United States District Court, W.D. Louisiana, Lafayette Division
Elizabeth E. Foote
B. WHITEHURST UNITED STATES MAGISTRATE JUDGE
the Court is an unopposed Rule 12(b)(2) Motion To Dismiss filed
by defendant, L&L Insurance Agency
(“L&L”) [Rec. Doc. 29]. For the reasons that
follow, the Court will grant the Motion.
personal injury lawsuit arises from an automobile accident
that occurred on January 21, 2104. Plaintiffs, Christine
Cormier, individually and on behalf of Aaron Cormier, and
Byron Cates, individually and on behalf of Grace Cates,
instituted this action in the 27th Judicial
District Court, Parish of St. Landry, Louisiana against
defendants Ubaldo Soroa (“Soroa”), L&L and
Wilshire Insurance Company (“Wilshire”). R.
1. On October 13, 2016, Wilshire removed the lawsuit to
this Court. Id.
allege in their Petition for Damages that Soroa, on behalf of
Hawk Logistics was provided a policy of automobile liability
insurance by L&L Insurance Company
(“L&L”) through his employer, Hawk Logistics
and or through SOL Express Inc. R. 1, ¶¶ 7, 9.
In its Motion, L&L cites the affidavit of the company
vice president, Yamileth Leon.The record provides that
“L&L is an insurance ‘broker' which
secures insurance coverage for its client(s) and
customer(s).” R. 29-3, Affidavit of Leon. Leon
states that L&L is a North Carolina domestic corporation
having its principal place of business in Lincolnton, North
Carolina and is only licensed to broker/sell insurance in the
states of North Carolina, South Carolina and Florida, and is
not licensed in Louisiana. Id. Leon further states
that L&L has no offices nor any present and active
employees in the State of Louisiana. Id. L&L
does not pay any form of taxes in Louisiana and has no
business activity nor any contacts with Louisiana.
Id. Finally, Leon avers that L&L's marketing
is not directed towards or intended for Louisiana residents.
Rule 12(b)(2) Standard
a defendant challenges personal jurisdiction, the party
seeking to invoke the power of the court bears the burden of
proving that jurisdiction exists.” Luv N'care,
Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir.
2006) When a court rules on a motion to dismiss for lack of
personal jurisdiction without holding an evidentiary hearing,
as in this case, the plaintiff need only make a prima facie
showing of personal jurisdiction. Guidry v. U.S. Tobacco,
Co., Inc., 188 F.3d 619, 625 (5th Cir. 1999). “The
allegations of the complaint, except insofar as controverted
by opposing affidavits, must be taken as true, and all
conflicts in the facts must be resolved in favor of the
plaintiff[ ] for purposes of determining whether a prima
facie case for personal jurisdiction has been
established.” Thompson v. Chrysler Motors
Corp., 755 F.2d 1162, 1165 (5th Cir. 1985). “In
determining whether personal jurisdiction exists, the trial
court is not restricted to a review of the plaintiff's
pleadings.” Jobe v. ATR Mktg., Inc., 87 F.3d
751, 753 (5th Cir. 1996). The Court may consider matters
outside the complaint, including affidavits, interrogatories,
depositions, or any combination of the recognized methods of
discovery. Id. Jurisdiction over a non-resident
defendant is proper when (1) the defendant is amenable to
service of process under the long-arm statute of the forum
state and (2) the exercise of personal jurisdiction is
consistent with the Due Process Clause of the Fourteenth
Amendment. Dalton v. R&W Marine, Inc., 897 F.2d
1359, 1361 (5th Cir. 1990). In the instant case, “these
two inquiries merge into one because Louisiana's long-arm
statute permits service of process coterminous with the scope
of the due process clause.” Nuovo Pignone, SpA v.
STORMAN ASIA M/V, 310 F.3d 374, 378 (5thCir.
2002) (reversed in part on other grounds) citing La.
R.S. 13:3201(B). “The Due Process Clause of the
Fourteenth Amendment protects a corporation, as it does an
individual, against being made subject to “the binding
judgments of a forum with which it has established no
meaningful ‘contacts, ties, or relations.'”
Pervasive Software Inc. v. Lexware GmbH & Co.
KG, 688 F.3d 214, 2205th Cir. 2012). A court
may exercise personal jurisdiction over a non-resident
defendant when “(1) that defendant has purposefully
availed itself of the benefits and protections of the forum
state by establishing ‘minimum contacts' with the
forum state and (2) the exercise of personal jurisdiction
over that defendant does not offend ‘traditional
notions of fair play and substantial justice.'”
Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir.
1999) quoting Int'l Shoe, 326 U.S. at 316.
contacts” can be established through specific
jurisdiction or general jurisdiction. Alpine View Co.
Ltd. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir.
2000). Specific personal jurisdiction exists (1) when a
defendant has purposely directed its activities, or availed
itself of the privileges of conducting its activities, toward
the forum state; (2) the controversy arises out of or is
related to those activities; and (3) the exercise of
jurisdiction is fair, just, and reasonable. Nuovo
Pignone, SpA, 310 F.3d 378 citing Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 472 (1985). General personal
jurisdiction exists when the defendant has engaged in
continuous and systematic activities in the forum state,
regardless of whether such activity is related to the
plaintiff's cause of action. Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 415 (1984).
a nonresident defendant has sufficient related or unrelated
minimum contacts with the forum, we must then consider
whether the ‘fairness' prong of the jurisdictional
inquiry is satisfied.” Wilson v. Belin, 20
F.3d 644, 647 (5th Cir. 1994). The fairness inquiry is
determined by analyzing several factors: (1) the burden upon
the nonresident defendant of litigating in the forum state;
(2) the interests of the forum state; (3) the plaintiff's
interest in securing relief; (4) the judicial system's
interest in obtaining an efficient resolution of
controversies; and (5) the shared interest of the states in
furthering fundamental substantive social policies.
Bullion v. Gillespie, 895 F.2d 213, 216 n.5 (5th
Plaintiffs have not filed an opposition, the Court may not
simply grant the motion as unopposed. The Fifth Circuit has
stated, “[F]ailure to oppose a 12(b)(6) motion is not
in itself grounds for granting the motion. Rather, a court
assesses the legal sufficiency of the complaint.”
See, e.g., Servicios Azucareros de Venezuela, CA. v. John
Deere Thibodeaux, Inc., 702 F.3d 794, 806 (5th Cir.
their Original Petition, Plaintiffs make the conclusory
allegation that L&L is a foreign insurer authorized to do
and doing business in Louisiana. R. 1-1. “The
court is not obligated to credit conclusory allegations, even
if uncontroverted.” Lansing Trade Grp., LLC v. 3B
Biofuels GmbH & Co., KG, 612 F.Supp.2d 813, 819
(S.D. Tex. 2009). The affidavit of Leon filed into the record
by L&L provides that L&L never provided any insurance
coverage to any of the defendants and never had contact of
any kind with the state of Louisiana. Plaintiffs have
submitted no evidence to contradict this statement.
Accordingly, the Court finds that Plaintiffs have failed to
make out a prima facie case of personal jurisdiction with
regard to L&L.