United States District Court, E.D. Louisiana
ORDER AND REASONS
J. BARBIER, UNITED STATES DISTRICT JUDGE
the Court is a Motion to Dismiss Under Fed.R.Civ.P.
12(b)(2) or Forum Non Conveniens (Rec. Doc.
6) filed by Defendant, Basin Commerce, Inc.
Plaintiff, Celtic Marine Corporation, opposes the motion
(Rec. Doc. 8). Defendant filed a reply (Rec. Doc. 12), and
Plaintiff filed a sur-reply (Rec. Doc. 18). Having considered
the motion and legal memoranda, the record, and the
applicable law, the Court finds that the motion should be
AND PROCEDURAL HISTORY
litigation arises out of negotiations and agreements for
barges and barge transportation services to be provided by
Plaintiff, a Louisiana corporation, to ship distillers dry
grain for Defendant, a foreign corporation incorporated under
the laws of Minnesota. Beginning on April 26, 2018 following
the completion of barge transportation services pursuant to
Contract #0417, representatives of Plaintiff and Defendant
began discussing two additional barges to transport grain
from Minnesota to Louisiana. The record reflects that the
negotiations took place via text message and e-mail. After
confirming the booking of the two barges through text
message, Plaintiff's representative signed a contract
entitled “2018 Spot Service Agreement- Contract
#0422” on behalf of Plaintiff and sent the contract to
Defendant. Like Contract #0417, Contract #0422 includes a
provision concerning the applicable law (general maritime law
or, if unenforceable, Louisiana law) and a forum selection
clause providing that the federal courts of Louisiana have
exclusive jurisdiction over any disputes arising under, in
connection with, or incident to the agreement. Both contracts
also stipulate that the failure to immediately object to the
contract “is acknowledgment of the acceptance of the
terms and conditions contained [therein].” The record
reflects that Defendant did not sign or expressly object to
Contract #0417 or Contract #0422.
to its obligations under Contract #0422, Plaintiff
subsequently made arrangements with vendors to provide
services related to cargo. Despite the parties' agreement
regarding timing, the two barges had not been loaded by
mid-May 2018. Representatives of the parties discussed
cancellation, but Defendant rejected this option due to the
associated cancellation fees. Instead, the parties agreed
that one barge would be taken off placement and rolled over
to June and the other would remain on placement. Plaintiff
then sent Defendant an amendment to Contract #0422 on May 18,
2018, confirming this agreement. The amendment provided that
all other terms and conditions of the agreement remain as
originally agreed upon, and it included language indicating
that “[t]he confirmation without immediate notice
… is acknowledgment of the acceptance of the
conditions of the confirmation.” Defendant did not
inform Plaintiff of any objection to the amendment.
neither barge had been loaded by the end of June 2018,
Plaintiff requested payment from Defendant in the amount of
$45, 800.00 in demurrage and cancellation fees. On August 29,
2018, Plaintiff informed Defendant that it would file suit if
the matter was not resolved by noon on September 4, 2018.
Defendant failed to respond and instead filed a declaratory
action in the United States District Court for the District
of Minnesota. The same day, Plaintiff filed the instant
litigation in this Court for breach of contract and
12(b)(2) of the Federal Rules of Civil Procedure permits
dismissal of a suit for lack of personal jurisdiction. Where
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).
However, the plaintiff is not required to establish
jurisdiction by a preponderance of the evidence; a prima
facie showing is sufficient. Id. The court must
accept the plaintiff's uncontroverted allegations and
resolve all conflicts between the facts contained in the
parties' affidavits and other documentation in favor of
federal court sitting in diversity must satisfy two
requirements to exercise personal jurisdiction over a
nonresident defendant. Pervasive Software Inc. v. Lexware
GmbH & Co. Kg, 688 F.3d 214, 220 (5th Cir. 2012).
First, the forum state's long-arm statute must confer
personal jurisdiction. Second, the exercise of jurisdiction
must not exceed the boundaries of the Due Process Clause of
the Fourteenth Amendment. Id. (citing Mink v.
AAAA Dev. LLC, 190 F.3d 333, 335 (5th Cir. 1999)). The
limits of the Louisiana long-arm statute are coextensive with
constitutional due process limits. Jackson v. Tanfoglio
Giuseppe, SRL, 615 F.3d 579, 584 (5th Cir. 2010) (citing
Walk Haydel & Assocs. v. Coastal Power Prod.
Co., 517 F.3d 235, 242-43 (5th Cir. 2008)). Accordingly,
the inquiry is whether jurisdiction comports with federal
constitutional guarantees. Id.
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 certain
“minimum contacts” with the forum state
“such that the maintenance of the suit does not offend
traditional notions of fair play and substantial
justice.” Int'l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945) (internal quotations omitted).
Sufficient minimum contacts will give rise to either specific
or general jurisdiction. Goodyear Dunlop Tires
Operations, S.A. v. Brown, 131 S.Ct. 2846, 2851 (2011).
jurisdiction is limited to adjudication of “issues
deriving from, or connected with, the very controversy that
establishes jurisdiction.” Id. In order to
establish specific jurisdiction, a plaintiff must show that
“(1) there are sufficient (i.e., not ‘random
fortuitous or attenuated') pre-litigation connections
between the nonresident defendant and the forum; (2) the
connection has been purposefully established by the
defendant; and (3) the plaintiff's cause of action arises
out of or is related to the defendant's forum
contacts.” Pervasive Software, 688 F.3d at
221; accord Burger King Corp. v. Rudzewicz, 471 U.S.
462, 474-76 (1985). The defendant can then defeat the
exercise of specific jurisdiction by showing that it would be
unreasonable. Burger King, 471 U.S. at 476-77;
Pervasive Software, 688 F.3d at 221-22.
jurisdiction, however, does not require a showing of contacts
out of which the cause of action arose. Goodyear,
131 S.Ct. at 2851. A court may assert general jurisdiction
over foreign defendants “to hear any and all claims
against them.” Id. The proper consideration
when determining whether general jurisdiction exists is
whether the defendant's “affiliations with the
State are so ‘continuous and systematic' as to
render [it] essentially at home in the forum State.”
Daimler AG v. Bauman, 134 S.Ct. 746, 761 (2014)
(alteration in original) (quoting Goodyear, 131
S.Ct. at 2851).