United States District Court, W.D. Louisiana, Lake Charles Division
MATHESON TRI-GAS, INC.
WILLIAMSON GENERAL CONTRACTORS, INC.
REPORT AND RECOMMENDATION
KATHLEEN KAY JUDGE
the court is a re-urged Motion to Dismiss [doc. 72] filed
pursuant to Rule 12(b)(2) of the Federal Rules of Civil
Procedure by Taiyo Nippon Sanso Corporation
(“TNSC”) and relating to the claims raised
against it in defendant Williamson General Contractors,
Inc.'s (“Williamson”) First Supplemental and
Amended Counterclaim (“amended counterclaim”)
[doc. 24]. The matter has been referred to the undersigned
for review, report, and recommendation in accordance with the
provisions of 28 U.S.C. § 636.
matter began as a breach of contract suit relating to the
building of plaintiff Matheson Tri-Gas, Inc.'s
(“Matheson”) Pelican Phase 1 plant
(“Pelican project”) in Westlake, Louisiana. Doc.
1. In its original complaint, filed in this court on
September 15, 2016, Matheson alleged that it had accepted
Williamson's bid to build the facility for an agreed-upon
lump sum price of over $15.8 million in May 2015, that the
parties also entered into a change order agreement in
February 2016 through which Matheson agreed to pay Williamson
an additional $3.4 million for various design changes, and
that they further agreed that subsequent change orders would
be charged to Matheson on a cost plus basis. Id. at
2-3. Matheson maintained that it paid Williamson all sums due
and owing under their agreement, totaling over $19.7 million,
but that Williamson continued to demand “additional
unreasonable sums” to complete the facility and then
abandoned the project on or about June 30, 2016, in breach of
the parties' agreement. Id. at 3. As a result,
Matheson asserted, several of Williamson's subcontractors
have filed or threatened to file liens against the facility
to recover sums that they allege they are owed by Williamson.
Id. at 3-4. Accordingly, Matheson brought this suit
seeking damages incurred from Williamson's alleged
breaches and subrogation to the rights of any subcontractors
it must satisfy because of their liens against Matheson's
property based on Williamson's alleged failure to satisfy
its obligations. Id. at 4-5.
November 2016, Williamson filed counterclaims against
Matheson for breach of contract, bad faith breach of
contract, and detrimental reliance. Doc. 6, pp. 8-13.
Williamson amended its counterclaim in August 2017 to add
claims of fraud/fraudulent inducement, cardinal change, open
account, unjust enrichment, quantum meruit, and negligence.
Doc. 24. In the amended counterclaim it also added TNSC,
parent company of Matheson, as defendant. Id. at 1.
TNSC, a Japanese corporation, appeared for the limited
purpose of filing a motion to dismiss all claims against it
for lack of personal jurisdiction. Doc. 41. The court granted
jurisdictional discovery and denied the motion, subject to
TNSC's right to reurge the motion after the completion of
discovery. Docs. 48, 60. TNSC now reurges its motion. Doc.
72. The motion has been fully briefed, with opposition from
Williamson, and is now ripe for review.
Rule 12(b)(2) Standard
seeking to invoke the power of the court bears the burden of
proving that jurisdiction exists, and so the plaintiff
carries the burden on the defendant's challenge to
personal jurisdiction. Luv N' Care, Ltd. v.
Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006)
(citing Wyatt v. Kaplan, 686 F.2d 276, 280 (5th Cir.
1982)). When the court rules on the motion without an
evidentiary hearing, the plaintiff is only required to make a
prima facie showing and the court must resolve all undisputed
facts submitted by the plaintiff, as well as all contested
issues of fact, in favor of jurisdiction. Id.;
WNS, Inc. v. Farrow, 884 F.2d 200, 203 (5th Cir.
1989). However, the court is not required to credit
conclusory allegations. Panda Brandywine Corp. v. Potomac
Elec. Power Co., 253 F.3d 865, 869 (5th Cir. 2001).
resolving the motion the court may review pleadings,
affidavits, interrogatories, depositions, oral testimony,
exhibits, any part of the record, and any combination
thereof. Command-Aire Corp. v. Ontario Mech. Sales &
Serv., Inc., 963 F.2d 90, 95 (5th Cir. 1992). The
plaintiff ordinarily need only make out a prima facie case
for personal jurisdiction, but must meet a higher
“preponderance of the evidence” standard if the
court conducts an evidentiary hearing. Walk Haydel &
Assoc., Inc. v. Coastal Power Prod. Co., 517 F.3d 235,
241 (5th Cir. 2008).
preconditions must be satisfied before this court will assert
personal jurisdiction: (1) the defendant must be amenable to
service under the forum state's long-arm statute, and (2)
the assertion of jurisdiction must comport with the Due
Process Clause of the Fourteenth Amendment. Jones v.
Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061,
1067 (5th Cir. 1992). The Louisiana long-arm statute is
coextensive with the limits of due process. E.g.,
Laird v. Deep Marine Technology, Inc., 2004 WL
2984282, *1 (E.D. La. Dec. 7, 2004). Therefore the
requirements are combined for the purpose of this analysis.
Id. For personal jurisdiction to comport with due
process, the plaintiff must show that (1) the defendant
purposefully availed itself of the benefits and protections
of the forum state by establishing “minimum
contacts” with that state; and (2) exercising
jurisdiction over the defendant would not offend traditional
notions of fair play and substantial justice. Jones,
954 F.2d at 1068.
emphasizes, “a foreign parent corporation is not
subject to the jurisdiction of a forum state merely because
its subsidiary is presently doing business there.”
Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1159
(5th Cir. 1983). “[S]o long as a parent and subsidiary
maintain separate and distinct corporate entities, the
presence of one in a forum state may not be attributed to the
other.” Id. Williamson maintains that it is
not relying on the parent-subsidiary relationship between
TNSC and Matheson, and that the court can exercise ...