Croom v. Bristow Group Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BRENNA CROOM

CIVIL ACTION

VERSUS

NO. 2:23-cv-5092

BRISTOW GROUP INC., ERA

HELICOPTERS, LLC,

JUDGE GUIDRY

AGUSTAWESTLAND

PHILADELPHIA

MAGISTRATE CURRAULT

CORPORATION, and

LEONARDO S.p.A.

ORDER

Before the Court is Defendant Leonardo S.p.A.’s (“Leonardo”) Motion to Dismiss

pursuant to Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction. R. Doc. 47. For the

following reasons, the motion is DENIED without prejudice, with leave to re-file after limited

jurisdictional discovery is completed.

BACKGROUND1

This products liability and admiralty case arises out of injuries Plaintiff, Brenna Croom,

(“Plaintiff”) allegedly suffered during an emergency landing at Houma-Terrebonne Airport

aboard an Augusta AW139 Helicopter (“Subject Helicopter”). See generally R. Doc. 5. Among

other claims, Plaintiff makes claims under the General Maritime Law of the United States and

the Louisiana Products Liability Act against Leonardo and AgustaWestland Philadelphia

Corporation (“AWPC”). Id. Plaintiff alleges Leonardo, AWPC, and former defendant Leonardo

1 For purposes of this motion, the Court accepts “plaintiff’s uncontroverted nonconclusional

factual allegations as true and resolves all controverted allegations in the plaintiff’s favor.”

Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 868 (5th Cir. 2001).

Helicopters USA, Inc., (“Leonardo Helicopters”) “designed, assembled, built, manufactured,

distributed and/or produced” the Subject Helicopter. Id. at ¶ 28.

Leonardo subsequently filed this Motion to Dismiss under Fed. R. Civ. P. 12(b)(2) for

lack of personal jurisdiction. R. Doc. 47. Leonardo argues this Court lacks specific or general

personal jurisdiction because its Louisiana contacts are de minimis. Id. Leonardo concedes it

designed the Subject Helicopter but avers that its designing and manufacturing activities

“related to the Subject Helicopter” occurred in Italy. Id. at 2. Leonardo also states that it did not

sell or assemble the subject helicopter and that it has no other contacts in Louisiana over the last

ten years except for two helicopter sales for a different model. See id.

Plaintiff argues she has made a prima facie case for general and specific jurisdiction in

Louisiana against Leonardo. In the alternative, she asks for leave to conduct jurisdictional

discovery. R. Doc. 60. Plaintiff argues Leonardo is subject to general jurisdiction because

Leonardo has a business presence in the state. Id. at pp. 4-7. She also argues Leonardo is

subject to specific jurisdiction because Leonardo itself has minimum contacts with Louisiana

and that “Leonardo Helicopters and/or AWPC[’s]” contacts should be imputed to Leonardo as

its alter ego. Id. at pp. 8-18, 20.

LAW & ANALYSIS

1. Legal Standard

Fed. R. Civ. P. 12(b)(2) permits dismissal of a suit for lack of personal jurisdiction.

When 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). The plaintiff need not, however, establish jurisdiction by a

preponderance of the evidence; a prima facie showing suffices. Id.

To assert personal jurisdiction, (1) the state’s long-arm statute must reach the

nonresident defendant and (2) the exercise of jurisdiction must comport with the Fourteenth

Amendment’s due process clause. Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327,

343 (5th Cir. 2004). Louisiana’s long-arm statute allows jurisdiction over nonresident

defendants up to the federal constitutional limit so these two inquiries merge. See La.R.S.

13:320. The plaintiff must show the defendant has enough “minimum contacts” with the forum

to assert either general or specific jurisdiction. See, e.g., Alpine View Co. v. Atlas Copco AB,

205 F.3d 208, 215 (5th Cir. 2000).

2. Plaintiff Fails to Allege General Jurisdiction Against Leonardo

Leonardo asserts that it is not subject to this Court’s general jurisdiction. Leonardo

argues it is not “at home” in Louisiana and this is not an exceptional case. R. Doc. 47 at 8.

Because Leonardo allegedly “has no offices, plants, facilities, officers, directors, employees,

representatives, agents, or any other permanent physical presence in Louisiana relative to the

sale, manufacture, design, maintenance or servicing of its helicopters,” there is no general

jurisdiction. Id. at p 7.

Plaintiff asserts Leonardo is subject to this Court’s general jurisdiction because it has a

“business presence” in Louisiana. R. Doc. 60 at p 5. She argues Leonardo’s business presence,

established through its subsidiary, includes “(1) [a] physical presence in Louisiana, (2) []

continually conducting substantial business in Louisiana at least since the beginning of 2019,

(3) rent[ing] or own[ing] a 20,000 square foot facility in Louisiana, (4) employ[ing] people in

Louisiana, (5) stor[ing] substantial inventory in Louisiana, and (6) offer[ing] technical support,

maintenance, and other services in Louisiana to at least 700 of its helicopters that operate in the

Gulf of Mexico region.” Id. at p 7.

A corporation is only subject to general jurisdiction where its contacts are so

“continuous and systematic” that it can be “fairly regarded as at home” in the forum state.

Torsh Inc. v. Audio Enhancement, Inc., 661 F. Supp. 3d 596, 600 (E.D. La. 2023) (citing

Daimler AG v. Bauman, 571 U.S. 117, 137, 134 S. Ct. 746, 760, 187 L. Ed. 2d 624 (2014)).2

These “all-purpose forums” are a corporation’s place of incorporation and its principal place of

business. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924, 131 S. Ct.

2846, 2854, 180 L. Ed. 2d 796 (2011). It is “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) (citing Goodyear, 564 U.S. at 924). An

“exceptional case” is required. Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th 226, 242

(5th Cir. 2022) (citing Daimler, 571 U.S. at 139 n.19).

Leonardo is not at home in Louisiana. Plaintiff offers no evidence to refute that

Leonardo “is an Italian corporation … with a principal place of business in Rome, Italy.” See R.

Doc. 47 at p 1. The present litigation is not an exceptional case.

Plaintiff also attempts to impute general jurisdiction based on Leonardo’s contacts

“through its subsidiary,” presumably AWPC or Leonardo Helicopters. R. Doc. 60 at p 10; R.

Doc. 72 at p 3.

Here, imputing subsidiary contacts for general jurisdiction fails. “Courts have long

recognized institutional independence of related corporations, such as parent and subsidiary,

when determining if one corporation's contacts with a forum can be the basis of a related

corporation's contacts.” Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 338 (5th Cir.

2 The “at home” analysis for general jurisdiction is not dependent on entity type and applies to

limited liability companies as well as corporations. See, e.g., White v. Yax Ecommerce, LLC,

2023 WL 7298938 at *4 fn.39 (citing Frank v. P N K (Lake Charles) L.L.C., 947 F.3d 331 (5th

Cir. 2020)).

1999). A party cannot typically establish general personal jurisdiction over a nonresident

corporation based on “contacts with the forum state of another [affiliated] corporate entity.”

Freudensprung, 379 F.3d at 346. Instead, agency relationships “may be relevant to [] specific

jurisdiction” where a corporation could “direct its agents or distributors to take action there.”

Daimler, 571 U.S. at 759 n.13; see also In re Chinese-Manufactured Drywall Prod. Liab. Litig.,

753 F.3d 521, 531 (5th Cir. 2014) (assigning the “significance of principal-agent relationship”

to specific jurisdiction, not general jurisdiction).

Even attributing subsidiary contacts to Leonardo, they do not establish general

jurisdiction. There is no doubt that allegedly renting a facility, having employees, and servicing

helicopters in the state are contacts. See R. Doc. 60 at p 7. However, general jurisdiction is

inherently “a comparative inquiry.” Douglass, 46 F.4th at 243. The United States is not the

center of Leonardo’s worldwide contacts. Plaintiff concedes the U.S. is only Leonardo’s third

largest revenue market. R. Doc. 72 at p 10. Moreover, there is no evidence that Leonardo or the

“Gulf of Mexico Support Center” employed corporate directors, hosted board meetings, or was

the place where any long-term corporate decision was made. Merely servicing or maintaining a

product in the forum state does not establish general jurisdiction. See Helicopteros Nacionales

de Colombia, S.A. v. Hall, 466 U.S. 408, 411, 104 S. Ct. 1868, 1870, 80 L. Ed. 2d 404 (1984).

A related entity’s act to place a product in the stream of commerce does not “warrant [] that …

the forum has general jurisdiction over a defendant.” See Goodyear, 546 U.S. at 927.

Taken together, Louisiana in comparison to other forums is not the “center of

[Leonardo’s] activities” or a “surrogate for [Leonardo’s] place of incorporation.” Douglass, 46

F.4th at 243; see also Cap. Credit Inc. v. Mainspring Am., Inc., No. A-19-CV-797-LY, 2020

WL 4043499, at *3 (W.D. Tex. July 17, 2020), report and recommendation adopted, No. 1:19-

CV-797-LY, 2020 WL 9810026 (W.D. Tex. Aug. 11, 2020). Because Louisiana is not

Leonardo’s principal place of business, state of incorporation, or the de facto center of

Leonardo’s activities, the Court cannot assert general jurisdiction over Leonardo.

3. The Court Orders Jurisdictional Discovery to Assess Leonardo’s Louisiana

Contacts for Specific Jurisdiction

a. Minimum Contacts

Leonardo asserts it does not have sufficient minimum contacts in Louisiana because it

has not “availed itself of the privileges of conducting business in Louisiana.” R. Doc. 40 at p 10.

Leonardo also alleges it has not committed “any act in, or directed toward, Louisiana” from

which Plaintiff’s claims “arise.” Id.

Plaintiff argues Leonardo has sufficient minimum contacts with Louisiana because

Leonardo placed AW139s into the stream-of-commerce without restriction. R. Doc. 60 at p 10-

12. Plaintiff attaches an alleged incomplete AW139 production list showing Leonardo

manufactured at least 12 AW139s for the Louisiana market. Id. at p 14. Alternatively, Plaintiff

asserts jurisdictional discovery will uncover “Leonardo’s relationship with AWPC [and]

Leonardo Helicopters” and Leonardo’s “awareness and knowledge of its AW139s being sold

[and] used [] in Louisiana.” Id. at pp 19-20.

“Specific personal jurisdiction is a claim-specific inquiry.” McFadin v. Gerber, 587 F.3d

753, 759 (5th Cir. 2009). The plaintiff’s claims “must arise out of or relate to the defendant’s

contacts” with the forum. Pace v. Cirrus Design Corp., 93 F.4th 879, 900 (5th Cir. 2024) (citing

International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

“The defendant must have ‘reached out beyond’ its home—by, for example, ‘exploi[ting]’ a

market in the forum State or entering a contractual relationship centered there.” Ford Motor Co.

v. Montana Eighth Jud. Dist. Ct., 592 U.S. 351, 359, 141 S. Ct. 1017, 1025, 209 L. Ed. 2d 225

(2021) (quoting Walden v. Fiore, 571 U.S. 277, 285, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014)).

The Fifth Circuit’s three-step specific jurisdiction test asks: (1) whether the defendant has

minimum contacts with the forum state, i.e., whether it purposely directed its activities toward

the forum state or purposefully availed itself of the privileges of conducting activities there

(“minimum contacts”); (2) whether the plaintiff's cause of action arises out of or results from the

defendant's forum-related contacts (“relatedness”); and (3) whether the exercise

of personal jurisdiction is fair and reasonable (“reasonableness”). E. Concrete Materials, Inc. v.

ACE Am. Ins. Co., 948 F.3d 289, 296 (5th Cir. 2020)).

The Court has wide discretion to order jurisdictional discovery. See Walk Haydel &

Associates, Inc. v. Coastal Power Production Co., 517 F.3d 235, 241 (5th Cir. 2008). But a

plaintiff needs a “preliminary showing of jurisdiction” and must allege facts that “suggest with

reasonable particularity the possible existence of requisite contacts” to sustain jurisdiction.

Fieldling v. Hubert Burda Media, Inc., 415 F.3d 419, 429 (5th Cir. 2005) (quoting Toys “R” Us,

Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir.2003)). She must assert discovery is “likely to

produce the facts needed to withstand” dismissal. Johnson v. TheHuffingtonPost.com, Inc., 21

F.4th 314, 326 (5th Cir. 2021). General averments are not sufficient. Id. The court may review

“pleadings, affidavits, interrogatories, depositions, oral testimony, exhibits, any part of the

record, and any combination thereof.” Command–Aire Corp. v. Ontario Mech. Sales & Servs.,

Inc., 963 F.2d 90, 95 (5th Cir. 1992). When there is a factual dispute, courts generally find it

appropriate to grant narrow jurisdictional discovery. See, e.g., Whitener v. Pliva, Inc., No.

CIV.A. 10-1552, 2012 WL 1343964, at *8 (E.D. La. Apr. 18, 2012), aff'd, 606 F. App'x 762 (5th

Cir. 2015).

On the present record, it is unclear whether Leonardo’s manufacturing contacts in

Louisiana are sporadic and isolated or sufficient to warrant specific jurisdiction. Compare R.

Doc. 47 (“[Leonardo] has not even sold an AW139 in Louisiana”) with R. Doc. 60 (“Leonardo

manufactures at least 12 AW139 helicopters specifically for Louisiana”). Plaintiff alleges that

three other AW139 helicopters were involved in accidents in Louisiana. See R. Doc. 60 at p 14-

15. Plaintiff also alleges that Leonardo manufactures AW139 helicopters for the United States, at

least 12 for Louisiana, without restricting sale in Louisiana. Id. A foreign manufacturer’s

agreement to have its products sold in the United States by another entity, absent restriction, with

repeated sales in the forum are sufficient minimum contacts. See, e.g., Ainsworth v. Moffett

Engineering Co., 716 F.3d 174, 179 (5th Cir. 2013). However, these contacts cannot be sporadic

and isolated.

The Fifth Circuit recently cautioned district courts against assuming personal

jurisdiction—labeling it an “evergreen problem.” Megalomedia Inc. v. Philadelphia Indemnity

Insurance Co., No. 23-20570 at *1 (5th Cir. Sep. 20, 2024). When the record does not “establish

the necessary jurisdictional facts,” jurisdictional discovery is appropriate. Id. at *3. By Plaintiff’s

own admission, the AW139 production list is “incomplete.” R. Doc. 60 at p 14. A complete

record could show: (a) Leonardo’s full production list, including when and how it manufactured

AW139s for Louisiana, (b) detailed information about Leonardo’s relationship with AWPC or

Leonardo Helicopters, indicating how helicopters were manufactured for and sold in the United

States, and (c) the value of AW139s manufactured for Louisiana as a percentage of United States

sales.

At this time, Plaintiff has presented adequate factual allegations that may support specific

personal jurisdiction. Additional discovery could show Leonardo, independently, has sufficient

minimum contacts in Louisiana. Because it is now unknown who, where, how many, the value

of, the percentage of total sales, and to whom other AW139 helicopters are manufactured for and

sold, the Court orders limited jurisdictional discovery.

b. Relatedness

Leonardo also asserts that because a third party took the Subject Helicopter into

Louisiana there cannot be specific jurisdiction. See R. Doc. 47 at p 11. Because the Subject

Helicopter was built in Pennsylvania and sold in Delaware, Plaintiff’s injuries do not “arise out

of” Leonardo’s Louisiana contacts. Id. at p 10.

However, relatedness only requires that the plaintiff’s injuries “arise out of or relate to”

the defendant’s forum state contacts. Pace, 93 F.4th at 900 (emphasis added). A non-causal

“affiliation between the forum and the underlying controversy, principally, [an] activity or an

occurrence that takes place in the forum State” is sufficient. Ford, 592 U.S. at 359 (quoting

Bristol-Myers Squibb Co. v. Superior Ct. of California, San Francisco Cnty., 582 U.S. 255, 262,

137 S. Ct. 1773, 1780, 198 L. Ed. 2d 395 (2017)).

Even though the Subject Helicopter was taken into the forum by a third-party does not

mean Leonardo, as a foreign manufacturer, failed to manufacture other AW139 helicopters for

Louisiana buyers. See, e.g., Ford, 592 U.S. at 362. Like in World-Wide Volkswagen v. Woodson,

although the trial court could not assert personal jurisdiction over an out-of-state car dealer, a

foreign manufacturer could be subject to the forum’s jurisdiction. 444 U.S. 286, 295 (1980). “[I]f

the sale of a product of a manufacturer or distributor such….is not simply an isolated occurrence,

but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the

market for its product in [several or all] other States, it is not unreasonable to subject it to suit in

one of those States if its allegedly defective merchandise has there been the source of injury to its

owner or to others.” Ford, 592 U.S. at 363 (quoting id.). Should discovery reveal that Leonardo’s

contacts are continuous and not isolated, Plaintiff’s alleged injury on an AW139 manufactured

by Leonardo is arguably related to Leonardo’s contacts to manufacture other AW139s for

Louisiana buyers. Because plaintiff has carried her prima facie burden to warrant jurisdictional

discovery under the minimum contacts and relatedness prongs, the Court does not need to

address reasonableness at this stage. However, the Court does not foreclose a finding of no

relatedness.

4. Plaintiff Does Not Make a Prima Facie Case that AWPC Is Leonardo’s Alter Ego

Plaintiff also argues AWPC’s contacts should be attributed to Leonardo for specific

jurisdiction. See R. Docs. 60 at p 20; 72 at p 4. Because AWPC and/or Leonardo Helicopters are

allegedly Leonardo’s fully-owned subsidiaries, Plaintiff argues they are Leonardo’s alter egos

under Louisiana law. R. Doc. 72 at p 4. Thus, subsidiary “contacts may be imputed onto

[Leonardo] for the purpose of personal jurisdiction.” Id.

Leonardo asserts that neither Leonardo Helicopters nor AWPC is an alter ego because the

clear balance of factors does not support imputation. R. Doc. 75 at pp 5-7. Even when reading in

the light most favorable to Plaintiff, only one factor, wholly-owned subsidiary, indicates alter

ego jurisdiction. Id. at p 7.

To attribute subsidiary contacts for personal jurisdiction, Plaintiff must make a prima

facie showing that “one corporation assert[s] sufficient control to make the other its agent or alter

ego.” Dickson Marine, 179 F.3d at 338. Under Louisiana law these factors include: common

ownership, directors and officers, employees, and offices; unified control; inadequate

capitalization; noncompliance with corporate formalities; centralized accounting; unclear

allocation of profits and losses between corporations; one corporation paying the salaries,

expenses, or losses of another corporation; and undocumented transfers of funds between

entities. Jackson v. Tanfoglio Giuseppe, S.R.L., 615 F.3d 579, 587 (5th Cir. 2010) (citing Green

v. Champion Ins. Co., 577 So.2d 249, 257–58 (La.Ct.App.1991)).3 Even if “some factors suggest

that one entity is the alter ego of another, the maintenance of corporate formalities tips in favor

of finding that the entities are not alter egos.” Jackson, 615 F.3d at 587 (citing Dalton v. R & W

Marine, Inc., 897 F.2d 1359, 1363 (5th Cir.1990)). When imputation is warranted, often all

factors favor it. See Blackmon v. Bracken Constr. Co., Inc., No. CV 18-00142-BAJ-RLB, 2018

WL 4387633, at *4 (M.D. La. Sept. 14, 2018) (finding an entity was an alter ego when nearly all

factors favored imputing subsidiary contacts).

The evidence does not support finding AWPC as Leonardo’s alter ego. Other than the

observation of corporate formalities and wholly-owned subsidiaries, factors speak against alter

ego imputation. See generally, R. Docs. 60, 75. Plaintiff offers no evidence that contradicts

Leonardo’s affidavit that AWPC and Leonardo have separate corporate directors, capitalization,

payment of salaries, and that any transfer of funds is undocumented. Id. Plaintiff’s attempts to

question Leonardo’s veracity is not enough. See Rec Doc. 72. There must be “affirmative” facts

showing that entities are alter egos. Alpine View Co., 205 F.3d at 217; see also MidCap Media

Fin., LLC v. Pathway Data, Inc., 2019 WL 6699789, at *2 (W.D. Tex. Dec. 9, 2019) (“test[ing]

the veracity of [the defendant’s] story however articulates no legitimate basis to doubt [the

defendant’s] representations.”) To be sure, Plaintiff has not had discovery. Discovery is only

warranted if there is a prima facie showing. See Gonzalez v. Bank of Am. Ins. Servs., Inc., 454 F.

App'x 295, 299 (5th Cir. 2011) (affirming dismissal for lack of personal jurisdiction as a

preliminary matter for failure to present a prima facie case).

3 Because Plaintiff asserts claims under Louisiana Products Liability Act, the Court uses the

Louisiana test as directed under Adm'rs of Tulane Educ. Fund v. Ipsen, S.A., 450 F. App'x 326,

330 n. 5 (5th Cir. 2011).

Not only is Plaintiff unable to carry her prima facie burden but she also fails to identify

any evidence she expects to find to support alter ego imputation. The court does not authorize

“Jurisdictional fishing expeditions” based on hope or “general averments that more discovery”

will find jurisdiction. Johnson, 21 F.4th 314, 326. Because Plaintiff does not identify any

specific evidence that will support alter ego imputation, there is no need to authorize such

discovery. Accordingly,

IT IS ORDERED that Leonardo’s Motion to Dismiss First Amended Complaint for

Lack of Personal Jurisdiction under Fed. R. Civ. P 12(b)(2) is DENIED without prejudice, with

leave to re-file after limited jurisdictional discovery is completed;

IT IS FURTHER ORDERED that Plaintiff Brenna Croom is GRANTED LEAVE to

conduct limited jurisdictional discovery consistent with this Order for a period of not more than

ninety (90) days from the date of this order; and

IT IS FURTHER ORDERED that the parties’ joint Request for Oral Argument is

DENIED AS MOOT.

New Orleans, Louisiana, this 22nd day of October 2024.

GREG GERARD GUIDRY

UNITED STATES DISTRICT JUDGE

12