# Baker v. Nationwide Assurance Co

> District Court, W.D. Louisiana · January 9, 2024

URL: https://www.frixlaw.com/law-library/cases/10195998

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** January 9, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

MICHAEL BAKER CASE NO. 2:23-CV-00841

VERSUS JUDGE JAMES D. CAIN, JR.

NATIONWIDE ASSURANCE CO ET AL MAGISTRATE JUDGE KAY

MEMORANDUM RULING

Before the court is a Motion to Dismiss [doc. 25] filed pursuant to Federal Rule of
Civil Procedure 12(b)(2) by defendant Jesus Ayala. The motion is regarded as unopposed.
I.
BACKGROUND

This suit arises from a motor vehicle accident that occurred on or about March 2,
2023. On that date, plaintiff alleges, he was traveling northbound on Louisiana Highway
111 in Beauregard Parish when he was involved in a hit-and-run accident with a pickup
truck driven by an unknown individual as it merged from the shoulder onto the highway.1
Doc. 1, att. 1. Plaintiff also alleged that the driver was employed by and acting within the
scope of his employment with “JESUS AYALA, JR., individually and d/b/a AYALA
BORING CONSTRUCTION, INC.,” and/or “LEO PATINO D/B/A AMERICAN
DRILLING INC.” Id. Accordingly, he filed suit in the 36th Judicial District Court,
Beauregard Parish, Louisiana, on May 12, 2023, raising claims against Ayala and Patino

1 Plaintiff asserts that the vehicle was disabled in the crash, leaving the VIN and license plate evidence available to
trace back to Ayala as the owner. Doc. 18, p. 2.
individually and as representatives of their respective companies, the “John Doe” driver,
and Nationwide Assurance Company as the alleged insurer of Ayala and/or Patino. Id.

Nationwide removed the suit to this court on the basis of diversity jurisdiction, 28
U.S.C. § 1332. Doc. 1. Ayala and Patino brought a motion to dismiss for insufficient
service, which the court denied based on a finding of good cause for plaintiff’s inability to
locate the defendants’ correct addresses. Doc. 19. The court further ordered Nationwide’s
attorney to provide correct addresses to plaintiff. Id. Ayala and Patino have now been
served, and Ayala brings this motion to dismiss the claims against him for lack of personal

jurisdiction under Federal Rule of Civil Procedure 12(b)(2). Doc. 25. Specifically, he
argues that he is a Texas resident who is the sole member of JKL Directional Drilling, LLC
(“JKL”), a Texas company that was acting as subcontractor on a job running fiber optic
cable in Southwest Louisiana at the time of the accident. Ayala further avers that he was
never actually in Louisiana on the job, that he did not direct the day laborer to drive the

truck, and that he had no role in the incident beyond company owner. Plaintiff has filed no
response within the time set out by the court’s notice of motion setting and the motion is
therefore regarded as unopposed.
II.
LAW & APPLICATION

A. Legal Standards
On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2), the plaintiff
bears the burden of establishing the court’s jurisdiction over a nonresident defendant. E.g.,
Ham v. La Cienega Music Co., 4 F.3d 413, 415 (5th Cir. 1993). The court may determine
jurisdictional issues through evidence outside the pleadings. Stuart v. Spademan, 772 F.2d
1185, 1192 (5th Cir. 1985); Quick Techs., Inc. v. Sage Grp. PLC, 313 F.3d 338, 343 (5th

Cir. 2002). Uncontroverted allegations in the pleadings must be taken as true, however,
and conflicts in the parties’ affidavits must be resolved in plaintiff’s favor. Bullion v.
Gillespie, 895 F.2d 213, 217 (5th Cir. 1990). After plaintiff has made a prima facie case,
the burden shifts to the defendant to present “a compelling case that the presence of some
other consideration would render jurisdiction unreasonable.” Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475 (1985).

Personal jurisdiction over a defendant exists if (1) the forum state’s long-arm statute
extends to the defendant, and (2) the exercise of such jurisdiction is consistent with due
process. Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 609 (5th Cir. 2008).
Louisiana’s long-arm statute extends as far as permitted by due process, merging these two
factors. Rainey v. J&S Truck Sales, LLC, 614 F.Supp.3d 293, 299 (M.D. La. 2022) (citing

Petroleum Helicopters, Inc. v. Avco Corp., 834 F.2d 510, 512 (5th Cir. 1987)). The exercise
of personal jurisdiction over a defendant comports with due process only if (1) the
defendant has purposefully availed himself of the protections of the forum state by
establishing “minimum contacts” therewith and (2) the exercise of personal jurisdiction
over the defendant does not offend traditional notions of fair play and substantial justice.

Allred v. Moore & Peterson, 117 F.3d 278, 285 (5th Cir. 1997).
Minimum contacts may be established through either general or specific
jurisdiction. Ford v. Mentor Worldwide, LLC, 2 F.Supp.3d 898, 903 (E.D. La. 2014).
General jurisdiction arises from “continuous and systematic” contacts with the forum state,
even when the cause of action bears no relation to those contacts. Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 414–16 (1984). Specific jurisdiction, on the other

hand, is case-linked and confined 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).
Only specific personal jurisdiction is at issue here. In the Fifth Circuit, courts
evaluate the issue with a three-step analysis. Deep South Comms., LLC v. Fellegy, 652
F.Supp.3d 636, 652 (M.D. La. 2023) (citing Pignone v. STORMAN ASIA M/V, 310 F.3d

374, 378 (5th Cir. 2002)). First, the court determines whether minimum contacts exist
between the defendant and the forum state. Then the court considers whether the cause of
action “arises out of or results from the defendant’s forum-related contacts.” Id. Finally, if
the plaintiff satisfies the first two prongs, the burden shifts to the defendant to defeat
jurisdiction by showing that an exercise thereof “would be unfair or unreasonable.” Id.

(quoting Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 271 (5th Cir. 2006)).
B. Application
Plaintiff alleges, in relevant part, that John Doe was acting in the course and scope
of his employment with Patino, d/b/a Ayala Boring Construction, Inc. at the time of the
accident. Doc. 1, att. 1, p. 5. Ayala responds with an affidavit, in which he states the

following: (1) he is a Texas resident and JKL is a Texas LLC of which he is sole member;
(2) he signed a contract with GulfGate Construction in December 2022 to be a
subcontractor on its job laying fiber optic cable in Louisiana; (3) he did not go to Louisiana
in connection with this job and instead sent Patino to run the job; and (4) he had no personal
involvement of the job and thus no personal knowledge of the facts and circumstances
surrounding the motor vehicle accident. Doc. 25, att. 3. In an accompanying 12(b)(2)

motion Patino has also provided an affidavit, stating in relevant part: (1) at the time of the
accident, he was running this job for JKL; (2) he had left the job site to return to Texas
when the accident occurred; and (3) he had not directed the day laborer to drive the truck
and does not know why he was driving it. Doc. 24, att. 3.
Patino and Ayala’s uncontroverted affidavits would appear to defeat any claim of
vicarious liability, as they show that John Doe was not acting within the course and scope

of his employment with JKL when the accident occurred. These issues go to the merits of
plaintiff’s cause of action. The Fifth Circuit has recognized, however, that when personal
jurisdiction is based on the commission of a tort in the forum state, “the jurisdictional
question involves some of the same issues as the merits of the case, and the plaintiff must
make a prima facie case on the merits to withstand a motion to dismiss under rule 12(b)(2).”

Wyatt v. Kaplan, 686 F.2d 276, 280 (5th Cir. 1982). Based on the record before the court,
plaintiff has not made out a prima facie case of showing a tort committed by Patino within
this state. Accordingly, the court has no basis for exercising personal jurisdiction over him.
Il.
CONCLUSION
For the reasons stated above, the Motion to Dismiss [doc. 25] will be GRANTED
and all claims against defendant Jesus Ayala will be DISMISSED WITHOUT
PREJUDICE.
THUS DONE AND SIGNED in Chambers on the 8th day of January, 2024.
. = JAMES D. CAIN, TR C .
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10195998. Public record. Not legal advice.