CEH Energy, L.L.C. v. Intrepid Drilling, L. , 691 F. App'x 215 ( 2017 )

Case: 16-60659 Document: 00514048372 Page: 1 Date Filed: 06/26/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 26, 2017
No. 16-60659
Lyle W. Cayce
Clerk
CEH ENERGY, L.L.C.; SHENZHEN CAREALL INVESTMENT HOLDINGS
GROUP COMPANY, LIMITED,
Plaintiffs - Appellants
v.
KEAN MILLER, L.L.P.; STEPHEN HANEMANN,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:15-CV-154
Before STEWART, Chief Judge, and WIENER and PRADO, Circuit Judges.
PER CURIAM:*
This action arose from the purchase of an interest in a prospective oil
and gas well (the “Williams Well”) by Plaintiffs-Appellants CEH Energy, LLC
(“CEH”) and Shenzhen Careall Investment Holdings Group Co., Ltd.
(“Careall”) from Intrepid Drilling, LLC (“Intrepid”). Following their due
diligence investigation of the Williams Well prospect, appellants retained
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-60659
Defendant-Appellee Stephen Hanemann, an attorney at the Louisiana law
firm of Defendant-Appellee Kean Miller, L.L.P. (“Kean Miller”), to represent
them in the execution of a Participation Agreement. After the Williams Well
proved unsuccessful, appellants sued appellees and others in federal court in
Mississippi, claiming, inter alia, that appellees had committed various torts
and violated various state and federal securities laws during this
representation. According to appellants, they did not know that appellees also
represented Intrepid and its owner, William Simmons, III (collectively the
“Simmons defendants”).
CEH is a Delaware limited liability company and a United States
subsidiary of Carreall, a Chinese investment company. Hanemann is a
Louisiana resident, and Kean Miller is a Louisiana limited liability
partnership. Simmons is a Mississippi resident, and Intrepid is a Mississippi
limited liability company. The district court dismissed appellants’ claims
against appellees for lack of personal jurisdiction.
We review de novo a district court’s dismissal for lack of personal
jurisdiction under Rule 12(b)(2), 1 and we review a district court’s factual
findings for clear error. 2 “[P]laintiff bears the burden of establishing a district
court’s jurisdiction over a non-resident, but it need only make a prima facie
case if the district court rules without an evidentiary hearing.” 3
1 Allred v. Moore & Peterson, 117 F.3d 278, 281 (5th Cir. 1997).
2 Irvin v. S. Snow Mfg., Inc., 517 F. App’x 229, 230 (5th Cir. 2013).
3 Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 609 (5th Cir. 2008) (citing
Wilson v. Belin, 20 F.3d 644, 648 (5th Cir. 1994)).
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No. 16-60659
I.
STATE LAW CLAIMS
For non-federal claims, a federal court must determine whether both
state law and the Due Process Clause of the Fourteenth Amendment permit
the exercise of personal jurisdiction over a non-resident defendant. 4 Appellants
assert jurisdiction under the tort prong of the Mississippi long-arm statute,
which confers jurisdiction over a non-resident defendant who “commits a tort
in whole or in part in Mississippi.” 5
Appellants contend that appellees’ representation of the Simmons
defendants provides the necessary tort nexus with Mississippi. Appellants
wholly fail, however, to allege that appellees committed any tort, in whole or
in part, in Mississippi. All acts alleged to give rise to appellants’ claims took
place in Louisiana. Appellants have not shown that the district court may
exercise personal jurisdiction over appellees as to appellants’ state law claims
on the basis of the tort prong of the Mississippi long-arm statute.
II.
FEDERAL LAW CLAIMS
Appellants also allege violations of the Securities Exchange Act, which
would provide for the district court’s exercise of personal jurisdiction over
appellees. 6 All of the parties agreed, and the district court stated, that when
federal claims are asserted against a non-resident defendant “the relevant
inquiry is whether the defendant has had minimum contacts with the United
4 Smith v. DeWalt Prods. Corp., 743 F.2d 277, 278 (5th Cir. 1984).
5 Walker v. World Ins. Co., 289 F. Supp. 2d 786, 788 (S.D. Miss. 2003); MISS. CODE
ANN. § 13-3-57.
6 15 U.S.C. § 78aa(a).
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States.” 7 Inexplicably, however, the district court dismissed appellants’ federal
securities claims for what it stated was lack of personal jurisdiction by holding
that appellants had “failed to allege sufficient facts to demonstrate loss
causation, and their 10b-5 claim against [appellees] fails.” Even though the
court did not analyze appellants’ federal claims on the basis of the applicable
standard for ruling on a motion to dismiss for lack of personal jurisdiction, “we
may affirm for reasons other than those relied upon by the district court.” 8 The
instant record confirms beyond cavil that appellants failed to plead facts
sufficient to state a claim under federal securities laws because they did not
bear their burden of alleging loss causation. 9 Thus, the district court did not
err in dismissing appellants’ federal securities claims.
III.
CONCLUSION
We affirm the judgment of the district court based on our review of the
briefs, the record, the applicable law, and the oral arguments of counsel.
AFFIRMED.
7 Busch v. Buchman, Buchman & O’Brien, Law Firm, 11 F.3d 1255, 1258 (5th Cir.
1994).
LLEH v. Wichita Cty., 289 F.3d 358, 364 (5th Cir. 2002) (citations omitted). On
8
appeal, appellants did not raise the district court’s failure to apply the correct standard for
determining a motion to dismiss for lack of personal jurisdiction. “This Court has repeatedly
stated that the brief of the appellant is required to contain a statement of the issues presented
for review and an argument portion which analyzes and supports those contentions.
Consequently, issues not raised or argued in the brief are considered waived and thus will
not be noticed or entertained by this Court on appeal.” Melton v. Teachers Ins. & Annuity
Ass’n of Am., 114 F.3d 557, 561 (5th Cir. 1997).
9 See Robbins v. Koger Props., 116 F.3d 1441, 1447 (11th Cir. 1997).
4