Thomas v. Kennedy ( 2003 )


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  •                                                                                United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                          F I L E D
                                                                                        September 16, 2003
                               UNITED STATES COURT OF APPEALS
                                                                                      Charles R. Fulbruge III
                                        FOR THE FIFTH CIRCUIT                                 Clerk
                                       _________________________
    
                                              No. 03-30269
                                         SUMMARY CALENDAR
                                       _________________________
    
    FIRMEN THOMAS; ET AL
    
                          Plaintiffs
    FIRMEN THOMAS
    
                          Plaintiff - Appellant
                                                      v.
    
    JOHN KENNEDY; ET AL
                   Defendants
    
    MARINA ASSOCIATES, erroneously sued as Harrah’s Casino Atlantic City, doing business as
    Harrah’s Casino Hotel Atlantic City by Harrah’s Atlantic City, Inc.
    
                          Defendant - Appellee
    
    ______________________________________________________________________________
    
                     On Appeal from the United States District Court for the
                                 Eastern District of Louisiana
                                       (02-CV-3338-E)
    ______________________________________________________________________________
    
    Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
    
    PER CURIAM:1
    
           In this appeal, we review the district court’s decision to grant Defendant-Appellee’s Rule
    
    12(b)(6) Motion to Dismiss. For the following reasons, we affirm the district court’s decision.
    
           1
            Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
    published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
                                                      I.
    
                           FACTUAL AND PROCEDURAL BACKGROUND
    
           Plaintiff-Appellant, Firmen Thomas (hereinafter “Thomas”), alleges that during the month
    
    of September 1995, each of the seven casinos named as defendants reported to the United States
    
    Internal Revenue Service (hereinafter “IRS”) that Plaintiffs had gambled at their casinos and
    
    earned winnings. In September 1997, Plaintiffs were contacted by the IRS and assessed taxes,
    
    interest, and penalties on the reported winnings in the amount of $200,742.00. Plaintiffs claim
    
    that they never gambled at any of the casinos, and that the incorrect reporting of winnings to the
    
    IRS caused them damages.
    
           On September 13, 2002, Plaintiffs filed suit against Defendants in Louisiana State Court
    
    alleging negligence, intentional infliction of emotional distress, and negligent misrepresentation.
    
    The matter was removed to federal court by one of the defendant casinos, Caesar’s World, Inc.
    
    Defendant-Appellant, Marina Associates (hereinafter “Marina”), filed a motion to dismiss
    
    asserting that the court lacks personal jurisdiction over it. The district court granted their motion
    
    and this appeal followed.
    
                                                     II.
    
                                        STANDARD OF REVIEW
    
           Whether in personam jurisdiction can be exercised over a nonresident defendant is a
    
    question of law subject to de novo review by this court. Jackson v. FIE Corp., 
    302 F.3d 515
    , 521
    
    (5th Cir 2002).
    
                                                     III.
    
                                       PERSONAL JURISDICTION
    
            Because Louisiana’s Long-Arm Statute extends personal jurisdiction to the limits of due
    process, this court need only determine whether subjecting Marina to suit in Louisiana would
    
    offend the Due Process Clause of the Fourteenth Amendment. LSA-R.S. §13:3201; Fox v. Board
    
    of Supervisors of Louisiana State, 
    576 So. 2d 978
    , 983 (La. 1991). Personal jurisdiction may be
    
    asserted over a nonresident defendant only if that defendant has certain “minimum contacts” with
    
    the forum such that the maintenance of the suit does not offend “traditional notions of fair play
    
    and substantial justice.” International Shoe Co. v. Washington, 
    326 U.S. 310
    , 
    66 S. Ct. 154
    , 
    90 L. Ed. 95
     (1945). There are two categories of minimum contacts with a state that may subject a
    
    defendant to jurisdiction in that forum. A state has specific jurisdiction over a defendant when the
    
    suit arises out of or is related to the defendant’s contacts with the forum state. Helicopteros
    
    Nacionales de Columbis, S.A. v. Hall, 
    466 U.S. 408
    , 414 n.8, 
    104 S. Ct. 1868
    , 1872 n.8, 
    80 L. Ed. 2d 404
     (1984). A state has general jurisdiction over a defendant when the defendant has
    
    continuous and systematic contacts with the forum state. Perkins v. Benquet Consolidated
    
    Mining Co., 
    342 U.S. 437
    , 
    72 S. Ct. 413
     
    96 L. Ed. 485
     (1952). In the context of general
    
    jurisdiction, “minimum contacts” means that the defendant has purposely availed himself of the
    
    privilege of conducting activities within the forum state and should reasonably anticipate being
    
    hailed into court in the forum state. Dickson Marine, Inc. v. Panalpina, Inc., 
    179 F.3d 331
    , 336
    
    (5th Cir. 1999); Langley v. Oxford Chemicals, Inc., 
    634 So. 2d 950
     (La. App. 2 1994) citing
    
    Hanson v. Denckla, 
    357 U.S. 235
    , 
    78 S. Ct. 1228
    , 
    2 L. Ed. 2d 1283
     (1958). Personal jurisdiction
    
    may be exercised over a defendant even when the suit does not arise out of the defendant’s
    
    contacts with the forum state. Helicopteros, 466 U.S. at 415 n.9, 104 S.Ct. At 1872 n.9.
    
           When a defendant alleges that the court does not have personal jurisdiction, a plaintiff
    
    need only make a prima facie showing of jurisdiction. Asarco, Inc. v. Glenara, Ltd., 
    912 F.2d 784
    , 785 (5th Cir. 1990). The allegations in the complaint are taken as true except as controverted
    by the defendant’s affidavit. Id. All conflicts are resolved in favor of the plaintiffs. Id.
    
            Thomas concedes that his cause of action is unrelated to Marina’s contacts with
    
    Louisiana. Thus, Marina is not subject to the court’s specific jurisdiction. Thus, we need only
    
    address whether the court has general jurisdiction over Marina.
    
            Marina provided the affidavit of Luther Anderson, Vice-President of Legal Affairs and
    
    Secretary of Harrah’s Atlantic City, Inc., the general partner of Marina Associates. Mr. Anderson
    
    testified that: 1) Marina Associates is a New Jersey general partnership with its principal place of
    
    business in Atlantic City, New Jersey; 2) Marina is the owner of Harrah’s Casino Hotel Atlantic
    
    City, which is located in Atlantic City, New Jersey; 3) Marina has never been licensed to conduct
    
    business in Louisiana; 4) Marina has never had any partners, employees or agents working or
    
    residing in Louisiana; 5) Marina has never had an office or agent for service of process in
    
    Louisiana; 6) Marina does not advertise or solicit business in Louisiana; and 7) Marina has no
    
    telephone number, business listing, or mailing address in Louisiana.
    
            Thomas does not controvert Mr. Anderson’s testimony regarding Marina’s lack of
    
    contacts in Louisiana. Instead, Thomas relies on Langley v. Oxford Chemicals, Inc., 
    634 So. 2d 950
     (La. App. 2 1994), to argue that Marina is subject to general jurisdiction in Louisiana due to
    
    its reckless accounting practices that caused injury to a Louisiana citizen. Thomas also argues
    
    that Marina purposely availed itself of the privilege of conducting business in Louisiana by falsely
    
    reporting gambling winnings to the IRS. Thomas alleges that Marina “erroneously and falsely
    
    claimed that the petitioners won some money at their casinos of which some tax liability was
    
    due.”
    
            Assuming Thomas’s version of the facts is correct, Marina’s contact with Louisiana is still
    
    coincidental. Thomas does not allege that Marina deliberately selected him, knowing that the
    Thomas was Louisiana resident, in order to falsely report gambling winnings to the IRS. Marina
    
    did not “purposely avail itself of the privilege of conducting business” in Louisiana. Without
    
    continuous and systematic contacts with the State of Louisiana, Marina cannot be subject to
    
    jurisdiction in the district court.
    
                                                     IV.
    
                                            REMAND ORDER
    
            This court does not have jurisdiction to review the district court’s order remanding the
    
    case to state court. The general rule is that orders granting remand “are not reviewable on appeal
    
    or otherwise.” 28 U.S.C. §1447(d). A remand for lack of subject matter jurisdiction under 28
    
    U.S.C. §1447(c) is barred from appellate review by 28 U.S.C. §1447(d). Arnold v. Garlock, Inc.,
    
    
    278 F.3d 426
    , 437 (5th Cir. 2001). While there are exceptions to the general rule against appellate
    
    review, remands based on either 1) a timely-raised procedural error or 2) any jurisdictional error
    
    may not be reviewed. Thermtron Products, Inc. v. Hermansdorfer, 
    96 S. Ct. 584
     (1976). As the
    
    district court’s remand order is based on lack of subject matter jurisdiction, the order is not
    
    reviewable on appeal.
    
                                                     IV.
    
                                              CONCLUSION
    
            For the foregoing reasons the judgment of the district court granting Marina’s Rule
    
    12(b)(6) Motion to Dismiss is affirmed.