed. 3d 333, 336 (5th C. 1999) (quoting International Shoe., supra).
As the Fifth Circuit explained in Luv n' Care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465 (5th C. 2006), the Due Process Clause of the Fourteenth Amendment guarantees that no federal court may assume jurisdiction in personam of a non-resident defendant unless the defendant has meaningful "contacts, ties, or relations" with the forum state. Int'l Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Jurisdiction may be general or specific. Where a defendant has "continuous and systematic general business contacts" with the forum state, Helicopteros Nacionales de Colombia, S.A. v. Hall, 415, 104 S.Ct. 1868, (1984), the court may exercise "general" jurisdiction over any action brought against that defendant. Id. at 414, 104 S.Ct. 1868 n. 9.FN2 Where contacts are less pervasive, the court may still exercise "specific" jurisdiction "in a suit arising out of or related to the defendant's contacts with the forum." Id. at 414, 104 S.Ct. 1868 n. 8.
Minimum contacts may be established either through contacts sufficient to assert specific jurisdiction or contact to assert general jurisdiction. Alpine View Co. Ltd. v. Atlas Coco AB, 205 Fed. 3d 208, 214 (5th C. 2000). Only where a non-resident defendant has "purposely directed its activities at the forum state and the litigation results from alleged injuries that arise out of or relate to those activities" are the defendants' contacts sufficient to support the exercise of specific jurisdiction over that defendant. Burger King v. Rudzewicz, 105 S.Ct. 2174 (1985). Stated differently, specific jurisdiction exists where a defendant purposely avails itself of the privileges of conducting activities within the forum state, thus invoking the benefits of its laws." Dickson Marine, Inc. v. Panalpina, Inc. 179 Fed. 3d 331 (5th C. 1999).
In this case, plaintiffs have not attempted to show, by affidavit or otherwise, any history of continuous and systematic contacts between the non-resident defendants and ...