Maria Frank v. P N K (Lake Charles) L.L.C.

Case: 18-31060 Document: 00515278726 Page: 1 Date Filed: 01/21/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 21, 2020
No. 18-31060
Lyle W. Cayce
Clerk
MARIA STEFFAN FRANK, Individually and as Administrator of the Estate
of Betty Steffan; DAVID BRUCE STEFFAN; THOMAS J. STEFFAN;
CYNTHIA D. GUM; ROBERT M. STEFFAN; DAVID B. STEFFAN, JR.;
RICHARD L. STEFFAN; SUZANNE L. KELLEY,
Plaintiffs - Appellants
v.
P N K (LAKE CHARLES) L.L.C., erroneously named as Pinnacle
Entertainment Incorporated, doing business as L'Auberge du Lac Hotel;
Casino,
Defendant - Appellee
Appeal from the United States District Court
Western District of Louisiana
Before BARKSDALE, STEWART, and COSTA, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Plaintiffs-Appellants, Maria Steffan Frank, individually and as
Administrator of the Estate of Betty Steffan, David Bruce Steffan, Thomas J.
Steffan, Cynthia D. Gum, Robert M. Steffan, David B. Steffan, Jr., Richard L.
Steffan, and Suzanne L. Kelley (collectively referred to as “Appellants”)
initiated this wrongful death action against Defendant-Appellee PNK (Lake
Charles) LLC (“PNK”) alleging, inter alia, claims for negligence, premises
liability, and breach of warranty. Appellants originally filed a state action in
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Harris County, Texas. The case was subsequently removed and transferred to
the presiding court for lack of personal jurisdiction. Shortly after the case’s
transfer, the district court dismissed Appellants’ claims for being time-barred.
Appellants appeal the judgment and the related order transferring this action
to the Western District of Louisiana. In view of Supreme Court precedent
illuminating the personal jurisdiction standard, we AFFIRM.
I.
In 2015, Betty Steffan fell off a swivel chair in the L’Auberge du Lac
Hotel & Casino in Lake Charles, Louisiana (“L’Auberge”). When the 86-year-
old Texas native fell from the stool, her head struck the casino’s floor causing
a subdural hematoma which led to her death the following day.
The PNK’s Texas contacts below are outlined in Appellants’ complaint
and exhibits attached to Appellants’ response to PNK’s motion to dismiss or
transfer. 1
1 According to the complaint, Appellants allege that personal jurisdiction exists
because PNK “employed Texas residents, solicited business within the State of Texas, and
has otherwise availed itself of the benefits and protections offered by the laws of” Texas.
For jurisdictional support in response to PNK’s motion to dismiss or transfer, the
record reflects that Appellants relied on the following: (1) an affidavit from Maria Steffan
Frank; (2) a 2005 Houston Chronicle Article discussing the marketing strategies in opening
L’Auberge; (3) an affidavit from Appellants’ counsel; (4) economic data related to Louisiana’s
gaming board and the economic impact of riverboat casinos; (5) a bus schedule published by
Pinnacle Entertainment, Inc. (“Pinnacle”), PNK’s sole owner; (6) a Pinnacle organizational
chart; and (7) a Pinnacle press release.
Outside of the fact that the majority of this evidence provides little to no jurisdictional
support, we still consider “the contents of the record at the time of the motion.” Paz v. Brush
Engineered Materials, Inc., 445 F.3d 809, 812 (5th Cir. 2006) (quoting Quick Techs., Inc. v.
Sage Grp. PLC, 313 F.3d 338, 343 (5th Cir. 2002); Washington v. Norton Mfg. Inc., 588 F.2d
441, 443 (5th Cir. 1979) (stating that the court has “broad discretion to allow discovery on
jurisdictional issues”) (citation omitted).
2
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While PNK’s and L’Auberge’s business operations are domiciled in
Louisiana 2, L’Auberge draws a large portion of its revenue from Texas patrons.
Located 135 miles from Texas’s largest city, Houston, L’Auberge has long been
an attractive venue to Texans since the multimillion-dollar complex was built
in 2005.
PNK’s marketing plan also evinces its intention to promote L’Auberge to
Texas residents. PNK sent marketing teams to Texas and conducted focus
groups to learn what would attract Texan customers. It advertises in the
Houston area, via mailers, the internet, billboards, television commercials, and
radio ads. It also subsidizes charter bus services to shuttle Texas patrons
across state lines. The bus schedule is advertised on the L’Auberge website.
In her affidavit, Maria Steffan Frank stated that she (along with other
members of the estate) had received mail advertisements and seen billboards
while living in Texas. Despite its various Texas solicitations vis-à-vis
L’Auberge, PNK’s Texas contacts solely stem from these marketing activities,
with the exception of the charter services.
PNK is not registered to do business in Texas. It does not own or have
any offices, personal property, real property (including rental property), bank
accounts, employees 3, or agents for service of process in Texas.
II.
Claiming that L’Auberge provided unsafe facilities and failed to provide
Betty Steffan with proper aid following her fall, Appellants initially filed the
wrongful death complaint in a Texas state court in Harris County. 4 PNK
2 PNK is a limited liability company that owns the gaming license for L’Auberge. It is
domiciled in Baton Rouge, Louisiana.
3 Of note, while PNK does not have employees in Texas, it does retain Texas charter
bus services for shuttling Texans to L’Auberge.
4 At the outset, Pinnacle was the named defendant in this wrongful death action. PNK
later intervened as the appropriate party.
3
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removed the matter to the Southern District of Texas (Houston Division) and
filed a concurrent motion to transfer or dismiss for lack of personal jurisdiction.
In a one-page order, the district court granted PNK’s motion to transfer
because PNK’s advertising (1) was promoted nationally and did not “establish
systematic and continuous contacts with Texas that confer general
jurisdiction”; and (2) did not relate to Appellants’ injuries to confer specific
jurisdiction. The court transferred the case to the Western District of
Louisiana.
Before the presiding district court, PNK moved for summary judgment
due to Appellants’ claims being time-barred by Louisiana’s 1-year prescription
under Civil Code article 3492. Appellants did not dispute this assertion.
Consequently, PNK’s motion was granted because this action was filed outside
of the prescription period. 5
Appellants appeal, seeking to undo the Louisiana final judgment by
reversing the Southern District of Texas transfer order. The parties assume
the venue affects the case’s outcome as Texas provides for a 2-year limitations
period for personal injury actions. 6 See TEX. STAT. § 16.003. Appellants’
position is that the Texas court erred in not exercising personal jurisdiction
over PNK because a non-resident company, like PNK, may be subjected to
general jurisdiction for its targeted advertising in the forum state.
III.
“We review de novo a dismissal for lack of personal jurisdiction.”
Stripling v. Jordan Prod. Co., 234 F.3d 863, 869 (5th Cir. 2000) (citation
omitted).
5 Betty Steffan was fatally injured in 2015, and this action commenced in 2017.
6 “[F]ollowing a section 1406(a) transfer, regardless of which party requested the
transfer or the purpose behind the transfer, the transferee court must apply the choice of law
rules of the state in which it sits.” Ellis v. Great Sw. Corp., 646 F.2d 1099, 1110 (5th Cir.
Unit A June 1981).
4
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“There is personal jurisdiction if the state’s long-arm statute extends to
the defendant and exercise of such jurisdiction is consistent with due
process.” Sangha v. Navig8 ShipManagement Private Ltd., 882 F.3d 96, 101
(5th Cir. 2018) (citing Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 609
(5th Cir. 2008)). “The Texas long-arm statute’s broad doing business language
authorizes personal jurisdiction over a nonresident defendant as far as the
federal constitutional requirements of due process will allow.” Zinc Nacional,
S.A. v. Bouche Trucking, Inc., 308 S.W.3d 395, 397 (Tex. 2010) (internal
quotations and citations omitted).
The plaintiff “bears the burden of establishing jurisdiction but is
required to present only prima facie evidence.” Seiferth v. Helicopteros
Atuneros, Inc., 472 F.3d 266, 270 (5th Cir. 2006) (citation omitted). To
determine whether the plaintiff has met this burden, the court can consider
the “assertions in the plaintiff’s complaint,” as well as “‘the contents of the
record at the time of the motion . . . .’” Sangha, 882 F.3d at 101 (5th Cir. 2018)
(quoting Paz v. Brush Engineered Materials, Inc., 445 F.3d 809, 812 (5th Cir.
2006)).
A.
General Jurisdiction and the Present Framework for
Being “Essentially At Home”
“‘Minimum contacts’ can be established either through contacts
sufficient to assert specific jurisdiction, or contacts sufficient to assert general
jurisdiction.” 7 Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir.
7 The Due Process Clause of the 14th Amendment guarantees that no federal court
may exercise personal jurisdiction over a non-resident defendant unless the defendant has
sufficient minimum “contacts, ties, or relations” with the forum state. Int’l Shoe Co. v. State
of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945). This
provides “a degree of predictability to the legal system that allows potential defendants to
structure their primary conduct with some minimum assurance as to where that conduct will
5
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2000) (citation omitted). General jurisdiction 8 exists over a non-resident
defendant when its “affiliations with the State are so ‘continuous and
systematic’ as to render them essentially at home in the forum State.”
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)
(citation omitted).
There are very few cases where the Supreme Court addresses the scope
of general jurisdiction related to corporations. Perkins v. Benguet Consolidated
Mining Company, 342 U.S. 437 (1952) “remains the ‘textbook case of general
jurisdiction appropriately exercised over a foreign corporation that has not
consented to suit in the forum.’” Goodyear, 564 U.S. at 928 (quoting Donahue
v. Far E. Air Transp. Corp., 652 F.2d 1032, 1037 (D.C. Cir. 1981)). This is the
only Supreme Court case where general jurisdiction was appropriately
exercised against a corporation, and since Perkins, it has become “incredibly
difficult to establish general jurisdiction in a forum other than the place of
incorporation or principal place of business.” Monkton Ins. Servs., Ltd. v.
Ritter, 768 F.3d 429, 432 (5th Cir. 2014) (citations omitted).
The Supreme Court (twice) discussed general jurisdiction and stated
that, in order to properly exercise general jurisdiction, a defendant-company
must be “at home” in the forum state. Goodyear, 564 U.S. at 919; Daimler AG
v. Bauman, 571 U.S. 117, 122 (2014). 9 In reversing the state appellate court’s
decision to exercise personal jurisdiction, the Supreme Court stated that “[f]or
and will not render them liable to suit.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472
(1985) (citation omitted).
8 At the September 6, 2019, oral argument, Appellants’ counsel maintained that their
position only supports general jurisdiction and does not assert any specific jurisdiction
arguments. Specific jurisdiction is therefore not discussed below.
9 The high court also discussed general jurisdiction in BNSF Ry. Co. v. Tyrrell, ––
– U.S. ––––, 137 S. Ct. 1549, 1558-62 (2017). The Supreme Court recognized Goodyear and
Daimler as the framework for the “at home” analysis; in turn, we use those two cases as our
guideposts.
6
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an individual, the paradigm forum for the exercise of general jurisdiction is the
individual’s domicile; for a corporation, it is an equivalent place, one in which
the corporation is fairly regarded as at home.” Goodyear, 564 U.S. at 924
(citing Brilmayer et al., A General Look at General Jurisdiction, 66 TEXAS L.
REV. 721, 728 (1988)). In turn, generally, a corporation’s “home” falls in two
paradigmatic places: (1) the state of incorporation and (2) the state where it
has its principal place of business. BNSF Ry. Co. v. Tyrrell, ––– U.S. ––––, 137
S. Ct. 1549, 1558 (2017) (“The paradigm forums in which a corporate defendant
is at home . . . are the corporation’s place of incorporation and its principal
place of business.”) (internal quotations and citations omitted). These two
places “have the virtue of being unique—that is, each ordinarily indicates only
one place—as well as easily ascertainable.” Daimler, 571 U.S. at 137.
In Daimler, general jurisdiction was predicated on the California
contacts of Daimler’s subsidiary, MBUSA. Id. at 124. The Supreme Court held
that MBUSA’s California activities could not subject Daimler
to general jurisdiction in California because the contacts were insufficient “‘to
render [it] essentially at home’” in California. Id. at 122 (quoting Goodyear,
564 U.S. at 919) (alteration in original). Even though a corporation might
operate “in many places,” it cannot “be deemed at home in all of them” because
unpredictability would follow and jurisdictional rules are meant to “promote
greater predictability.” Id. at 137, 139 n.20. A company is therefore deemed
“at home” when “‘the continuous corporate operations within a state [are] so
substantial and of such a nature as to justify suit . . . on causes of action arising
from dealings entirely distinct from those activities’”—which more than likely
is the business’s domicile. Id. at 127 (quoting Int’l Shoe Co. v. State of Wash.,
Office of Unemployment Comp. & Placement, 326 U.S. 310, 318 (1945)).
Accordingly, “the [general jurisdiction] inquiry . . . is not whether a foreign
corporation’s in-forum contacts can be said to be in some sense continuous and
7
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systematic, it is whether that corporation’s affiliations with the State are so
continuous and systematic as to render [it] essentially at home in the forum
State.” Id. at 138–39 (internal quotations omitted) (quoting Goodyear, 564
U.S. at 919) (alteration in original).
B.
General Jurisdiction Cannot Be Conferred
PNK is a limited liability company 10 domiciled in Louisiana. In turn, for
general jurisdiction to exist in a forum other than Louisiana, this would have
to be the “exceptional case” where PNK’s corporate operations are “so
substantial and of such a nature as to render the corporation at home” in that
forum. Id. at 139 n.19 (citing Perkins, 342 U.S. at 437). PNK’s corporate
contacts with Texas are not of the exceptional nature such that PNK could be
found to be “at-home” in Texas.
Appellants’ position is that PNK’s contacts are sufficient to permit the
exercise of general jurisdiction because PNK’s targeted advertising activities
are aimed at Texans. For support, Appellants submitted evidence indicating
that (1) a substantial number of L’Auberge’s patrons are out-of-state; (2)
10 Of note, neither the Supreme Court nor a sister circuit has directly addressed
whether the type of artificial entity, e.g., partnership or limited liability company, affects the
“at home” analysis. Our circuit and several in-circuit district courts have applied the “at
home” test to entities other than corporations, albeit without analyzing whether the entity
type changes the outcome. See, e.g., Cunningham v. CBC Conglomerate, LLC, 359 F. Supp. 3d
471, 478–79 (E.D. Tex. 2019) (finding that a limited liability corporation was not considered
“at home” based on insufficient contacts); Stewart v. Marathon Petroleum Co. LP, 326
F. Supp. 3d 284, 292–95 (E.D. La. 2018) (same in the context of a limited partnership); Head
v. Las Vegas Sands, LLC, 298 F. Supp. 3d 963, 976–80 (S.D. Tex. 2018), aff’d 760 F. App’x 281
(5th Cir. 2019) (same).
Here, we are examining the corporate structure of a limited liability company whose
physical corporate operations are domiciled in Louisiana. The rationale behind this test is to
rely on a business’s domicile or place of principal business as a guidepost in ascertaining
where the business is “at home.” Considering this premise, the entity type is not germane to
this jurisdictional analysis; instead it is the company’s domicile that merits attention.
8
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L’Auberge was designed for the Houston market; (3) PNK’s marketing
research, which included focus groups, was focused on Houston; and (4) PNK
pays for Texas bus companies to take Texans to L’Auberge. Taken together,
Appellants contend that PNK’s targeted solicitation is consistent, extensive,
and what drew Betty Steffan and Maria Steffan Frank to L’Auberge on the
night of the incident. Tellingly absent from Appellants’ briefs is any mention
of the “at home” test and its application here. 11
The issues here call for us to conduct an “at home” jurisdiction analysis
in connection with advertising contacts targeting a forum state. In the context
of personal jurisdiction, we have yet to address this type of marketing that
targets out-of-state patrons. The closest factual scenario came when
addressing national advertisements in a forum state—which we concluded did
not confer general jurisdiction. See Jackson v. Tanfoglio Giuseppe, S.R.L., 615
F.3d 579, 584 (5th Cir. 2010) (“Advertising and marketing through national
media [are] insufficient [to confer general jurisdiction], as are isolated visits to
a forum.”); Null v. Bank One of Columbus, N.A., No. 92–5662, 1993 WL 82034,
11 At oral argument and in briefs, the parties spent considerable time quibbling over
whether Pinnacle or PNK is responsible for the advertising at hand. According to PNK,
Appellants erroneously impute Pinnacle’s marketing activities to PNK. Appellants’ position
is that if Pinnacle is acting on PNK’s behalf in promoting L’Auberge, then such jurisdictional
contacts can be attributable to PNK, especially considering that PNK voluntarily intervened,
in Pinnacle’s place, as the appropriate party.
This court generally does not impute contacts across parents and subsidiaries for
jurisdictional purposes. See Southmark Corp. v. Life Investors, Inc., 851 F.2d 763, 773–74
(5th Cir. 1988) (holding that when “a wholly owned subsidiary is operated as a distinct
corporation, its contacts with the forum cannot be imputed to the parent”).
We agree that a portion of these advertising activities can be attributable to an entity
other than PNK (e.g., the bus schedule stating that “L’Auberge is a registered trademark of
Pinnacle”). However, because these contacts in totality fail to meet the standard for
minimum contacts, evaluating each contact to determine its origin makes no difference. In
other words, with or without Pinnacle’s apparent advertising activities as jurisdictional
support, PNK finds itself in the same position—lacking general jurisdiction.
9
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at *1 (5th Cir. Mar. 11, 1993) (“Defendants’ advertising in a publication with
national circulation does not support a finding of general jurisdiction.”)
(footnote omitted). While our previous case law brings us to a familiar
destination point—finding no general jurisdiction—we must chart a different
trail with the “at home” test.
Here, the inquiry is whether PNK’s targeted advertising renders it “at
home” in Texas. The answer is no. Evaluating these factual allegations and
evidence in the light most favorable to Appellants, PNK’s contacts are
comprised of advertising activities (e.g., internet aids, mailers, market
research, billboards, TV commercials) and a shuttle service subsidy purely
aimed at Texans. With the exception of PNK’s subsidized shuttle service, we
understand that PNK’s ongoing promotional campaign is intentionally
directed at Texas to solicit patrons. True, these activities are among the indicia
of “continuous and systematic” contacts. Cf. Pedelahore v. Astropark, Inc., 745
F.2d 346, 349 (5th Cir. 1984) (“The targeted solicitation [which include
activities that extend beyond that of the case at bar] together with the
substantial number of Louisiana patrons support Louisiana’s legitimate
interest in providing its citizens with reasonable access for redress.”); accord
Gavigan v. Walt Disney World, Inc., 646 F. Supp. 786, 787–89 (E.D. Pa. 1986)
(finding that prolonged, targeted advertising campaign and presence in forum
state justified general jurisdiction). Continuous and systematic contacts
nonetheless must be “so substantial and of such a nature as to justify suit
against it on causes of action arising from dealings entirely distinct from those
activities.” Int’l Shoe, 326 U.S. at 318 (describing what is now known as
general jurisdiction). And to comport with Daimler, the affiliations with the
forum state must approximate physical presence. Turney v. Hyundai Constr.
Equipment USA Inc., 577 F. App’x 659, 660 (9th Cir. 2014) (citing Daimler, 571
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U.S. at 136–39 and Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d
1082, 1086 (9th Cir. 2000)). This is where Appellants fall short.
Under the alleged facts and evidence (or lack thereof), Appellants fail to
demonstrate PNK’s physical presence in Texas. There is no evidence pointing
to PNK’s physical operations being located in Texas. Indeed, it is
uncontroverted that PNK does not have employees or registered agents
stationed in Texas; a Texas license or permit; offices, gaming facilities or real
estate in Texas; nor does it have a bank account or pay taxes in Texas. Cf. In
re Knight Corp., 378 S.W.3d 658, 660 (Tex. App.—Houston [14th Dist.] 2012)
(holding that sales and purchases in Texas, as well as in-state facilities and
bank accounts, are relevant to determining whether general jurisdiction
exists). PNK’s Texas contacts begin and end with its marketing activities. And
its physical corporate operations are performed entirely in Louisiana, its
domicile. PNK is not carrying on any “part of its general business” in Texas.
Perkins, 342 U.S. at 438 (upholding general jurisdiction because, inter alia,
“[t]he corporation has been carrying on in Ohio a continuous and systematic,
but limited, part of its general business.”); Tyrrell, 137 S. Ct. at 1558–
59 (looking to whether the amount of business in the forum is a significant
proportion of defendant’s business). The most that can be said of PNK is that
it does a substantial amount of business with Texans but not in Texas. See
Monkton, 768 F.3d at 432 (“In this case, at most, [the defendant’s] website
shows that [it] conducts business with Texas, not in Texas.”). PNK’s
advertising efforts alone hardly allow us to infer that PNK was literally
present in Texas.
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C.
Reconciling Targeted Advertising Caselaw
Preceding Goodyear and Daimler
Appellants identify a handful of pre-Goodyear and Daimler district court
cases finding general jurisdiction against non-resident casinos for their
localized marketing efforts. See, e.g., Wilson v. Ameristar Casino Vicksburg,
Inc., No. 07-0297, 2007 WL 2284608, at *2–4 (W.D. La. July 10, 2007); Grabert
v. New Palace Casino, L.L.C., No. 03-382, 2003 WL 21999351, at *4 (E.D. La.
Aug. 20, 2003); Gorman v. Grand Casino of La., Inc.-Coushatta, 1 F. Supp. 2d
656, 658 (E.D. Tex. 1998). According to Appellants, the Texas district court
ignored the cited cases—which contain jurisdictional issues that overlap with
this matter. Because other district courts gave substantial weight to these
casinos’ out-of-state advertising contacts, Appellants urge us to do the same in
considering this inquiry.
The cited support is wide of the mark. As a preliminary point,
Appellants’ cases predate the “at home” test. Notwithstanding the dated
caselaw, each case exercises general jurisdiction over a non-resident casino
because it “had numerous local advertising contacts with the [forum state],”
including “the local Yellow Pages, . . . local billboards, local telephone
directories, local television, and local radio.” Gorman, 1 F.Supp.2d at 659;
Wilson, 2007 WL 2284608, at *2–3 (finding general jurisdiction solely based on
“actively soliciting patrons from Louisiana” with “regular radio, television,
newspaper, and billboard advertising”) (citations omitted); Grabert, 2003 WL
21999351, at *3 (“Local advertising, however, when successful and directed
toward local markets can support personal jurisdiction and can constitute
systematic and continuous contacts supporting general jurisdiction.”). These
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are not the only cases that follow this analysis in exercising general jurisdiction
over out-of-state casinos wholly predicated on local advertising. 12
We take this opportunity to properly apply the redefined general
jurisdiction test under Daimler. Indeed, our sister circuits have already
applied the “at home” test under similar targeted marketing or solicitation
facts and found no general jurisdiction. Kipp v. Ski Enter. Corp. of Wisc., 783
F.3d 695, 699 (7th Cir. 2015) (finding no general jurisdiction and stating that
while the defendant solicited many Illinois residents, “no case has ever held
that solicitation alone is sufficient for general jurisdiction” and such contacts
“still do[] not suffice to make [the defendant] at home in Illinois.”); Martinez v.
Aero Caribbean, 764 F.3d 1062, 1069–70 (9th Cir. 2014) (finding defendant’s
contacts, which included advertising in publications disseminated in forum
state, to be insufficient to subject it to general jurisdiction because the
“Supreme Court’s recent decision in Daimler makes clear the demanding
nature of the standard for general personal jurisdiction over a corporation.”);
CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1074–76 (9th Cir.
2011) (stating that a non-resident corporation was not subject to general
personal jurisdiction in California, despite the corporation “misappropriat[ing]
[plaintiff’s] catalogs and course descriptions in California; market[ing] its
services to California students and educational institutions; [having] three
12 See, e.g., Knight v. Delta Downs Racetrack, Casino & Hotel, No. 2:11-CV-2124, 2012
WL 4961193, at *4 (W.D. La. Oct. 16, 2012) (“Courts in this circuit have consistently held
that out-of-state gaming facilities which target their bordering neighbors have sufficient
minimum contacts in the neighboring state such that they could expect to be haled into court
in there.”); Nayani v. Horseshoe Entm’t, No. 3:06–CIV–01540–M, 2007 WL 1062561, at *4
(N.D. Tex. April 10, 2007) (finding that the defendant’s acts of extensively advertising on
Texas billboards and radio stations and directly mailing coupons and other solicitations to
Texas members of its select customer club, among other things, supported a finding of general
jurisdiction); Morgan v. Coushatta Tribe of Indians of La., 214 F.R.D. 202, 207 (E.D. Tex.
2001) (“[T]he court concludes that this court may exercise general jurisdiction over [the
defendant] based on its systematic and continuous contacts with Texas via a pervasive,
systematic, and continuous local advertising campaign.”).
13
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hundred registered users and two paid subscribers in California; and
maintain[ing] a highly interactive website.”).
These authorities uniformly accept the conclusion that local advertising,
as a standalone factor, does not meet “the demanding nature of the standard
for general personal jurisdiction over a corporation.” Aero Caribbean, 764 F.3d
at 1070. A business, like PNK, is not “at home” in Texas merely because it
solicits business from Texans. Meager advertising and soliciting activity will
not suffice. Accepting Appellants’ position and exercising general jurisdiction
simply for targeted advertising would be “exorbitant,” inconsistent with due
process, and “would scarcely permit out-of-state defendants ‘to structure their
primary conduct with some minimum assurance as to where that conduct will
and will not render them liable to suit.’” Daimler, 571 U.S. at 139 (quoting
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)); accord
CollegeSource, 653 F.3d at 1075 (explaining that a “defendant’s discrete,
isolated contacts with the forum support jurisdiction on a cause of action
arising directly out of its forum contacts, but this is specific rather than general
jurisdiction”) (citations omitted). The objective is to promote predictability, not
impede it. Burger King, 471 U.S. at 472 (stating that personal jurisdiction
provides “a degree of predictability to the legal system”) (citation omitted).
Indeed, earlier this year, we applied the “at home” test in a case involving a
casino defendant’s internet presence. Head v. Las Vegas Sands, LLC, 760 F.
App’x 281, 284 n. 3 (5th Cir. 2019). We found no general jurisdiction despite
the casino defendant’s website presence because no evidence was presented
that would rise to the level of rendering the casino defendant “at home” in
Texas. Id. at 284. While the contacts here are somewhat distinct from Head,
the lack of approximate physical presence follows the same logic. Turney, 577
F. App’x at 660 (citing to Daimler, 571 U.S. at 136–39 and Bancroft, 223 F.3d
at 1086). Appellants’ targeted advertising allegations and jurisdictional
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Case: 18-31060 Document: 00515278726 Page: 15 Date Filed: 01/21/2020
No. 18-31060
evidence do not satisfy the “at home” test. Therefore, we cannot exercise
general jurisdiction.
IV.
For the foregoing reasons, the Southern District of Texas properly held
that it lacked personal jurisdiction over PNK and appropriately transferred
this action to Louisiana. The judgment of the district court is AFFIRMED.
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