Simmons v. SeaTide Intern., Inc.

• Decision Date: 07 September 1988
• Docket Number: Civ. A. No. 87-3551.
• Citation: 693 F. Supp. 510
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: Obey SIMMONS, Sr. & Priscilla Sue Simmons v. SEATIDE INTERNATIONAL, INC.

693 F. Supp. 510

Obey SIMMONS, Sr. & Priscilla Sue Simmons v. SEATIDE INTERNATIONAL, INC.

Civ. A. No. 87-3551.

United States District Court, E.D. Louisiana.

September 7, 1988.

Harold M. Wheelahan, III, Ungar & Wheelahan, New Orleans, La., for plaintiffs.

Richard O. Kingrea, Gelpi, Sullivan, Carroll & Laborde, New Orleans, La., for Sea-Tide Intern., Inc.

J. Clayton Davie, Jr., Johnson & McAlpine, New Orleans, La., for third-party defendant Jay Bludworth, Inc.

Order and Reasons

CHARLES SCHWARTZ, Jr., District Judge.

This matter came before the Court on June 22, 1988 for hearing on motion of third-party defendant Jay Bludworth, Inc. to dismiss for lack of personal jurisdiction and for improper venue. Defendant/third-party plaintiff, SeaTide International, Inc., has opposed the motion; plaintiffs, Obey Simmons Sr. and Priscilla Sue Simmons, have not. For the following reasons, the Court now GRANTS the motion.

I.

A.

Obey Simmons was an alleged crewmember on a vessel owned and operated by his employer, SeaTide International, Inc. On April 20, 1987, Mr. Simmons allegedly injured his back by slipping on hydraulic fluid on the deck of the vessel, while the vessel was being repaired by Jay Bludworth, Inc. at Bludworth's facility, which is near Corpus Christi, Texas.

Asserting claims of Jones Act negligence and general maritime unseaworthiness, Mr. Simmons and his wife, Priscilla Sue Simmons, filed suit in this Court on July 20, 1987 against SeaTide. Plaintiffs have explicitly denominated their claims as ones being brought under F.R.Civ.P. 9(h).¹

According to their complaint, Mr. and Mrs. Simmons are both residents of Mississippi. While the record does not reveal SeaTide's principal place of business, SeaTide states that it is incorporated under Louisiana law; SeaTide has filed in this district for protection under Chapter 11 of the Bankruptcy Code.²

On February 2, 1988, the Magistrate granted SeaTide leave to file a third-party complaint under F.R.Civ.P. 14(a) and 14(c) against Bludworth. Asserting that Bludworth is answerable for plaintiffs' claims against SeaTide, SeaTide seeks indemnity and/or contribution and a defense from Bludworth.

Bludworth then moved to dismiss the third-party complaint against it on the ground that this Court lacks personal jurisdiction over it. When the motion first came before the Court for hearing, the Court granted the request by SeaTide to postpone consideration of the motion until after SeaTide had an opportunity to take discovery from Bludworth on this single issue.³ After this discovery was completed, the Court heard oral argument on the motion and took the motion under submission.

B.

According to the uncontradicted affidavit and deposition by Bludworth's president,⁴ the following are facts: Bludworth was incorporated under Texas law around 1980 and has its only place of business in Texas. Bludworth has no corporate or partnership subsidiaries or affiliates. Bludworth's president owns 90% of the Bludworth stock, and his son owns the remaining 10%; neither person has ever lived in Louisiana.

The deposition further reveals the following: Bludworth's business consists solely of operating a ship repair facility on the Corpus Christi Ship Channel in Nueces County, Texas. Bludworth has no offices or facilities other than this one. All of Bludworth's work is done exclusively at this facility, and the agreements for repair work, which are usually oral, are negotiated at this facility. All of Bludworth's records, files, correspondence, and other documents relevant to its operations are kept at this facility. Bludworth has never advertised in any newspaper, trade journal, or other publication, except for a single ad it once placed in 1982 in a local journal, The Port of Corpus Christi. Further, it has never hired or maintained any marketing entity to market or advertise Bludworth to ship companies; instead, it obtains business by word of mouth.

The deposition also reveals the follows: Bludworth does not and has never maintained an agent, office, telephone number, or bank account in Louisiana, nor is it or has it ever been authorized to do or been doing business in Louisiana. Nor has it ever sent any crews into Louisiana to do any work of any kind. Further, it has no movable or immovable property, funds, or other assets of any nature in Louisiana and has never invested money in Louisiana. Nor has it ever lent any assets to anyone in Louisiana. Bludworth has no legal interest in any entity incorporated in, qualified to do business in, or doing business in Louisiana.

SeaTide's discovery efforts reveal the following additional facts, which show perhaps relevant contacts with Louisiana:

(1) A former Bludworth foreman made a single trip to Morgan City, Louisiana in 1983 to "call on the customers that Bludworth knew of, or prospective customers." Dep. at 17:11-:12. He was, however, not authorized to enter into any contracts on behalf of Bludworth. Dep. at 58:24-59:8. Whether the trip helped Bludworth's business, Bludworth's president did not know. Dep. at 25:19-:20.

(2) Bludworth's phone bills since 1986 show a few hundred calls to numbers throughout southern Louisiana.⁵ In his deposition, Bludworth's president explained that many of these calls were personal calls (for example, calls by him to his daughter in New Orleans or calls by vessel crew members calling home in Louisiana) or otherwise "non-Bludworth" calls (for example, calls by customers to their offices in Louisiana). Dep. at 50:1-:14. He estimated, however, that Bludworth itself would make a business call into Louisiana about once every two-to-three weeks; the purposes of these business calls would vary. Dep. at 50:19-51:5. Some of these calls were "possibly" for ordering marine hardware. Dep. at 51:6-:9. It is "possible" that Bludworth's president made telephone solicitations at times, but he could not recall ever having made any. Dep. at 51:10-52:16.

(3) According to an unsigned, 3-page list prepared on Bludworth stationery, Bludworth has entered into contracts with or performed work for 56 "Louisiana based companies." This list, however, give no dates or other descriptions of any kind and does not otherwise explain any aspect of Bludworth's relationship with any of these companies.

(4) Sixteen invoices totalling just over $105,000 and dating from February 3, 1983 to May 19, 1988 have been sent by Bludworth to various companies with Louisiana mailing addresses.⁶See SeaTide's Supplemental Opposition to Bludworth's Motion, Exh. C. Among these is one for $1,337.26 and dated May 22, 1984; typed on the invoice is the following: "To prepare vessel for towing from Corpus Christi, Texas to Lockport, La. as instructed by owner."⁷See id. (Invoice No. 1496).

(5) Six invoices totalling $6,628.21 and dating from August 9, 1984 to April 27, 1987 show that Bludworth has bought certain supplies from companies with Louisiana addresses.⁸ See id., Exh. E. Three additional invoices totalling $1,863.50 and dating from May 31, 1984 to October 15, 1987 show that three Louisiana companies have furnished labor and services to Bludworth.⁹ See id.

II.

If a nonresident defendant protests the exercise of personal jurisdiction, the burden falls on its opponent to make a prima facie showing that personal jurisdiction exists. E.g., Rittenhouse v. Mabry, 832 F.2d 1380, 1382 (5th Cir.1987). The issue, then, is whether SeaTide has made a sufficient showing to necessitate an evidentiary hearing.

A federal court may exercise personal jurisdiction over a nonresident defendant only if (absent a controlling federal statute of which there is none here) state law confers such jurisdiction and only if the exercise of such jurisdiction comports with due process under the Constitution. See Interfirst Bank Clifton v. Fernandez, 844 F.2d 279, 282 (5th Cir.1988), amended on other grounds on denial of reh'g, 853 F.2d 292 (5th Cir.1988). Notwithstanding the admiralty setting, the due process standard of the Fourteenth Amendment applies in this case. Bayou Steel Corp. v. M/V AMSTELVOORN, 809 F.2d 1147, 1150 (5th Cir.1987) (citing Point Landing, Inc. v. Omni Capital International, Ltd., 795 F.2d 415 (5th Cir.1986) (en banc), aff'd sub nom. Omni Capital International v. Rudolf Wolff & Co., ___ U.S. ___, 108 U.S. 404, 98 L.Ed.2d 415 (1987)); see also Petroleum Helicopters, Inc. v. Avco Corp. (Petroleum I), 804 F.2d 1367, 1369-71 (5th Cir.1986) (applying in this admiralty matter the same constitutional tests for asserting personal jurisdiction that are generally applied to state courts and to federal diversity cases).

Because the Louisiana long-arm statute as amended last year, see La.Acts 1987, No. 418, amending La. RSA § 13:3201 (eff. Sept. 1, 1987), extends to the limits of due process, Petroleum Helicopters, Inc. v. Avco Corp. (Petroleum II), 834 F.2d 510, 514 (5th Cir.1987) (opinion of La.Sup.Ct. on certified question from the 5th Cir.), and applies equally to causes of action accruing before the effective date of the amendment, id. at 511 (per curiam op. of 5th Cir.), 514-15 (op. of La.Sup.Ct.), this Court need only consider whether personal jurisdiction over Bludworth satisfies federal constitutional requirements. Interfirst Bank, 844 F.2d at 282; see also Bearry v. Beech Aircraft Corp., 818 F.2d 370, 372 (5th Cir. 1987).

The Supreme Court's progeny of International Shoe¹⁰ has divided this inquiry into two parts: whether the defendant purposefully established "minimum contacts" with the forum state and, if so, whether the exercise of jurisdiction results in "fair play and substantial justice."¹¹Interfirst Bank, 844 F.2d at 282.

Courts continue to struggle with developing a coherent, usable standard for adjudicating whether a court may properly exert personal jurisdiction over a defendant. At the base of this effort are two dissimilar conceptions of personal jurisdiction: one based on the sovereignty and power of states, and one based on the burdens...