Standard of Review Appeal From Motion to Dismiss New York
Lamothe Law Firm attorneys have over 100 years of combined experience practicing in federal court. Richard Martin recently wrote an commodity for other attorneys on "Legal Standards for Federal Rule of Civil Procedure 12 Motions to Dismiss" for the Louisiana Association for Justice publication, Louisiana Advocates. Hither is the article in its entirety.
LEGAL STANDARDS FOR FEDERAL Dominion OF Civil PROCEDURE 12 MOTIONS TO DISMISS
This article discusses the three nigh common federal court motions to dismiss which can be brought against your clients, and the standard for overcoming them These motions include Fed. R. Civ. P. 12(b)(1), which challenges field of study matter jurisdiction, Fed. R. Civ. P. 12(b)(2), which challenges personal jurisdiction, and Fed. R. Civ. P. 12(b)(vi) which asserts that plaintiff has failed to land a claim upon which relief may exist granted. Winning these motions normally confers general or specific jurisdiction. But, there are as well occasions when, despite a lack of general or specific jurisdiction, the court might be able to practise Rule 4(k)(2) over the defendant. Typically, Dominion 4(k)(2) will involve an "offshore" defendant which plays a "crush game" ducking U.S. jurisdiction but still has sufficient contacts with the Usa as a whole to satisfy due process concerns.
I. Rule 12(b)(1)
Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claims.one A motion to dismiss nether Federal Rules of Civil Procedure 12(b)(1) challenges a federal court'southward subject-matter jurisdiction.ii Nether Rule 12(b)(1), "[a] case is properly dismissed for lack of discipline affair jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case."3 "Lack of bailiwick-thing jurisdiction may be found in the complaint alone, the complaint supplemented by the undisputed facts as evidenced in the tape, or the complaint supplemented by the undisputed facts plus the court's resolution of the disputed facts."four "When grounds for dismissal may exist nether both Dominion 12(b)(1) and Rule 12(b)(half dozen), the Courtroom should, if necessary, dismiss just under the former without reaching the question of failure to country a merits."v
II. Rule 12(b)(2)
"Personal jurisdiction 'is an essential chemical element of the jurisdiction of a district courtroom, without which information technology is powerless to proceed to an adjudication.'half-dozen When a non-resident defendant challenges personal jurisdiction in a motion to dismiss, the plaintiff bears the brunt of proving that personal jurisdiction exists.seven If the district courtroom rules on the move without an evidentiary hearing, equally in this case, the plaintiff demand merely make a prima facie showing of personal jurisdiction.8 In determining whether the plaintiff has fabricated a prima facie showing of personal jurisdiction, the district court must take the allegations of the complaint as true, except as controverted past opposing affidavits, and all conflicts in the facts must be resolved in favor of plaintiffs.9 Thus, the district court may consider matters exterior the complaint, including affidavits, when determining whether personal jurisdiction exists.10
To exercise personal jurisdiction over a non-resident accused, two requirements must be satisfied. "Kickoff, the forum state'southward long-arm statute must confer personal jurisdiction. Second, the practise of jurisdiction must not exceed the boundaries of the Due Procedure Clause of the Fourteenth Amendment."11 Because Louisiana'south long-arm statute confers personal jurisdiction to the limits of constitutional due process, these two inquiries go i and the same.12
The Due Process Clause of the Fourteenth Amendment "operates to limit the power of a State to affirm in personam jurisdiction over a nonresident accused."13 For a court'south exercise of personal jurisdiction over a not-resident defendant to be ramble under the Due Process Clause, (1) "that defendant [must have] purposefully availed himself of the benefits and protections of the forum state by establishing 'minimum contacts' with the forum state; and (2) the exercise of jurisdiction over that accused [must] not offend 'traditional notions of fair play and substantial justice.'"fourteen The "minimum contacts" test takes ii forms, depending on the blazon of jurisdiction the court seeks to exercise over the defendant: full general jurisdiction or specific jurisdiction. In addition, the Federal Rules of Civil Process provide for a third form of personal jurisdiction in cases arising under federal constabulary known as Rule 4(k)(two) jurisdiction.
Three. Rule 12(b)(half-dozen)
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss a complaint, or any function of it, for failure to land a claim upon which relief may be granted if the plaintiff has non set along factual allegations in back up of his claim that would entitle him to relief.15 "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as truthful, to 'state a merits to relief that is plausible on its face.'"16 "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the accused is liable for the misconduct alleged."17
The court, however, does not take as truthful legal conclusions or mere conclusory statements, and "conclusory allegations or legal conclusions masquerading equally factual conclusions will not suffice to forbid a motion to dismiss."18 "Threadbare recitals of elements of a cause of action, supported by mere conclusory statements" or "naked assertions devoid of further factual enhancement" are not sufficient.19
In summary, "factual allegations must be plenty to raise a right to relief above the speculative level."20 "Where the well-pleaded facts exercise not allow the court to infer more the mere possibility of misconduct, the complaint has alleged—but information technology has not shown'—that the pleader is entitled to relief."21; "Dismissal is appropriate when the complaint 'on its face shows a bar to relief.'"22
IV. Subject Matter Jurisdiction
Federal court complaints assert discipline matter jurisdiction under 28 UsC. § 1331 ("federal question" jurisdiction), 28 U.Southward.C. § 1332 ("multifariousness of citizenship" jurisdiction), or 28 U.S.C. § 1333 ("admiralty or maritime" jurisdiction).
A claim under the Jones Deed is a federal question.23 To establish federal question jurisdiction based on the Jones Deed,24 a plaintiff must criminate a colorable Jones Human action claim.25 In order to accomplish this, plaintiff must allege (1) he was employed as a seaman connected to a vessel; (two) he was injured in the form of his employment; and (three) his employer's negligence acquired his injury.26 Whether or not Plaintiff'south claims are supported by the facts is not the inquiry when determining bailiwick thing jurisdiction.27 A federal court has field of study matter jurisdiction over a Jones Act claim then long as the plaintiff has properly "declared each of the elements."28
The test for seaman condition under the Jones Act is well established in this excursion.29 The plaintiff must found (1) that he was assigned permanently to, or performs a substantial part of his work on, (2) a vessel in navigation and (3) that the capacity in which he is employed, or the duty which he performs, contributes to the function of the vessel or the accomplishment of its mission.30 "A seaman does non lose his status because he is temporarily assigned by his employer to duties off his vessel."31
V. General jurisdiction.
A court may exercise full general jurisdiction over a non-resident defendant when that defendant's contacts with the forum country are "continuous and systematic," regardless of whether such contacts are related to the plaintiff'south crusade of activeness.32 Stated differently, "[g]eneral jurisdiction will attach, even if the act or transaction sued upon is unrelated to the accused's contacts with the forum state, if the accused has engaged in 'continuous and systematic' activities in the forum country."33 The Supreme Courtroom has explained, "for an individual, the paradigm forum for the practice of general jurisdiction is the individual's domicile; for a corporation it is an equivalent place, ane in which the corporation is fairly regarded as at domicile."34 That is, the corporation must accept substantial, continuous, and systematic contacts with the forum state so as to "return [it] essentially at domicile in the forum land.35 Generally, however, it is "incredibly hard to establish full general jurisdiction in a forum other than the place of incorporation or primary identify of business.36
To make a prima facie showing of full general jurisdiction, Plaintiff must produce evidence that affirmatively shows that the accused'due south contacts with the forum country are sufficient to satisfy due procedure requirements.37 A defendant's unrelated contacts must exist so substantial, continuous and systematic so as to return information technology essentially at domicile in Louisiana.38
Half dozen. Specific jurisdiction.
When the defendant's contacts are less pervasive, a court may exercise specific jurisdiction over a non-resident accused "in a suit arising out of or related to the defendant'southward contacts with the forum."39 Specific jurisdiction exists, for case, where a not-resident accused "has 'purposefully directed its activities at the forum land and the litigation results from alleged injuries that ascend out of or relate to those activities.'"forty Specific jurisdiction also exists where a non-resident defendant "purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws."41 "The not-resident's 'purposeful availment' must exist such that the accused 'should reasonably conceptualize being haled into court' in the forum country."42
The Fifth Circuit established a three-gene analysis to guide courts in assessing the presence of specific personal jurisdiction:
(1) Whether the defendant has minimum contacts with the forum country, i.e., whether information technology purposely directed its activities toward the forum country or purposely availed itself of the privileges of conducting activities at that place;
(two) Whether the plaintiff's cause of activeness arises out of or results from the defendant'due south forum-related contacts; and
(iii) Whether the exercise of personal jurisdiction is fair and reasonable.43
To brand a prima facie showing of specific personal jurisdiction, the plaintiff need only satisfy the kickoff two factors.44 If the plaintiff makes a prima facie showing, the burden of proof with respect to the third factor shifts to the defendant to "present a compelling case that the presence of some other considerations would render jurisdiction unreasonable."45
"Although jurisdictional allegations must exist accepted as true, such acceptance does not automatically mean that a prima facie case for specific jurisdiction has been presented."46 Establishing a prima facie case notwithstanding requires the plaintiff to show the nonresident accused's purposeful availment of the benefits and protections of and minimum contacts with the forum state.47 A commune court need non credit conclusory allegations, even if uncontroverted.48 Plaintiff may be required to produce evidence affirmatively demonstrating the defendant'due south purposeful availment of the benefits and protections of and minimum contacts with the forum state.49 If plaintiff does not allege that the injuries leading to his litigation occurred in the forum state, a court may have specific jurisdiction over a tort only if the plaintiff proves that his injuries arise out of or outcome from the defendant's purposefully directed activities toward the forum state.50
VII. Fed. R. Civ. P. 4(k)(ii)
If there is neither general nor specific jurisdiction, at that place nevertheless might be jurisdiction nether Fed. R. Civ. P. 4(g)(2), which provides:
For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:
(A) the defendant is non subject to jurisdiction in whatsoever state'due south court of general jurisdiction; and
(B) exercising jurisdiction is consistent with the United States Constitution and laws.
The Rule was enacted to fill an important gap in the jurisdiction of federal courts in cases arising under federal law:
Thus, there was a gap in the courts' jurisdiction: while a defendant may have sufficient contacts with the U.s.a. every bit a whole to satisfy due process concerns, if she had insufficient contacts with whatsoever single state; she would not be amendable to service past a federal court sitting in that state . . . Rule 4(k)(2) was adopted in response to this problem of a gap in the courts' jurisdiction . . . 51 "The Fifth Circuit has adopted the burden-shifting framework adopted by the United Country Courtroom of Appeals for the Seventh Excursion."52 Under this framework:
The Plaintiff must make a prima facie instance that the dominion applies by "showing (i) that the claim asserted arises under federal police force, (2) that personal jurisdiction is not available under whatsoever state of affairs-specific federal statue, and (three) that the putative defendant's contacts with the nation as a whole suffice to satisfy the applicable constitutional requirements. Additionally, the plaintiff must certify that, based on the data that is readily bachelor to the plaintiff and his counsel, the defendant is non subject to arrange in the courts of general jurisdiction of whatsoever state. One time plaintiff has made a prima facie case, and then the burden shifts to the defendant to produce evidence that demonstrates that it is subject to jurisdiction in another state and/or that information technology has insufficient contacts with the United States as a whole."53
The Fifth Circuit has concluded that cases falling nether a federal courtroom's admiralty jurisdiction are "merits[s] arising under federal law" for the purpose of Rule 4(k)(2).54 Therefore, Dominion 4(thousand)(2) applies if plaintiff tin demonstrate that "(ane) the defendant in question is not subject to the general jurisdiction of any other state, and (2) that exercising jurisdiction is consequent with the due procedure clause of the Fifth Amendment, pregnant that the accused has sufficient minimum contacts with the Us as a whole.55
"The 5th Circuit has held that a 'piecemeal analysis of the beingness vel non of jurisdiction in all fifty states is non necessary. Rather, so long as a defendant does not concede jurisdiction in another state, a court may use 4(thousand)(2) to confer jurisdiction.'"56 "If . . . the defendant contends that he cannot be sued in the forum state and refuses to identify any other where arrange is possible, and so the federal court is entitled to use Dominion 4(thousand)(2)."57
This was precisely the example in O'Berry v. Ensco PLC, et al., No. xvi-3569 (E.D.La.), a Jones Human activity example Lamothe Law Firm, LLC has awaiting before Judge Susie Morgan of the Eastern District. At that place, Ensco PLC stated in pleadings:
"In this case, there is no basis for jurisdiction in any specific District Court because [it does] not have any contact with the United States and [is a] foreign corporation [] that maintain[due south] all of [its] activities overseas."
Gauge Morgan institute that this statement was "…. sufficient to show the ENSCO plc has not conceded information technology is discipline to the general jurisdiction of any state." March xx, 2017 Order and Reasons (Rec. Physician. 79 at p. 16). Discovery then revealed that iii Ensco PLC senior vice-presidents lived and worked in Houston, and that information technology also maintained its western hemisphere operations office in Houston.58 Consequently, at p. 17 of her Order and Reasons, Judge Morgan held:
"The Court finds that ENSCO plc has sufficient contacts with the United States every bit a whole such that exercising jurisdiction over ENSCO plc pursuant to Rule 4(k)(2) of the Federal Rules of Civil Procedure does not exceed the boundaries of the due process clause of the Fourteenth Amendment."
VIII. An unusual side benefit of Rule 4(k)(2) jurisdiction?
I've mulled this over a bit, but my conclusion is likely true. Whereas venue in a federal court lawsuit is normally controlled by the provisions of 28 U.S.C. § 1391(b)(1) and (two)59, Dominion 4(k)(2) jurisdiction seems to manipulate with § 1391. Why? Because the target accused denies beingness subject to jurisdiction in any land'southward court of general jurisdiction, thus when plaintiff chooses the venue, the courtroom looks for "contacts with the Usa equally a whole."sixty My belief is that a foreign corporation which is subject to Rule 4(chiliad)(2) jurisdiction here is likewise subject field to jurisdiction in any other U.Southward. district court.
1 In re FEMA Trailer Formaldehyde Products Liability Litigation, 668 F.3d 281, 286 *(5th Cir. 2012).
ii Come across Fed. R. Civ. P. 12(b)(1).
3 Home Builders Clan of Mississippi, Inc., v. City of Madison,143 F.3d 1006, 1010 (vth Cir. 1998).
4 In re FEMA, 668 F.3d at 287.
5 Valdery v. Louisiana Workforce Commission, 2015 WL 5307390 (E.D. La. Sept. x, 2015).
6 Anderson v. GlobalSantaFe Offshore Services, Inc., 924 F.Supp.2d 738, 742 (E.D. La. 2013) (quoting Rhurgas AG 5. Marathon Oil Co., 526 U.Due south. 574, 583 (1999)).
vii Luv Due north' Care, Ltd. V. Insta-Mix, Inc., 438 F.3d 465, 469 (vth Cir. 2006)(citing Wyatt five. Kaplan, 686 F.2d 276, 280 (5thursday Cir. 1982)).
8 See id.
9 Id. Meet also Thompson v. Chrysler Motors Corp., 755 F.second 1162, 1165 (5th Cir. 1985).
10 Jobe v. ATR Mktg., Inc., 87 F.3d 751, 753 (5th Cir. 1996).
11 Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 270 (5th Cir. 2006).
12 Luv N' Care, 438 F.3d at 469; La. R.S. thirteen:3201(B).
13 Helicopteros Nacionales de Colombia, S.A. 5. Hall, 466 U.S. 408, 413-xiv (1984).
xiv Latshaw v. Johnson, 167 F.3d 208, 211 (5th Cir. 1999).
15 Bong Atl. Corp. Five. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (fiveth Cir. 2007).
16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Twombly, 550 U.Southward. at 570).
17 Id.
xviii S. Christian Leadership Briefing v. Supreme Court of the State of Louisiana, 252 F.3d 781, 786 (fiveth Cir. 2001)(citing Fernandez-Montes v. Allied Pilots Ass'north, 987 F.second 278, 284 (vth Cir. 1993)).
19 Iqbal, 556 U.Due south. at 663.
20 Twombly, 550 U.Southward. at 555.
21 Id. (Quoting Fed. R. Civ. P. 8(a)(2)).
22 Cutrer 5. McMillian, 308 F.App'x 819, 820 (5th Cir. 2009)(per curiam).
23 World Tanker Carriers Corp. 5. M/V Mawlaya, 99 F.3d 717, 723 (fiveth Cir. 1996); Run across 1 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 6-20 (fiveThursday ed. 2011).
24 46 UsC. § 30104, et seq..
25 Halloway v. Pagan River Dockside Sweafood, Inc., 2002 WL 31741211 (East.D. La. Dec. 5, 2002).
26 Come across, east.g., id.
27 See Holloway, 669 F.3d at 448.
28 See id. At 453.
29 Smith v. Odom Offshore Surveys, Inc., 791 F.2d 411, 415 (5th Cir. 1986).
30 Barrett v. Chevron, UsA., 781 F.2d 1067, 1072-73 (5th Cir. 1986).
31 Smith 791 F.second at 415 (citing Guidry v. S Louisiana Contractors, Inc., 614 F.2d 337, 353 (5th Cir. 1980)("[H]ow long a seaman's condition continues after a shoreside assignment is itself a fact question dependent on such factors equally the duration of the assignment, it's relationship to his employer's business, whether the employee was free to accept or pass up information technology without endangering his employment condition, and whatever other factors relevant to the ultimate inquiry."). Run across also Nunez v. Offshore Marine Contractors, Inc., 2013 WL 12106126 (South.D. Tex. Dec. 9, 2013) (denying defendant'south motion for summary judgment regarding ane of plaintiff's Jones Human activity claims relatd to an injury that occurred during a training practise.).
32 Helicopeteros Nacionales, 466 U.S. at 413-xiv.
33 721 Bourbon, Inc. v. Business firm of Auth., L.50.C., 140 F.Supp. 3rd 586, 592 (East.D. La. 2015).
34 Goodyear Dunlop Tires Operations, South.A. v. Brownish, 564 U.S. 915, 924 (2011).
35 Daimler AG v. Bauman, ___ U.South. ___, 134 South.Ct. 746, 754 (2014).
36 Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014) (citing Daimler AG, 134 Due south.Ct. At 760; Helicopteros Nacionales, 466 U.South. at 411-12).
37 Alpine View Co., Ltd. five. Atlas Copco AB, 205 F.3d 208, 217 (fiveth Cir. 2000).
38 Encounter id.; Daimler AG, 134 Due south.Ct. at 760.
39 Luv Due north' Care, 438 F.3d at 469.
40 Panda Brandywine Corp. v. Potomac Elec. Ability Co., 253 F.3d 865, 868 (5th Cir. 2001)(quoting Alpine View Co., Ltd. v. Atlas Copco AB, 205 F.3d 208, 215 (vth Cir. 2000)).
41 Burger King Corp. five. Rudzewicz, 471 U.S. 462, 475 (1985) (citing Hansen 5. Denckla,357 U.South. 235, 253 (1958)).
42 Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 419 (vthursday Cir. 1993) (quoting Earth-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)).
43 Nuovo Pignone SpA five. STORMAN ASIA Thou/V, 310 F.3d 374, 378 (5thursday Cir. 2002); Luv N' Care, 438 F.3d at 469.
44 Athletic Training Innovations, LLC 5. eTagz, Inc., 955 F.Supp.2nd 602, 613 (East.D. La. 2013)
45 Autogenomics, Inc. v. Oxford Gene Tech., 566 F.3d 1012, 1018-19 (Fed. Cir. 2009); Athletic Grooming Innovations, 955 F.Supp.2d at 613.
46 Panda Brandywine Corp., 253 F.3d at 868.
47 Id. (Citing Burger King, 471 U.Southward. at 474 ("The constitutional touchstone remains whether the defendant purposefully established 'minimum contacts' in the forum land.")).
48 Id.at 869 (citing Felch v. Transportes Lar-Mex, 92 F.3d 320, 326 (vth Cir. 1996)).subject to jurisdiction in any state'due south court of full general jurisdiction
49 Id.
50 Anderson, 924 F.Supp.2d at 745.
51 Adams v. Unione Mediterranea DiSicurta, 364 F.3d 646, 650-51 (vth Cir. 2004) (quoting World Tanker Carriers Corp. v. Thousand/V Mawlaya, 99 F.3d 717, 721-22 (5thursday Cir. 1996)).
52 Johnson v. PPI Technology Services, L.P., 926 F.Supp.2d 873, 883-83 (E.D. La.
2013) (citing ISI Int'50 Inc. five. Borden Ladner Gervais, LLP, 226 F.3d 648 (7th Cir. 2001)).
53 Id. at 883 (citing United States v. Swiss American Bank
54 World Tanker Carriers Corp., 99 F.3d at 723.
55 Johnson, 926 F.Supp.2nd at 882 (citing Adams, 364 F.3d at 651).
56 Ogden 5. GlobalSantaFe Offshore Services, 31 F.Supp.3d 832, 839-xl (Eastward.D. La. 2014) (quoting Adams, 364 F.3d at 651).
57 Id. at 840. See also Johnson, 926 F.Supp.2d at 884-85.
58 Compare O'Berry to Patterson v. Aker Solutions Inc., 826 F.3d 231 (5thursday Cir. 2016) where the U.S. 5th Circuit affirmed a Western District denial of Rule 4(thou)(2) jurisdiction. The Fifth Circuit focused on the sufficiency of the defendant's continuous and systematic contacts with the Usa, and found that sending 11 employees over a brief period does not rise to the level of making a defendant "at home" in the United States. In O'Drupe, three Ensco senior vice-presidents, including the senior vice-president for western hemisphere operations and the senior vice-president for human being resource lived in Houston on a long-term basis. In fact, the three were each served with copies of the summons and complaint at their residences.
59 E.g, a judicial district in which any accused resides, or a judicial district in which a substantial office of the events or omissions giving rise to the claim occurred.
60 I could not have made upwards the following facts if I was writing an Admiralty exam at Tulane Constabulary School. In O'Berry, plaintiff was a Mississippi resident citizen who filed suit in the Eastern District. He alleged Ensco PLC, a British plc, was a co-Jones Act employer with Ensco Express, a Cayman Islands visitor, which "admits" it is plaintiff's Jones Act employer. Mr. O'Berry was assigned to the ENSCO 88, a Liberian flagged jack-upwards drilling vessel operating off Kingdom of saudi arabia. The vessel is owned past Ensco Offshore International, Inc., some other Cayman Islands-based Ensco company. He had been transferred on newspaper from Ensco Offshore Inc., a Delaware corporation which drills in the Gulf of United mexican states. He was injured in a swimming pool in Saudi Arabia while attending a mandatory helicopter escape-at-body of water training form taught by SMTP Global, a Malaysian company acting as Ensco Limited'due south amanuensis. O'Berry's human resource needs were handled in Houston by Ensco Incorporated, a Texas corporation, and his grouping health and disability insurance policies were held by Ensco International, Inc., a Delaware corporation.
Source: https://lamothefirm.com/2017/05/25/federal-court-motions-to-dismiss-and-the-standard-for-overcoming-them/
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