The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TERRY BONDURANT CIVIL ACTION
VERSUS No.: 19-10693
3M COMPANY, ET AL. SECTION: “J”(5)
ORDER & REASONS
Before the Court is a Motion to Dismiss for Lack of Personal Jurisdiction (Rec.
Doc. 61) filed by Defendant Gould Electronics Inc. (“Gould”) and an opposition
thereto (Rec. Doc. 65) filed by Plaintiff. Having considered the motion and legal
memoranda, the record, and the applicable law, the Court finds that the motion
should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This litigation arises from personal injuries allegedly sustained because of
exposure to asbestos. Plaintiff Terry L. BonDurant alleges that he contracted
mesothelioma as a result of being exposed to asbestos in connection with his work as
an electrician at various refineries and chemical plants in Louisiana, Texas and
Florida between 1964 and 1979. Plaintiff brings claims for general negligence,
negligence and strict liability against Gould as a seller, supplier, distributor or
manufacturer of equipment; however, Plaintiff did not indicate in his deposition
testimony a specific place, date, or time that he was exposed to asbestos while
working with or around Gould’s products.1
Gould’s precursor entities sold and manufactured electrical products
throughout the United States.2 Gould’s place of incorporation and principal place of
business are in Arizona.3
Plaintiff initially filed suit in Orleans Parish Civil District Court on March 1,
2019. The case was removed to this Court on May 24, 2019. Plaintiff served Gould on
July 29, 2019,4 and Defendant filed the instant motion on August 15, 2019.5
Gould asserts the Court lacks general jurisdiction over it because neither its
principal place of business nor place of incorporation are in Louisiana. Further, Gould
contends that the Court lacks specific jurisdiction over it because Plaintiff’s alleged
exposure to Gould’s products only occurred in Texas. Additionally, Gould moves to
dismiss all claims against it for insufficient service of process, asserting that Plaintiff
cannot establish good cause for his failure to serve Gould until almost five months
after he filed his original petition.
Plaintiff argues that the Court has personal jurisdiction over Gould because it
sold, distributed, and marketed its products in Louisiana and he was exposed to
asbestos from Defendant’s products while working in Louisiana. Further, Plaintiff
claims that he complied with requisite time periods for service before and after
1 (Rec. Doc. 65-3, at 4-5).
2 (Rec. Doc. 61, at 2).
3 Id.
4 (Rec. Doc. 64).
5 (Rec. Doc. 61).
removal. In the alternative, Plaintiff requests an opportunity for jurisdictional
discovery before Gould is dismissed from the case.
LEGAL STANDARD
Rule 12(b)(2) of the Federal Rules of Civil Procedure permits dismissal of a suit
for lack of personal jurisdiction. “Where a defendant challenges personal jurisdiction,
the party seeking to invoke the power of the court bears the burden of proving that
jurisdiction exists.” Luv N’ care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir.
2006). However, the plaintiff is not required to establish jurisdiction by a
preponderance of the evidence; a prima facie showing is sufficient. Id. The court must
accept the plaintiff’s uncontroverted allegations and resolve all conflicts between the
facts contained in the parties’ affidavits and other documentation in favor of
jurisdiction. Id.
A federal court sitting in diversity must satisfy two requirements to exercise
personal jurisdiction over a nonresident defendant. Pervasive Software Inc. v.
Lexware GmbH & Co. KG, 688 F.3d 214, 220 (5th Cir. 2012). “First, the forum state’s
long-arm statute must confer personal jurisdiction. Second, the exercise of
jurisdiction must not exceed the boundaries of the Due Process Clause of the
Fourteenth Amendment.” Id. The limits of the Louisiana long-arm statute are
coextensive with constitutional due process limits. Jackson v. Tanfoglio Giuseppe,
SRL, 615 F.3d 579, 584 (5th Cir. 2010). Accordingly, the inquiry here is whether the
jurisdiction comports with federal constitutional guarantees. See id.
The Due Process Clause of the Fourteenth Amendment guarantees that no
federal court may assume personal jurisdiction of a non-resident defendant unless
the defendant has certain “minimum contacts with [the forum state] such that the
maintenance of the suit does not offend ‘traditional notions of fair play and
substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citation
omitted). The Supreme Court has recognized two types of personal jurisdiction:
specific and general. Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1173,
1779-80 (2017).
Specific jurisdiction is limited to “adjudication of issues deriving from, or
connected with, the very controversy that establishes jurisdiction.” Goodyear Dunlop
Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (internal quotation marks
and citation omitted). To establish specific jurisdiction, a plaintiff must show that (1)
there are sufficient pre-litigation contacts between the defendant and the forum that
are not random, fortuitous, or attenuated, (2) the defendant purposefully established
the contacts, and (3) “the plaintiff’s cause of action arises out of or is related to the
defendant’s forum contacts.” Pervasive Software, 688 F.3d at 221 (internal quotation
marks and citation omitted). The defendant can then defeat the exercise of specific
jurisdiction by showing that it would be unreasonable. Id. at 221-22.
DISCUSSION
As Plaintiff does not argue that the Court has general jurisdiction over Gould,
the Court will consider only whether specific jurisdiction exists. Plaintiff contends
that it does because Gould “sold, distributed, and/or installed the aforementioned
asbestos-containing products in Louisiana or . . . placed the same into the stream of
commerce for use in Louisiana” and he was exposed to asbestos while working with
and around Gould products in Louisiana.6
Even assuming that Gould has sufficient minimum contacts with Louisiana,
see Luv N’ care, 438 F.3d at 470, Plaintiff has failed to establish that his cause of
action arises out of Gould’s contacts with Louisiana. Specifically, Plaintiff’s
allegations that he was exposed to asbestos while working around Gould products in
Louisiana are undercut by his deposition testimony that he submitted in support of
his opposition to the instant motion.
Plaintiff alleges that he worked in two facilities in Louisiana: (1) Cities
Services refinery in Lake Charles, Louisiana; and (2) “a second site located on the
same road as Cities Services, but [Plaintiff] could not recall the name of the facility.”7
During his deposition, Plaintiff was asked the names of the manufacturers of the
electrical panels that he worked around at these facilities. In response to the question
about Cities Services refinery, Plaintiff testified “GE, Westinghouse, Square D,
Siemens.”8 In response to the question about the unknown facility in Lake Charles,
he testified “Square D, GE, Westinghouse, Siemens.”9 However, in response to a
question about the electrical panels he worked around at a different site, Plaintiff
responded, “GE, Westinghouse, Square D, Cutler-Hammer, Goulds.”10 The deposition
6 (Rec. Doc. 65, at 15).
7 Id. at 4.
8 (Rec. Doc. 65-2, at 15).
9 Id. at 19.
10 Id. at 3.
excerpt Plaintiff submitted does not indicate what facility he was describing with this
answer.11 In his petition, Plaintiff alleged he was exposed to asbestos while working
at two facilities in Louisiana, including Cities Services refinery in Lake Charles, and
two facilities in Texas.12 Additionally, when specifically asked about working around
Gould electrical panels, Plaintiff testified, “I have worked with them but I cannot give
you a specific place, date or time.”13
In light of the foregoing, the Court finds that Plaintiff has failed to make a
prima facie showing of jurisdiction because he has not shown that his cause of action
arises out of Gould’s contacts with Louisiana. Rather, the evidence Plaintiff
submitted supports Gould’s contention that any exposure to asbestos he experienced
from working with or around Gould products occurred in Texas, not Louisiana:
Plaintiff alleges he worked at two facilities in Louisiana but did not testify that he
worked around Gould products at those sites, yet he did testify that he worked around
Gould products at a third, unidentified site. Because Plaintiff alleges that he was
exposed to asbestos while working at two facilities in Louisiana and two facilities in
Texas, it is reasonable to conclude that this third, unidentified site was in Texas, not
Louisiana, as Plaintiff has failed to present any evidence to the contrary.
Finally, jurisdictional discovery is not required, as Plaintiff has failed to make
a preliminary showing of jurisdiction. See Fielding v. Hubert Burda Media, Inc., 415
F.3d 419, 429 (5th Cir. 2005). “A district court is not required to defer ruling on a
11 The question posed to Plaintiff was, “Do you know any of the brand names of the electrical panels
at this particular job?” Id.
12 (Rec. Doc. 1-4, at 4).
13 (Rec. Doc. 65-3, at 5).
jurisdictional motion until all discovery contemplated by the plaintiff has been
accomplished; instead, an opportunity for discovery is required.” Kelly v. Syria Shell
Petroleum Dev. B.V., 213 F.3d 841, 855 (5th Cir. 2000). Plaintiff has had an
opportunity for discovery and fails to allege with reasonable particularity the facts
that additional discovery is likely to uncover that would support the exercise of
jurisdiction over Gould, as his allegations and testimony tend to exclude the
possibility that he was exposed to asbestos from Gould products in Louisiana. See
Fielding, 415 F.3d 429. Thus, the Court denies further jurisdictional discovery.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the Defendant’s Motion to Dismiss for Lack
of Personal Jurisdiction (Rec. Doc. 61) is GRANTED, and Plaintiffs claims against
Defendant Gould Electronics, Inc. are DISMISSED WITHOUT PREJUDICE.
New Orleans, Louisiana, this 7th day of October, 2019.
DK (Saha
AN KK (_/
CARL J. STH RV
UNITED STATES DISTRICT JUDGE