United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE.
ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE.
the Court are Motions to Dismiss by Defendants Hirant
Manakyan, Herman Manakyan, Fusion Sports, S
A.R.L. ("Fusion") (collectively,
"FusionDefendants"), and Pascal Levy
("Levy"). [Record Documents 7 and 11]. Plaintiff
Gary Ebert ("Ebert"), appearing pro se, has filed
an opposition, and the Fusion Defendants have filed a reply.
[Record Documents 13, 15, and 18]. Levy, appearing pro se,
the Fusion Defendants, and Ebert have separately filed
affidavits in response to the Court's request for
additional information to clarify Defendants'
relationships in order to determine whether the Court may
properly exercise personal jurisdiction. [Record Documents
29-31]. The Fusion Defendants have objected to Ebert's
affidavit. [Record Document 32]. Having considered the
foregoing as well as the remainder of the record, the Court
GRANTS the motions to dismiss. The pending
motion to disqualify counsel filed by Ebert [Record Document
13] is DENIED AS MOOT.
is an international basketball agent living in Louisiana who
represented players Mike Smith ("Smith"), Brandon
Spann ("Spann"), and Ryan Moss ("Moss")
(collectively, "the Players"), [Record Document 31
at 2]. In 2005, Ebert and Levy, a French citizen living in
France, entered into an oral agreement ("2005
Agreement") whereby Levy would assist Ebert in placing
the Players on French basketball teams in exchange for a
share of the agency fees. [Record Documents 1-13 at 6, 30 at
1, 31 at 1-2]. Following the Players' placement on teams,
Levy allegedly failed to pay Ebert's share of certain
fees and failed to diligently collect others. [Record
Document 1-13 at 6-7]. Beginning in 2006, Ebert repeatedly
demanded that Levy comply with his obligations. [Record
Documents 1-13 at 7 and 31 at 3]. In 2012, Levy became an
employee and partial owner of Fusion, a French sports
management company founded by Hirant Manakyan, a French
resident and citizen. [Record Documents 1 -6 at 12 and 29-1
at 3-4]. Herman Manakyan, a Maryland resident and United
States citizen, originally worked as a consultant for Fusion,
but has since become a partial owner. [Record Document 29-1
at 5-6]. Ebert alleges that the Fusion Defendants
share Levy's liability as a result of his association
with the company. [Record Document 1-13 at 7].
filed an "Original Petition for Damages" in the
26th Judicial District Court of Louisiana against
"Pascal Levy, Individually, and d/b/a 5A's and
Fusion Sport, " alleging breach of contract, conversion,
tort fraud, and breach of fiduciary duty. [Record Document 1
-2]. Ebert prayed for $ 11, 134.99 plus interest, attorney
fees, and "general damages for defendants' fraud and
[b]reach of fiduciary duty." [ Id. at 10-11].
Although maintaining that it had not been properly named as a
defendant, Fusion filed exceptions of lack of personal
jurisdiction, insufficient citation and service of process,
no cause of action, and prescription. [Record Document 1-6].
At a show cause hearing, the state court denied the
exceptions of insufficient citation and service of process
and granted the exception of a lack of personal jurisdiction,
giving Ebert fifteen days to amend his petition. [Record
Document 1 at 2]. The court also entered a preliminary
default against Levy. [Record Document 9-1 at
also amended his petition, naming Levy, Herman Manakyan,
Hirant Manakyan, and Fusion as defendants, adding claims
under the federal Racketeer Influenced and Corrupt
Organizations Act ("RICO"), 18 U.S.C.A §§
1961-1968 (West 2015 & Supp. 2017), and its Louisiana
equivalent, La. Stat. Ann. §§ 15:1351-1356 (2015
& Supp. 2018), and increasing his monetary demand to $2,
225, 881.99 and "actual damages in an amount to be
proven at trial, plus treble damages, attorneys' fees,
interest, and costs, " [Record Document 1-13 at 2, 11,
14]. In response, the Fusion Defendants filed a notice of
removal. [Record Document 1], Ebert then filed a demand for
jury trial, the transcript from the show cause hearing, and
the state court order setting a hearing on the default
judgment. [Record Documents 6 and 9]. The Fusion Defendants
again moved to dismiss for lack of personal jurisdiction, for
failure to state a claim on which relief can be granted, and
for insufficient process and service of process. [Record
Document 7]. Levy filed an answer incorporating what the
Court construes as a motion to dismiss on grounds of
prescription, lack of personal jurisdiction, and insufficient
service of process. [Record Document 11]. Ebert opposed
Levy's motion to dismiss, moved to disqualify the Fusion
Defendants' counsel, and moved for additional time to
replead. [Record Documents 13 and 18]. The Court denied the
motion for additional time and ordered Ebert to file a Civil
RICO case statement. [Record Document 16]. Ebert filed his
statement, which names as defendants Levy, the Fusion
Defendants, and "Cook Yancey King and Galloway
APLC." [Record Document 22]Confronted with insufficient
information to accurately assess its personal jurisdiction,
the Court ordered the parties to submit affidavits or other
authenticated evidence addressed to jurisdictional matters.
[Record Document 24]. The parties have complied. [Record
there are substantial disagreements about the facts of the
case, the Court will outline Ebert's allegations in
detail. According to Ebert, he and Levy were to share any
agency fees earned on contracts between the Players and their
French basketball teams. [Record Document 1-13 at 6],
Although Levy made a partial payment of Ebert's share of
the agency fees for Moss in March or April 2006, [Record
Document 31 at 2], it is unclear from the record whether Levy
made any payments in relation to Smith or Spann.
Additionally, Ebert alleges that Smith's club incurred
"mandatory 7% monthly late fees" that Levy failed
to collect. [Record Document 1 -13 at 6]. On June 1, 2006,
Ebert sent Levy an invoice, following up on June 27, 2006
with an offer to compromise the matter. [Id. at
to Ebert, in 2005 Levy was "doing business as" 5
A's ("5 A's"); subsequently, he and the
Manakyans formed Fusion to "take over the representation
activities of 5A's." [Id. at 2-3, 7]. Levy
then allegedly used money that he should have paid to Ebert
under the 2005 Agreement to travel and recruit basketball
players for himself and Fusion. [ Id. at 12]. Ebert
seeks not only the amount that he was owed under the 2005
Agreement, but also "any profits realized by Defendants
through the use of Plaintiff s funds in any other business
ventures." [Id. at 14].
also alleges that Defendants violated RICO via
"fraudulent inducement by Defendants of Plaintiff to use
Plaintiffs resources and subornation or purjury [sic], and
the related fraudulent conversion of Plaintiff s converted
funds." [ Id. at 11]. Effectively, Ebert
alleges that Levy breached the 2005 Agreement in concert with
the Fusion Defendants through the use of interstate mail or
wire communications. [Id. at 10-11 ]. In his RICO
case statement, Ebert expands his allegations to include the
participation of a variety of attorneys, including counsel
for the Fusion Defendants and counsel who represented Ebert
in other cases; he alleges that these attorneys conspired to
"self-deal, " engage in conflicting interest
representations, and file false pleadings and other
documents. [Record Document 22].
Law and Analysis
12(b)(2) of the Federal Rules of Civil Procedure authorizes a
motion to dismiss for lack of personal jurisdiction. At
trial, a plaintiff must prove personal jurisdiction over each
defendant by a preponderance of the evidence. In re
Chinese Manufactured Drywall Prods. Liab. Litig., 742
F.3d 576, 584-85 (5th Cir. 2014) (citing Caldwell v.
Palmetto State Sav. Bank of S.C, 811 F.2d 916, 917 (5th
Cir. 1987)). However, to survive a motion to dismiss, a
plaintiff need only establish a prima facie case. Walk
Haydel &Assocs., Inc. v. Coastal Power Prod. Co.,
517 F.3d 235, 241 (5th Cir. 2008) (citing Irving v.
Owens-Corning Fiberglas Corp., 864 F.2d 383, 384 (5th
Cir. 1989); Thompson v. Chrysler Motors Corp., 755
F.2d 1162, 1165 (5th Cir. 1985)). Although a court must
accept a plaintiff s uncontroverted jurisdictional
allegations as true, it need not "credit conclusory
allegations, even if uncontroverted." Panda
Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d
865, 869 (5th Cir. 2001) (citing Felch v. Transposes
Lar-Mex SA DE CV, 92 F.3d 320, 326 n.16 (5th Cir. 1996);
Mass. Sch. of Law at Andover, Inc. v. Am.
BarAss'n, 142 F.3d 26, 34 (1st Cir. 1998)).
Moreover, a court may accept affidavits or other recognized
forms of discovery to clarify a difficult question of
jurisdiction. Allred v. Moore & Peterson, 117
F.3d 278, 281 (5th Cir. 1997) (citing Stuart v.
Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985)). If a
defendant's affidavit contradicts any of the plaintiff s
jurisdictional allegations, a court evaluates whether the
plaintiff has stated a prima facie case by examining her
"nonconclusory allegations supported by admissible
evidence." Sealed Appellant 1 v. Sealed Appellee
1, 625 Fed.Appx. 628, 631 (5th Cir. 2015) (per curiam).
Applying this standard, Ebert has the burden of stating a
prima facie case. Because Defendants' evidence
contradicts some of Ebert's allegations, the Court must
evaluate his prima facie case on the basis of his
nonconclusory and supported allegations.
Law of Personal Jurisdiction
Court may exercise personal jurisdiction to the same extent
as a Louisiana court. Walk Hay del, 517 F.3d at 242
(citing Access Telecomm., Inc. v. MCI Telecomm.
Corp., 197 F.3d 694, 716 (5th Cir. 1999)).
Louisiana's long-arm statute authorizes personal
jurisdiction to the maximum extent allowed by the Due Process
Clause. Id. at 242-43 (citing A & L Energy,
Inc. v. Pegasus Grp., 2000-3255, p. 4 (La. 6/29/01); 791
So.2d 1266, 1270)). Therefore, the questions before the Court
with regard to each defendant are "(1) [whether] that
defendant has purposefully availed himself of the benefits
and protections of the forum state by establishing
'minimum contacts' with the forum state; and (2)
[whether] the exercise of jurisdiction over that defendant..
. offend[s] 'traditional notions of fair play and
substantial justice.'" Mink v. AAAA Dev.
LLC, 190 F, 3d 333, 335 (5th Cir. 1999) (quoting
Latshaw v. Johnson, 167 F.3d 208, 211 (5th Cir.
1999)). The potential burdens of litigation render "the
minimum contacts analysis . .. particularly important when
the defendant is from a different country." Special
Indus., Inc. v. Zamil Grp. Holding Co., 578 Fed.Appx.
325, 328 (5th Cir. 2014) (per curiam) (quoting BMC
Software Belg., N. V. v. Marchand, 83 S.W.3d 789, 795
contacts" may give rise to either general personal
jurisdiction or specific personal jurisdiction. Choice
Healthcare, Inc. v. Kaiser Found. Health Plan of Colo.,
615 F.3d 364, 368 (5th Cir. 2010). General personal
jurisdiction empowers a court to hear "any and all
claims" against a defendant whose contacts with the
forum state are "continuous and systematic" such
that the defendant is "at home" in the state.
Daimler AG v. Bauman, 134 S.Ct. 746, 751, 754 (2014)
(quoting Goodyear Dunlop Tires Operations, Inc., S.A. v.
Brown, 564 U.S. 915, 919 (2011)). For a natural person,
general personal jurisdiction exists in her state of
domicile. Milliken v. Meyer, 311 U.S. 457, 463-64
(1940). A defendant is also subject to suit on any matter
regardless of her contacts with the forum state when she is
personally served while physically present there. Burnham
v. Superior Court of Cal, Cty. of Marin, 495 U.S. 604,
628 (1990) (plurality opinion).
personal jurisdiction allows suit to proceed if the matter is
related to a defendant's contacts with the forum state.
Helicopteros Nacionales de Colom., S.A. v. Hall, 466
U.S. 408, 414 & n.8 (1984) (citing Shaffer v.
Heitner, 433 U.S. 186, 204 (1977)). To determine whether
a court may exercise specific jurisdiction, the Fifth Circuit
prescribes a three-step analysis: "(1) whether the
defendant has minimum contacts with the forum state; (2)
whether the plaintiffs cause of action arises out of or
results from the defendant's forum-related contacts; and
(3) whether the exercise of personal jurisdiction is fair and
reasonable." Jackson v. Tanfoglio Giuseppe,
S.R.L., 615 F.3d 579, 585 (5th Cir. 2010) (citing
Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d
266, 271 (5th Cir. 2006)). The contacts, while not as
substantial as those required for an exercise of general
jurisdiction, may not be merely "random, fortuitous, or
attenuated." Clemens v. McNamee, 615 F.3d 374,
379 (5th Cir. 2010) (citing Burger King v.
Rudzewicz, 471 U.S. 462, 472 (1985)). Although the
defendant's physical presence in the state is not
required, Burger King, 471 U.S. at 476, "merely
contracting with a resident of the forum state does not
establish minimum contacts, " Moncrief Oil Int'l
Inc. v. OAO Gazprom, 481 F.3d 309, 311 (5th Cir. 2007)
(citing Latshaw, 167 F.3d at 211; Hydrokinetics,
Inc. v. Alaska Meek, Inc., 700 F.2d 1026, 1028 (5th Cir.
1983)). If the plaintiff successfully establishes the first
two prongs, the burden shifts to the defendant to show that
litigation in the forum state would be "'so gravely
difficult and inconvenient' that a party unfairly is at a
'severe disadvantage' in comparison to [its]
opponent." Burger King, 471 U.S. at 478 (first
quoting M/S Bremen v. Zapata Off Shore Co., 407 U.S.
1, 18 (1972); then quoting McGee v. Int'l Life
Ins. Co., 355 U.S. 220, 223 (1957)).
Jurisdiction over the Fusion Defendants