Thomas v. Kennedy , 75 F. App'x 281 ( 2003 )

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Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.