United States District Court,

C.D. California.

NIPPONKOA INSURANCE COMPANY, LTD.

v.

CEVA LOGISTICS U.S. INC. et. al.

 

No. CV 12–5801–CAS (AGRx).

Sept. 10, 2012.

 

Daryl Parker, David Maloof, for Plaintiffs.

 

Katherine Nichols, for Defendants.

 

Proceedings: PLAINTIFF’S MOTION TO AMEND COMPLAINT (Docket # 59, filed July 30, 2012)

 

DEFENDANTS’ MOTION TO DISMISS FOR FORUM NON CONVENIENS (Docket # 54, filed July 19, 2012)

CHRISTINA A. SNYDER, Judge.

*1 Catherine Jeang, Deputy Clerk.

 

Laura Elias, Court Reporter / Recorder.

 

I. INTRODUCTION

Plaintiff filed this case in December 2011 in the United States District Court for the Southern District of New York, and filed an amended complaint on March 23, 2012 pursuant to a stipulation by the parties. Plaintiff’s amended complaint alleges four claims for relief: (1) breach of contract, (2) breach of contract to procure insurance, (3) breach of bailment obligations, and (4) negligence. The case was transferred to this Court on July 2, 2012.

 

Defendants moved to dismiss this case on grounds of forum non conveniens on July 17, 2012. Plaintiff filed a motion to amend its first amended complaint on July 30, 2012, and filed an opposition to defendant’s motion to dismiss the case on July 31, 2012. Defendants filed a reply to plaintiff’s opposition on August 20, 2012, and filed a response to plaintiff’s motion to amend its complaint on August 6, 2012, stating that they did not oppose the motion to amend. The Court held a hearing on September 10, 2012. After considering the parties’ arguments, the Court finds and concludes as follows.

 

II. BACKGROUND

Plaintiff is a Japanese corporation that provides Toshiba insurance against loss and damage to cargo. First Amended Complaint (“FAC”) ¶¶ 2, 19. Since April 2003, Toshiba American Information Systems (“TAIS”) has contracted with defendant CEVA for door-to-door delivery of TAIS’ products. FAC ¶ 8; Lowe Decl. ¶ 3. The transportation agreement (“Transportation Agreement”) that governed the relationship between TAIS and CEVA contains, among other things, the following jurisdiction and governing law clause:

 

This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, excluding California’s conflict of law provisions that direct application of another jurisdiction’s laws. The parties expressly consent to the jurisdiction of the federal and state courts located in Orange County, California in the event of any litigation relating to this agreement.

 

Lowe Decl. Ex. 1 at 9. This agreement was expanded to include ocean shipments from the Far East to Mexico. Lowe Decl. ¶ 5. Additionally, plaintiff alleges that this agreement requires CEVA to procure cargo insurance payable directly to TAIS and its underwriter. FAC ¶ 9c.

 

The instant lawsuit arises out of a shipment of TAIS’ laptop computers that CEVA delivered from Shanghai to Mexico City. FAC ¶ 11. The computers were shipped from Shanghai to Manzillo, Mexico by vessel, and from Manzillo to Mexico City by train. FAC ¶ 12. After the computers arrived in Mexico City by train, they were shipped to their final destination by truck. Id. Unfortunately, the computers were stolen en route and were never delivered. Id.

 

According to defendants, plaintiff hired a surveyor, RTS International S de RL de CV (“RTS”), to investigate the theft. RTS issued a report stating that although the laptop shipment had a security escort, the shipment was hijacked at gunpoint by unknown assailants. Nichols Decl. Ex. 1 at 7. The report also states that Mexican police investigated the hijacking, but notes that “in Mexico, third parties are not allowed to verify or request information about events where they are not the affected parties.” Id. at 7o8.

 

III. LEGAL STANDARD

 

A. LEAVE TO AMEND

 

*2 As a preliminary matter, the Court must decide whether Federal Rule of Civil Procedure 15(a) or 16(b) applies. Generally, a court grants a motion for leave to amend pleadings pursuant to the permissive standard of Rule 15(a). Martinez v. Newport Beach City, 125 F.3d 777, 785 (9th Cir.1997). However, once the district court enters a scheduling order establishing a deadline for amending pleadings, Rule 16(b) applies.   Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir.2000). This is because once the scheduling order is in place, the court must modify the scheduling order to permit an amendment. W. Schwarzer, A. Tashima & M. Wagstaffe, Federal Civil Procedure Before Trial (2006) § 8:405.1 (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d at 609). Since no scheduling order has been set by the Court, Rule 15 applies.

 

Rule 15 provides that after a responsive pleading has been filed, “a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a).

 

Where leave to amend is required, the decision whether to grant leave to amend “is entrusted to the sound discretion of the trial court.” Jordan v. County of Los Angeles, 669 F.2d 1311, 1324 (9th Cir.1982), vacated on other grounds, 459 U.S. 810 (1982). “Five factors are taken into account to assess the propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint.” Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir.2004) (citing Nunes v. Ashcroft, 348 F.3d 815, 818 (9th Cir.2003)). “Some courts have stressed prejudice to the opposing party as the key factor.” Texaco v. Ponsoldt, 939 F.2d 794, 798 (9th Cir.1991). However, “[u]ndue delay is a valid reason for denying leave to amend.” Id. (internal quotation marks and citation omitted); but see Bowles v. Reade, 198 F.3d 752, 758 (9th Cir.1999) (“Undue delay by itself, however, is insufficient to justify denying a motion to amend.”). Further, “the liberality of Rule 15(a) does not mean that amendment will be allowed regardless of the diligence of the moving party. Where the party seeking amendment knows or should know of the facts upon which the proposed amendment is based but fails to include them in the original complaint, the motion to amend may be denied.” Jordan, 669 F.3d at 1324. “Late amendments to assert new theories are not reviewed favorably when the facts and the theory have been known to the party seeking amendment since the inception of the cause of action.” Kaplan, 49 F.3d at 1370 (internal quotation marks and citation omitted). Delay can contribute to a finding of prejudice, for “expense, delay, and wear and tear on individuals and companies count toward prejudice.” Id. (internal quotation marks and citation omitted).

 

B. FORUM NON CONVENIENS

*3 This Court has discretion to decline to exercise jurisdiction in a case where litigation in a foreign forum would be more convenient for the parties. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504 (1947). The Supreme Court has characterized the forum non conveniens doctrine as “a supervening venue provision, permitting displacement of the ordinary rules of venue when, in light of certain conditions, the trial court thinks that jurisdiction ought to be declined.” Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 429 (2007).

 

“The forum non conveniens determination is committed to the sound discretion of the trial court.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). A defendant invoking forum non conveniens ordinarily bears a heavy burden in opposing the plaintiff’s chosen forum. “A party moving to dismiss based on forum non conveniens bears the burden of showing (1) that there is an adequate alternative forum, and (2) that the balance of private and public interest factors favors dismissal.” Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1118 (9th Cir.2002) (citing Lueck v. Sundstrand Corp., 236 F.3d 1137, 1142–43 (9th Cir.2001)). “The foreign court’s jurisdiction over the case and competency to decide the legal questions involved will also be considered.”   Leetsch v. Freedman, 260 F.3d 1100, 1103 (9th Cir .2001). “The plaintiff’s choice of forum will not be disturbed unless the ‘private interest’ and ‘public interest’ factors strongly favor trial in the foreign country.” Id. When the plaintiff’s choice is not its home forum, however, the presumption in the plaintiff’s favor “applies with less force,” for the assumption that the chosen forum is appropriate is in such cases “less reasonable.” Piper Aircraft Co., 454 U.S., at 255–256.

 

The Ninth Circuit has recognized that “the standard to be applied to a motion for dismissal on the ground of forum non conveniens is whether … defendants have made a clear showing of facts which … establish such oppression and vexation of a defendant as to be out of proportion to plaintiff’s convenience, which may be shown to be slight or nonexistent.” Id. (quoting Cheng v. Boeing Co., 708 F.2d 1406, 1410 (9th Cir.1983)) (internal brackets omitted). Nevertheless, “[fJorum non conveniens is ‘an exceptional tool to be employed sparingly, not a … doctrine that compels plaintiffs to choose the optimal forum for their claim.’ “ Dole at 1118 (quoting Ravelo Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir.2000)).

 

IV. ANALYSIS

 

A. PLAINTIFF’S MOTION FOR LEAVE TO AMEND SHOULD BE GRANTED

 

Plaintiff seeks to amend its complaint to dismiss claims for breach of bailment and negligence, leaving only its claims for breach of contract and breach of contract to procure insurance. Since defendants will not suffer prejudice from plaintiff dismissing these claims and because defendants do not oppose the motion, the Court grants plaintiff leave to amend its complaint.

 

B. DEFENDANTS’ MOTION TO DISMISS FOR FORUM NON CONVENIENS SHOULD BE DENIED BECAUSE MEXICO IS NOT AN ADEQUATE ALTERNATIVE FORUM AND PLAINTIFF IS POTENTIALLY TIME–BARRED UNDER MEXICAN LAW

*4 To meet its burden of showing that Mexico is an adequate forum, defendant points to other decisions that have found that Mexico to be an adequate alternative forum. See, e.g., In re Ford Motor Co., 591 F.3d 406, 412 (5th Cir.2009) (“We have held in numerous cases that Mexico is an available forum for tort suits against a defendant that is willing to submit to jurisdiction there.”). In response, plaintiff argues that Mexico is not an adequate forum because the claims may be time-barred in Mexico, and a Mexican court would decline jurisdiction over this case.

 

1. Mexico is Not an Adequate Alternative Forum Because the Unrebutted Testimony of Plaintiff’s Expert Opines that Mexican Courts would Decline Jurisdiction over this Case

Plaintiff relies on its expert, Arturo Arista, an attorney, for the conclusion that a Mexican court would decline jurisdiction over this case. Arista is a partner in the law firm Garza Tello & Asociados, a Mexican law firm that practices transportation and insurance law, and has specialized in transportation litigation in Mexican courts for eighteen years. Ptf.’s Ex. 3, Arista Decl., ¶¶ 1–2. According to Arista, “if the transportation agreement … is applicable, a Mexican Court would reject jurisdiction over the case.” Id. at ¶ 6. Arista sets out two reasons why a Mexican court would deny jurisdiction.

 

First, Arista states that a Mexican court could reject jurisdiction where there is an express agreement as to jurisdiction. According to Arista, because the parties have agreed, as is set forth in clause 16 of the Transportation Agreement, that “[t]he parties expressly consent to the jurisdiction of the federal and state courts located in Orange County, California in the event of any litigation relating to this Agreement,” under Articles 1090 FN1, 1092 FN2, and 1093 FN3 of the Mexican Commercial Code, such agreement would normally deprive Mexican courts of jurisdiction. Id ¶ 7. Arista notes that this conclusion is not certain, however, because the Transportation Agreement does not contain a clear renouncement or waiver of jurisdiction in Mexico, and under Mexican case law this fact could lead a court to conclude that the Transportation Agreement does not meet Article 1093’s requirements for express agreements on jurisdiction.

 

FN1. “Article 1090. All suits/complaints must be filed before the competent judge.” Arista Decl. ¶ 7.

 

FN2. “Article 1092. The competent judge will be that agreed between the parties, whether expressly or tacitly.” Arista Decl. ¶ 7.

 

FN3. “Article 1093. There is an express submission to jurisdiction when the parties renounce clearly and categorically to the jurisdiction that could correspond to them by matter of law and, for the purposes of litigation, they consent to submit to the jurisdiction of the courts of their domicile, of the place where either of the obligations must be fulfilled or the courts of the place were the object in matter could be located.” Arista Decl. ¶ 7.

 

Second, Arista states that a Mexican court would reject jurisdiction even if it found there was no express agreement. According to Arista, Articles 1104 FN4, 1105 FN5, and 1106 FN6 of the Mexican Commercial Code apply when there is no express agreement regarding jurisdiction. Id. Mr. Arista concludes that a Mexican court would reject jurisdiction based on Article 1104(I). Id. ¶ 7b.

 

FN4. “Article 1104. Unless otherwise provided in article 1093, notwithstanding thc nature of the commercial proceedings, the following shall be preferred over any other judge:

 

I. The judge located in the place that was designated by the debtor as the place to be judicially claimed to pay.

 

II. The place agreed in the contract for the fulfillment of the obligation.” Arista Decl. ¶ 7.

 

FN5. “Article 1105. If there was no express agreement as per article 1093 above, the competent judge will be that located in the domicile of the defendant. notwithstanding the nature of the legal action that is exercised.” Arista Decl. ¶ 7.

 

FN6. “Article 1106. If the defendant has several domiciles, the competent judge will be that chosen by the plaintiff.” Arista Decl. ¶ 7.

 

In response, defendants claim that Arista only concluded that Mexican courts may decline jurisdiction, and in fact concedes that a Mexican court could take jurisdiction over the case because “the place of the fulfillment of the agreement” was Mexico. This is an inaccurate characterization of Arista’s testimony. Arista unequivocally concludes “it is my opinion that a Mexican Court would be obliged to dismiss a case relating to the Transportation Agreement since other jurisdictions are preferred over Mexico as per the Mexican procedural commercial provisions.” Ptf.’s Ex. 3, Arista Decl., ¶ 7. Additionally, while Arista recognizes that Article 1104 paragraph II of the Mexican Commercial Code provides that in some cases the preferred jurisdiction for hearing a case is “the place of fulfillment of the agreement,” he concludes that this rule would not apply to this case because “the prior rules exclude Mexican courts from jurisdiction to hear this case.” Id. ¶ 7(c).

 

*5 Accordingly, plaintiff’s expert testimony that Mexican courts would decline jurisdiction over this case is unrebutted.FN7 Although defendants cite other cases where courts have found Mexico to be an adequate forum, courts “make the determination of adequacy on a case by case basis, with the party moving for dismissal bearing the burden of proof.” Leetsch v. Freedman, 260 F.3d at 1103. Here, the defendant has not rebutted evidence that Mexican courts would not take jurisdiction over this case. Defendants’ motion to dismiss for forum non conveniens is therefore denied. See Gutierrez v. Advanced Medical Optics, Inc., 640 F.3d 1025, 1031 (9th Cir.2011) (finding that it would be an abuse of discretion to dismiss a case for forum non conveniens if Mexican courts declined to take jurisdiction over plaintiffs’ case through no fault of the plaintiffs).

 

FN7. Though defendants state in their briefing that they would submit to the jurisdictions of Mexican courts, defendants do not offer evidence that this fact alone would allow a Mexican court to take jurisdiction over the case.

 

2. Dismissal is Inappropriate Because Plaintiff Could Face Time–Bar Defenses in Mexico that Would Not Apply in California.

Plaintiff also argues that a newly filed suit in Mexico could be time-barred. Specifically, plaintiff argues that defendants may assert that plaintiff’s claims are time barred by reason of a nine month time-to-sue clause set forth in defendants’ bill of lading. Although plaintiff disputes that this claimed statutory bar would apply because the ocean bill of lading operated as a receipt and not a contract, plaintiff notes that since the shipment arrived in Mexico in April 2011, there is a possibility that defendants would assert this defense in Mexico.

 

Defendant does not address this argument in its reply, and has not given the Court any assurance that it would not pursue a defense based on statute of limitations if this action were dismissed and re-filed in Mexico. “The danger that the statute of limitations might serve to bar an action is one of the primary reasons for the limitation on the court’s discretion with respect to the application of the doctrine of forum non conveniens.” Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1235 (9th Cir.2011). The Ninth Circuit has held that it is an abuse of discretion to dismiss a case on the basis of forum non conveniens without requiring the defendant to waive statute of limitations defenses that could not be asserted in the transferor forum. Id. Accordingly, defendant’s failure to waive time bar defenses that cannot be asserted in California provides another basis to deny its motion to dismiss on the grounds of forum non conveniens.FN8

 

FN8. Since the Court finds that defendant has failed to meet its burden of showing that Mexico is an adequate, alternative forum in this case, there is no need to consider whether the seven private factors and five public factors weigh in favor of dismissal. See, e.g., Piper Aircraft v. Reyno, 454 U.S. 235, 254 fn. 22 (“At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum.”). In any event, defendant has failed to make a showing that these factors weigh in favor of dismissal.

 

V. CONCLUSION

Plaintiff’s motion to amend the first amended complaint is hereby GRANTED. Defendant’s motion to dismiss the case on the grounds of forum non conveniens is hereby DENIED.

 

IT IS SO ORDERED.

United States District Court,

E.D. Louisiana.

RESOLUTION INCORPORATED OF DELAWARE

v.

MEDICAL BRIDGES, INC.

 

Civil Action No. 11–2475.

Sept. 12, 2012.

 

Thomas James Wagner, New Orleans, LA, for Resolution Incorporated of Delaware.

 

Robert J. Barbier, Meredith W. Blanque, Phelps Dunbar, LLP, New Orleans, LA, for Medical Bridges, Inc.

 

ORDER AND REASONS

MARTIN L.C. FELDMAN, District Judge.

*1 Before the Court is the defendant’s motion to dismiss for personal jurisdiction, or, in the alternative, failure to state a claim upon which relief can be granted. For the reasons that follow, the motion is GRANTED.

 

Background

This dispute arises out of a contract for the shipment of goods.

 

Plaintiff, Resolution Incorporated of Delaware, is a corporation that provides shipping services as a non-vessel owning common carrier (“NVOCC”). An NVOCC is an intermediary between the shipper of goods and the operator of a vessel that will ultimately carry the goods. Plaintiff usually coordinates shipments by contracting with other NVOCCs, marine carriers, and vessel owners. The majority of goods plaintiff handles are for humanitarian purposes. Plaintiff is authorized to do business in Louisiana, maintains an office in New Orleans, and primarily operates under the trade names “Missionary Expediters” and “Navigation Network.”

 

Defendant, Medical Bridges, Inc., is a nonprofit organization that recovers surplus medical supplies and equipment from the Houston area and donates them to health care providers in foreign countries. If the receiving health care provider is unable to pay for shipping from Medical Bridges’ warehouse in Houston to its clinic location, Medical Bridges helps locate a shipping sponsor. Medical Bridges is organized in Texas with its principal place of business in Houston, Texas. Medical Bridges has never maintained an authorized agent for service of process in Louisiana, is not authorized or licensed to conduct business in Louisiana, and has no bank account or telephone listing in Louisiana. The company also does not employ or pay taxes in Louisiana. Medical Bridges also claims not to place or direct any advertisements toward Louisiana. The record does not contradict this claim.

 

In April 2008, the defendant received a request for supplies from Santo Yusup Hospital in Bandung, Indonesia. This request was submitted by the hospital’s United States fundraising committee, Aku Sinta Indonesia–Houston Committee. The defendant donated the supplies and contracted with the plaintiff to arrange for the movement of medical supplies to Indonesia. Plaintiff contracted with World Cargo Transport to be the NVOCC for the Indonesia shipment. World Cargo in turn contracted with CMA–CGM to act as the ocean carrier. Two bills of lading and one waybill were subsequently issued for the Indonesia shipment: the plaintiff’s Navigation Network bill of lading, the World Cargo bill of lading, and the CMA–CGM waybill.

 

Using the trade name Navigation Network, plaintiff issued a bill of lading designating (1) Aku Sinta Indonesia–Houston Committee as the shipper/exporter of the medical supplies, (2) Santo Yusup Hospital as the consignee of the suppliers, and (3) plaintiff as the forwarding agents.

 

World Cargo then issued a bill of lading designating (1) plaintiff as the shipper, (2) Santo Yusup Hospital as the consignee, and (3) plaintiff as the forwarding agent.

 

*2 The ocean carrier, CMA–CGM, issued a waybill designating (1) World Cargo as the shipper and (2) Santo Yusup Hospital as the consignee.

 

When the shipment arrived in Jakarta, Indonesia, it remained unclaimed. The container was not released by customs, retrieved by the consignee (Santo Yusup Hospital), or stripped by CMA–CGM. The container remained idle and CMA–CGM made a claim for demurrage/detention charges against World Cargo. World Cargo then made demand upon plaintiff for indemnity for its liability to the carrier. In turn, the plaintiff made demand upon defendant for indemnity, but to no avail. Ultimately, World Cargo paid $10,248 to CMA–CGM. The plaintiff paid World Cargo for the entire amount paid by World Cargo to CMA–CGM.

 

Plaintiff sued defendant in this Court on October 31, 2011, pursuant to Rule 9(h) of the Federal Rules of Civil Procedure. Plaintiff alleges that the defendant violated its obligations under the bill of lading, tariff, and shipping documents. The plaintiff asks the Court for a judgment in its favor for $10,248, in addition to interest, costs, and attorney fees. The defendant now seeks to dismiss the plaintiff’s claim for lack of personal jurisdiction, or, alternatively, for failure to state claim.

 

Personal Jurisdiction Standard

Rule 12(b)(2) of the Federal Rules of Civil Procedure allows a defendant to present by motion a defense that the Court lacks personal jurisdiction over it.

 

When a nonresident like the defendant moves to dismiss for lack of personal jurisdiction, the plaintiff seeking to invoke the jurisdiction of this Court bears the burden of establishing it. See Luv N’ Care v. Insta–Mix, Inc., 438 F.3d 465, 469 (5th Cir.2006). The plaintiff may meet its burden by presenting a prima facie case for personal jurisdiction where, as here, the Court decides the matter without an evidentiary hearing. Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.1994). The Court will take all uncontroverted allegations in the complaint as true and resolve any conflicts in the plaintiff’s favor. Id. The Court is not restricted to pleadings, but may consider affidavits, interrogatories, depositions, or any other appropriate method of discovery. Id.; see Jobe v. ATR Mktg., Inc., 87 F.3d 751, 752 (5th Cir.1996).

 

The Court may exercise personal jurisdiction over a nonresident defendant only if two requirements are satisfied: (1) the forum state’s long-arm statute confers personal jurisdiction; and (2) the exercise of jurisdiction does not exceed the boundaries of Due Process. See Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 270 (5th Cir.2006). Because the limits of Louisiana’s long-arm statute are coextensive with the limits of constitutional due process, the inquiry is simply whether this Court’s exercise of jurisdiction over the defendant would offend due process. See LA.REV.STAT. ANN. § 13:3201(B); Luv N’ Care, 438 F.3d at 469; see also Electrosource, Inc. v. Horizon Battery Techs., Ltd., 176 F.3d 867, 871 (5th Cir.1999).

 

*3 The Due Process Clause limits the Court’s power to assert personal jurisdiction over a nonresident defendant. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413–14 (1994). That is, a nonresident defendant must have meaningful minimum “contacts, ties, or relations” with the forum state in order for jurisdiction to be constitutional. See Luv N’ Care, 438 F.3d at 469 (citing Int’l Shoe Co. v. Wash., 326 U.S. 310, 319 (1945)). The minimum contacts analysis asks whether the nonresident defendant purposefully availed himself of the benefits and protections of the forum.   Wilson v. Belin, 20 F.3d 644, 647 (5th Cir.1994).

 

The minimum contacts test takes two forms, and the constitutional limitations on the exercise of personal jurisdiction differ depending on whether a court seeks to exercise general or specific jurisdiction over the defendant. Specific jurisdiction exists if the plaintiff shows that the defendant has purposely directed its activities toward the forum state and that its cause of action arises out of or results from the defendant’s forum-related contacts. Luv N’ Care, 438 F.3d at 469 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985) and Nuovo Pignone v. STORMAN ASIA M/V, 310 F.3d 374 (5th Cir.2002)). Once the plaintiff makes this preliminary showing, personal jurisdiction will lie so long as maintaining the suit will not “offend traditional notions of fair play and substantial justice.” Id. General jurisdiction, on the other hand, exists where contacts between the defendant and the forum state have been continuous and systematic to such an extent that the exercise of personal jurisdiction is justified. Dickson Marine, Inc. v. Panalina, Inc., 179 F.3d 331, 339 (5th Cir.1999).

 

I. Discussion

Defendant submits that it lacks the minimum contacts necessary for this Court to exercise personal jurisdiction over them. The Court agrees.

 

A.

The plaintiff argues that the Court has specific personal jurisdiction over the defendant because the defendant purposely directed its activities at the forum state by contracting with the plaintiff in Louisiana, and the cause of action arises out of that business transaction. It is well established within the Fifth Circuit that merely contracting with a resident of the forum state is not in itself sufficient to establish minimum contacts. See, e .g., Burger King, 471 U.S. at 476; Brammer Eng’g, Inc. v. E. Wright Mountain Ltd. P’ship, 307 F. App’x 845, 847–48 (5th Cir.2009); Recetec, LLC v. Allied Erecting & Dismantling Co., No. 07–7126, 2008 WL 2067031, at *3 (E.D.La. May 14, 2008). Therefore, the fact that the defendant has a contract with a Louisiana company is not dispositive of personal jurisdiction. Courts consider the parties’ prior negotiations, contemplated future consequences, terms of the contract, and the parties’ actual course of dealing. See Burger King, 471 U.S. at 479.

 

Defendant hired the plaintiff for the purpose of transporting the medical supplies from the defendant’s warehouse in Houston, Texas to Jakarta, Indonesia. All negotiations of the shipping documents occurred over the internet, phone, or fax. The e-mail communication between the plaintiff and defendant indicates that the plaintiff’s task of arranging shipment was always centered on retrieving the supplies from Texas. The medical supplies and ocean carrier never passed through Louisiana or any port within. There appears little contact by the defendant with the forum state other than the defendant’s e-mails and payments, which are insufficient to constitute minimum contacts. See McFadin v. Gerber, 587 F.3d 753, 760 (5th Cir.2009) (“[C]ommunications relating to the performance of a contract themselves are insufficient to establish minimum contacts.”); Freudensprung v. Offshore Technical Servs., Inc., 379 F.3d 327, 344 (5th Cir.2004) (“[The Fifth Circuit] has repeatedly held that the combination of mailing payments to the forum state, engaging in communications related to the execution and performance of the contract, and the existence of a contract between the nonresident defendant and a resident of the forum are insufficient to establish minimum contacts.”).

 

*4 The fortuity of the plaintiff’s residence in Louisiana is insufficient to support a finding of specific personal jurisdiction over the defendant when the plaintiff has failed to carry its burden of establishing that the plaintiff’s claim arises out of the plaintiff’s mere presence in Louisiana.

 

B.

The plaintiff points to one other related contact that the defendant had with Louisiana, presumably in an attempt to support an argument for the Court’s exercise of general jurisdiction. Earlier in 2008, the defendant contracted with the plaintiff to ship goods from Houston, Texas to San Antonio, Chile. The plaintiff argues that this Chilean transaction, in conjunction with the Indonesian transaction, make it “foreseeable” that the defendant would be haled into court in Louisiana and therefore minimum contacts exist. The argument is a stretch, and the cases plaintiff cites as support for its general jurisdiction argument are distinguishable.

 

In Exposition Partner, LLP v. King LeBlanc & Bland, LLP, an organization was formed in Louisiana by Texas and Louisiana residents. 869 So.2d 934, 44 (La.App. 2 Cir. 3/10/04). Among other things, fifty percent of the company’s ownership was based in Louisiana and a registered office was kept in Louisiana. See id. In this case the defendant has no offices, bank accounts, property, employees, phone numbers, mailing addresses, or registered agents in Louisiana. It is not licensed or qualified to conduct business in Louisiana. It does not advertise in Louisiana or target residents of the state. The second case the plaintiff cites is also unhelpful. The plaintiff in Greenway Leasing, L.P. v. Star Buffet Mgmt., Inc. sued a wholly-owned subsidiary and its parent company. 57 So.3d 397, 400 (La.App. 2 Cir. 1/26/11). The court there held that minimum contacts existed over the parent company because the parent company made frequent visits to Louisiana and began the process to legally acquire the subsidiary in bankruptcy proceedings. See id. No such contacts exist in the case here.

 

Although a contract was entered into with a Louisiana firm, the defendant did not purposefully avail itself of the privilege of conducting activities in Louisiana. Accordingly, the defendant’s motion to dismiss for lack of personal jurisdiction is GRANTED.