Petroleum Helicopters, Inc. v. Avco Corporation

GARWOOD, Circuit Judge,

dissenting:

I respectfully dissent. I would affirm the decision below on the basis of Famham v. Bristow Helicopters, 776 F.2d 535 (5th Cir.1985). Because of the presence of the constitutional question, and because it appears to me that the considerations prompting the majority to certify this case to the Louisiana Supreme Court have been adequately resolved in Famham, I would not certify. As the majority implicitly recognizes, there are no post-Famham Louisiana decisions which would justify our departure from Famham. This circumstance might not be decisive against certification if Famham had overlooked some established line of Louisiana jurisprudence, or some arguably applicable Louisiana statute, or was simply egregiously wrong. But none of these things can be said about Famham.

The majority calls attention to Famham ’s reliance on Alba v. Riviere, 457 So.2d 33 (La.App. 4th Cir.), writ denied, 462 So.2d 194 (La.1984), and Robinson v. Vanguard Ins. Co., 468 So.2d 1360 (La. App. 1st Cir.), writ denied, 472 So.2d 924 (La.1985), for the requirement of a “direct nexus between the business transacted in Louisiana by the non-resident defendant and the plaintiff’s cause of action” based on the “arising from” language of the introductory portion of LSA-R.S. 13:3201. The majority contrasts this to general statements in several opinions of the Louisiana Supreme Court, such as the language in Adcock v. Surety Research & Investment Corp., 344 So.2d 969, 971 (La.1977), that section 3201 “was designed to allow the courts of this state to exercise the broadest basis of personal jurisdiction over nonresidents permissible under the fourteenth amendment.” The majority concludes that “[t]he decisions in Alba and Robinson, however, appear to us to be irreconcilable with the apparently clear statements of the Louisiana Supreme Court.”

In my opinion, however, there is no necessary conflict between the Louisiana Supreme Court opinions cited by the majority and the rationale of Alba, Robinson, and Famham. Indeed, this very question was addressed in Famham, when it considered and departed from our earlier decision in Pedelahore v. Astropark, Inc., 745 F.2d 346 (5th Cir.1984), which pre-dated Alba and Robinson, and was expressly rejected in the latter. Pedelahore declined to apply the “arising from” language of the introductory portion of section 3201 because Pedelahore considered that the Louisiana Supreme Court had “consistently held that the Louisiana long-arm statute extends to the maximum limits permitted by due process.” Id. at 348. Pedelahore relied in this connection on, inter alia, Adcock and Drilling Engineering, Inc. v. Independent Indonesian American Petroleum Co., 283 So.2d 687 (La.1973), both of which the majority relies upon and views as being irreconcilable with Famham, Alba, and Robinson. Famham addressed this contention by noting that the language in Louisiana decisions to the effect that “the long-arm statute was to reach the full constitutional limits of due process” could be understood to “only have meant that the legislature intended to reach the limits of due process as to the meaning of ‘transacting any business’ in R.S. 13:3201(1).” 776 F.2d at 537. Famkam also pointed out that decisions containing the “extend to the limits of due process” language did not address the question of whether a nexus was required between the cause of action asserted and the nonresident’s activities relating to Louisiana, but rather addressed the different question of whether the relationship between the nonresident’s activities and Louisiana was sufficient to meet the requirements of the various subdivisions of section 3201.

While Famham is doubtless not the only permissible reading of the relevant Louisiana decisions, it certainly seems to me to be a reasonable one. In Adcock, the issue was whether the defendant’s activities constituted “transacting any business in this state” within the meaning of section 3201(a). The Adcock court specifically relied on Comment (d) of the Louisiana State Law Institute for its conclusion that “transacting business” was to be broadly interpreted. Nevertheless, the Adcock court did not intimate that the cause of action need not arise from the business so transacted. To the contrary, it stated:

“[T]he statute extends personal jurisdiction of the courts over nonresidents ‘transacting any business in this state’ for a cause of action arising from such activity.” 344 So.2d at 971 (emphasis added).

The language quoted by the majority from Moore v. Central Louisiana Electric Co., Inc., 273 So.2d 284, 287 n. 1 (La.1973), is expressly directed to the situation in which “the tortious act or omission takes place without the state but the injury occurs within the state and there is some other reasonable connection between the state and the defendant.” Id. at 286 n. 1. The “nexus” language quoted by the majority concerns what is necessary to constitute the above-referenced “other reasonable connection”; it is not concerned with the “arising from” requirement of the introductory portion of section 3201. In that context, the “arising from” provision relates to the different requirement that, where the fourth subdivision of section 3201 is relied on, the suit be for the injury which occurred within the state.¹ Similarly to Adcock, in Drilling Engineering, the issue was what constituted “transacting any business” for purposes of section 3201(a). The Drilling Engineering opinion notes that the plaintiff’s position, which it ultimately sustained, was that “as a result of defendant’s transacting business in this state, it is subject to the personal jurisdiction of our courts as to a cause of action arising from said activity under R.S. 13:3201(a).” 283 So.2d at 688 (emphasis added). The court went on to rely on Comment (d) of the Louisiana State Law Institute as a basis for giving “transacting any business” a broad construction, and expressly based jurisdiction on subdivision (a) of section 3201. 283 So.2d at 689. In Clay v. Clay, 389 So.2d 31 (La.1979), also relied on by the majority, the court relied on Adcock for its statement that the Louisiana long-arm statute extends jurisdiction over nonresidents to the full potential “consistent with the due process clause.” 389 So.2d at 37. Nevertheless, the court held that jurisdiction was not obtained because, although constitutionally adequate notice was plainly given, nevertheless the technical service requirements of LSA-R.S. 13:3204 (which the court characterized as a part of the long-arm statute) were not complied with. Id. Hence, the Clay court was not giving a literal application to its language concerning the long-arm statute reaching to the full constitutional maximum; rather, the court insisted that the statutory requirements also be met.

The only case cited by the majority which was decided subsequent to Robinson or Famham is Fryar v. Westside Habilitation Center, 479 So.2d 883 (La.1985). There, again, the court was addressing the sufficiency of the defendant’s contacts with Louisiana, not the relationship between the cause of action and those contacts. The court observed that “[a] nonresident party to a contract consummated in the forum state is subject to the forum state’s in personam jurisdiction on causes of action arising out of the transaction. ” 479

So.2d at 888 (emphasis added).

It should also be noted that we are not concerned simply with the “arising from” language in the introductory portion of section 3201, but also with LSA-R.S. 13:3202, which provides, in its entirety:

“When personal jurisdiction over a nonresident is based solely upon R.S. 13:3201, only a cause of action arising from acts or omissions enumerated therein may be asserted against him.”²

Nor do Alba and Robinson stand alone among Louisiana cases in their insistence that the plaintiff’s cause of action against a nonresident arise from the nonresident’s activities as specified in one or more subdivisions of section 3201. Robinson, for example, relies on the opinions in Rush v. Matson Navigation Co., 221 So.2d-265 (La. App. 2d Cir.1969);. Cambre v. St. Paul Fire and Marine Insurance Co., 331 So.2d 585 (La.App. 1st Cir.), writs denied, 334 So.2d 434, 435 (La.1976); Hunt v. Fireman’s Fund Insurance Co., 345 So.2d 1235 (La.App. 1st Cir.1977); and Gertler v. Gondola Ski Shop, Inc., 384 So.2d 856 (La.App. 4th Cir.), writ denied, 392 So.2d 682 (La.1980). See Robinson, 468 So.2d at 1366-69. As indicated, writs were denied in two of these cases, as well as in Alba and Robinson. Further, in the recent case of Drago v. Home Insurance Co., 486 So.2d 940, 942 (La.App. 1st Cir.1986), Robinson is cited with approval on the “arising from” point.

It seems to me not unreasonable to understand the expression of legislative intention that section 3201 extend jurisdiction to the maximum permitted by due process to relate to the breadth of application of the general language of the various subdivisions of section 3201 (particularly the first, fourth, and eighth), as opposed to reflecting an intention that the “arising from” requirement of sections 3201 and 3202 would be applied, contrary to the plain wording of those statutes, only when the failure to do so would contravene the United States Constitution. It may also be that when the Louisiana long-arm statute was enacted it was felt that the United States Constitution imposed such an “arising from” requirement. Perhaps, however, the Louisiana legislature was willing to extend jurisdiction to constitutional limits only because those limits were thought to include such a requirement. Cf. Hall v. Helicópteros Nacionales de Colombia, S.A., 638 S.W.2d 870, 880 n. 6 (Tex.1982) (dissenting opinion of Justice Pope), rev’d sub nom. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).

At all events, we have thoroughly plowed and replowed this ground in Pedelahore and Farnham. While there is certainly room for reasonable difference of opinion, I can find nothing significant which Farnham overlooked, nor does it seem to me that it is anything other than a fair and eminently supportable construction of Louisiana law. Nothing since Farnham casts doubt on it. In these circumstances, I would not certify, particularly as this apparently requires us to decide a constitutional issue left open in Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 1873 n. 10, 80 L.Ed.2d 404 (1984).

1 . Subdivisions (3) and (4), formerly (c) and (d), of section 3201 provide:

"(3) Causing injury or damage by an offense or quasi-offense committed through an act or omission in this state.

"(4) Causing injury or damage in this state by an offense or quasi-offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state." (Emphasis added).

The quoted language from Moore plainly concerns the "if he” requirements of subdivision (4). Here, both the injury and the wrong occurred without the state.

Note should also be taken of subdivision (8) of section 3201, reading as follows:

"(8) Manufacturing of a product or component thereof which caused damage or injury in this state, if at the time of placing the product into the stream or [‘‘of’ obviously intended] commerce, the manufacturer could have foreseen, realized, expected, or anticipated that the product may eventually be found in this state by reason of its nature and the manufacturer’s marketing practices.”

This suggests that the Louisiana legislature considered the "stream of commerce” theory referred to by the majority and chose to limit its application to instances where the injury or damage occurred in Louisiana. Moreover, to sustain jurisdiction here under the first subdivision (and no other basis is suggested) may well render superfluous the apparently carefully considered limitations implicit in the distinctions between subdivisions (3), (4), and (8).

2 . It is to be observed that both section 3202 and the introductory portion of section 3201 speak in terms of a cause of action "arising from” the nonresident’s activities as specified in one or more of the various subdivisions of section 3201. "Arising from” arguably requires a closer connection than "related to” or the equivalent. Thus, Justice Brennan, in his dissenting opinion in Helicópteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 1878, 80 L.Ed.2d 404 (1984), noted that "there is a substantial difference between these two standards for asserting specific jurisdiction,” with "related to" being the broader standard. The Helicópteros majority did not reach that issue. Id. 104 S.Ct. at 1873 n. 10;