Withers v. City of Aberdeen

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

TOM WITHERS, II CIVIL ACTION

VERSUS

CITY OF ABERDEEN NO. 23-01510-BAJ-SDJ

RULING AND ORDER

This is a contract dispute over legal fees. Now before the Court is Defendant’s

Motion to Dismiss (Doc. 18, the “Motion”). The Motion is opposed. (Doc. 20). For

the reasons that follow, the Motion will be granted, and Plaintiffs cause of action will

be dismissed without prejudice.

I BACKGROUND

The Court accepts the following allegations as true for present purposes:

In 2012, the Council of Aldermen for the City of Aberdeen, Mississippi, entered

into a contract with Ewing Solar Corporation (ESC) for the procurement of solar

power. (Doc. 1 at 1). In 2016, the City engaged an attorney, Walter Howard Zinn, Jr.,

to act as special counsel and help achieve the goals of the contract. (Doc. 1-6 at 2).1

Zinn “contracted with” Plaintiff, a Louisiana attorney practicing in Baton Rouge,

Louisiana, “to serve as Special Counsel for [ESC] in matters related” to a developing

solar power project in the City. (/d. at 2). Plaintiff was to be compensated at “the same

rate” as Zinn, who was earning $300.00 an hour, in addition to an initial retainer of

$5,000.00. Ud. at 1, 2).

1 The parties did not inform the Court as to the location of Zinn’s law practice.

The City failed to secure financing for the solar projects. (Doc. 1 at 4). After

further attempts to achieve its solar power goals with ESC, the Alderman of the City

voted to end the City’s relationship with ESC. (Id. at 6). In 2019, Plaintiff made

demands on the City for payment of attorney fees. (/d.). On June 18, 2019, the City,

through its Alderman, refused to pay attorney fees and rescinded the contract with

Zinn. (d.).

II. PROCEDURAL HISTORY

In October 20238, Plaintiff filed this lawsuit for breach of contract, asserting the

Court’s diversity jurisdiction under 28 U.S.C. § 1382.

Plaintiff alleges that he “provided legal services related to the [City]

development initiatives ... for a period exceeding five years.” (Doc. 1 at 7). He further

alleges that he worked more than 1,000 hours and seeks $850,000.00, as “fair and

reasonable” compensation. (Id.).

Defendant moved to dismiss, arguing that the Court has no personal

jurisdiction over the City pursuant to Federal Rule of Civil Procedure 12(b)(2), that

venue is improper pursuant to Rule 12(b)(8), and that the Complaint fails to state a

claim upon which relief can be granted pursuant to Rule 12(b)(6). (Doc. 17).

Defendant also asks, in the alternative, that the Court transfer the case to the

Northern District of Mississippi. (See id.). Pervasive Software Inc. v. Lexware GmbH

& Co. KG, 688 F.3d 214, 222 (5th Cir. 2012) (““Accordingly, we see no error in the

district court's decision to dispose of the personal jurisdiction issue first and in not

proceeding further [to the additional arguments in support of dismissal] after

concluding that it lacked personal jurisdiction over [defendant].”).

HI. LEGAL STANDARD

Personal jurisdiction is “an essential element of the jurisdiction of a district

court, without which it is powerless to proceed to an adjudication.” Ruhrgas AG v.

Marathon Oil Co., 526 U.S. 574, 583 (1999). “The plaintiff bears the burden of

establishing jurisdiction, but need only present prima facie evidence.” Revell v. Lidouv,

317 F.3d 467, 469 (5th Cir. 2002). In considering a motion to dismiss for lack of

personal jurisdiction, the Court must accept the plaintiffs “uncontroverted

allegations, and resolve in its favor all conflicts between the facts contained in the

parties’ affidavits and other documentation.” Alpine View Co. Ltd. v. Atlas Copco AB,

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

A federal district court sitting in diversity may exercise personal jurisdiction

over a foreign defendant if (1) the long-arm statute of the forum state creates personal

jurisdiction over the defendant; and (2) the exercise of personal jurisdiction is

consistent with the due process guarantees of the U.S. Constitution. Revell, 317 F.3d

at 469. Because Louisiana's long-arm statute, La. R.S. § 18:3201, et seqg., extends

jurisdiction to the full limits of due process, the Court’s focus is solely on whether the

exercise of its jurisdiction over Defendant would offend federal due process. See

Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 336 (5th Cir. 1999) (citing La.

R.S. § 138:3201(B)).

The Due Process Clause of the Fourteenth Amendment permits a court

to exercise personal jurisdiction over a foreign defendant when (1) “that

defendant has 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 defendant

does not offend ‘traditional notions of fair play and substantial justice.”

Sufficient minimum contacts will give rise to either specific or general

jurisdiction. “General jurisdiction exists when a defendant's contacts

with the forum state are unrelated to the cause of action but are

‘continuous and systematic.” Specific jurisdiction arises when the

defendant's contacts with the forum “arise from, or are directly related

to, the cause of action.”

Revell, 317 F.3d at 470 (footnotes omitted).

IV. DISCUSSION

Defendant argues that it does not have sufficient contacts with Louisiana to

subject it to the Court’s jurisdiction. The Court agrees.

Defendant City of Aberdeen is located in Monroe County, Mississippi, and is a

municipality and political subdivision of the State of Mississippi. Based on the

pleadings, the City does not transact business in Louisiana, does not employ anyone

in Louisiana, and does not maintain bank accounts in Louisiana. Although Plaintiff

is identified in a contract between the City and an unrelated attorney, and the

contract provides for a rate of compensation for Plaintiff, there is no evidence of any

contract before the Court between the City and Plaintiff. There is no document signed

by Plaintiff establishing him as a lawyer for the City. Indeed, the only contract before

the Court provides that Plaintiff was to “serve as” counsel for ESC, a corporate entity

that is neither a party to this case nor owned and operated by the City. (Doc. 1-6 at

2). In other words, Plaintiff did not provide legal services to the City, he provided

them to ESC. Nor is there any evidence that the City ever contacted Plaintiff or

communicated with him in any way.

Considering the totality of the facts of this case, the minimum contacts prong

has not been satisfied. The City cannot be said to have “purposefully availed” itself of

the privilege of conducting activities within Louisiana by hiring a lawyer, Zinn, who

in turn retained Plaintiff to be a lawyer for a non-party corporate entity.

Hiring a lawyer in another state can sometimes subject a defendant to the

personal jurisdiction of courts 1n that state. See English & Smith v. Metzger, 901 F.2d

36 (4th Cir. 1990) (California attorney who retained services of Virginia co-counsel

conducted sufficient activities to transact business in Virginia where California

attorney initiated contact with Virginia counsel and made various phone calls and

mailings into state); Paul, Hastings, Janofsky & Walker v. City of Tulsa, Oklahoma,

245 F.Supp.2d 1248 (N.D. Ga. 2002) (Oklahoma city purposefully established

minimum contacts with Georgia law firm where contract for payment of legal fees

was basis for law firm's claims, city initiated contact with law firm and caused it to

hire Atlanta-based contract attorneys and paralegals to work in Georgia on city's

case, and city knew the vast majority of work would be conducted in law firm's

Georgia office); Brown Rudnick Berlack Israels LLP v. Brooks, 311 F.Supp.2d 181 (D.

Mass. 2004) (Massachusetts court had specific personal jurisdiction over New

Hampshire resident in fee action where New Hampshire resident hired

Massachusetts law firm to represent him; engagement letter was drafted in and

returned to Massachusetts; resident attended a number of meetings in

Massachusetts which were related to his legal representation; resident spent

significant amount of time reviewing documents in conference room in

Massachusetts; resident made telephone calls and sent faxes and e-mails to

Massachusetts firm; and resident retained Massachusetts-based expert witnesses);

Remick v. Manfredy, 238 F.3d 248 (8rd Cir. 2000) (Pennsylvania court had specific

personal jurisdiction over Indiana client where client sought attorney out by placing

a telephone call to his associate in their Philadelphia office, the solicitation eventually

resulted in a fee agreement which the attorney signed in Pennsylvania and the client

and attorney signed and returned to Pennsylvania, at least one payment was sent by

the client to his attorney at his Philadelphia office, most of the attorney's services

were conducted at his Philadelphia office, and there were repeated “informational

communications” during the course of the contractual relationship with the attorney

at his Philadelphia office).

However, none of these cases involved a client working with a company which

was represented by a lawyer in another state, whom the client may have agreed to

pay. Moreover, none of these cases involved a client having no communications

whatsoever with the lawyer in the other state.

Plaintiff essentially makes no substantive argument for the existence of

minimum contacts here, apart from the conclusory statement that the City “has

established sufficient minimum contacts with the State of Louisiana to warrant...

personal jurisdiction over this claim.” (Doc. 20 at 6). Nor does Plaintiff cite any legal

authority establishing that minimum contacts are present here, apart from quoting

the Louisiana long-arm statute. (/d.). This does not suffice. See Preis Kraft & Roy v.

Dallas Fire Ins. Co., No. CV 05-958, 2005 WL 8178114, at *4 (W.D. La. Dec. 8, 2005),

report and recommendation adopted, No. 6:05-CV-09538, 2006 WL 8460561 (W.D. La.

Jan. 3, 2006) (finding no minimum contacts where law firm sought to establish

jurisdiction in Louisiana, where its headquarters was located, “but the legal work

was actually performed in another state by a branch office,” and “there was no written

contract between [defendant] and [the law firm], the legal work was all performed by

attorneys located in [the law firm’s] Texas office, and all of the cases involved

litigation in Texas’).

Based on the pleadings before the Court, Defendant has not established

minimum contacts in Louisiana such as to warrant the Court’s exercise of personal

jurisdiction. The question then becomes what the appropriate remedy for this

deficiency is.

“Upon determining that it lacks personal jurisdiction over a foreign defendant,

the Court has two options. The first is to dismiss the foreign defendant without

prejudice.” Donelon v. Pollick, No. CV 20-00177-BAJ-RLB, 2021 WL 796145, at *6

(M.D. La. Mar. 2, 2021) (citing Guidry v. U.S. Tobacco Co., 188 F.3d 619, 623 n.2 (5th

Cir. 1999). The second is to “transfer the entire action ‘to any other such court... in

which the action. . . could have been brought at the time it was filed.” Jd. (quoting 28

U.S.C. § 1631); see Harutyunyan v. Love, No. 19-cv-41, 2019 WL 5551901, at *6 (E.D.

La. Oct. 28, 2019) “Although the Fifth Circuit has not squarely addressed this issue,

it appears to this [cJourt [that] the Fifth Circuit would agree that § 1631 authorizes

transfers based on lack of subject matter jurisdiction, personal jurisdiction, or

improper venue.”). It is undisputed that this action could have been brought in the

Northern District of Mississippi.

The sole issue therefore becomes whether the interests of justice are promoted

by transfer as opposed to dismissal. Harutyunyan, 2019 WL 5551901, at *4 (“A case

is ‘transferable’ pursuant to § 1631 when three conditions are met: (1) the transferee

court would have been able to exercise its jurisdiction on the date the action was

misfiled; (2) the transferor court lacks jurisdiction; and (3) the transfer serves the

interest of justice.”). The Court finds that the interests of justice favor transfer, as

opposed to outright dismissal, in part because a dismissal without prejudice would

potentially frustrate considerations of judicial economy, and in part because of the

considerations of the public and private factors as argued in Defendant’s Motion,

(Doc. 18 at 11-15), and as set forth in 28 U.S.C. § 1404(a). The Court will therefore

transfer this matter to the Northern District of Mississippi, where Plaintiff will be

afforded an opportunity to press his claims.

V. CONCLUSION

Accordingly,

IT IS ORDERED that Defendant City of Aberdeen’s Motion to Dismiss

(Doc. 17) be and is hereby GRANTED IN PART and DENIED IN PART. This

matter is hereby TRANSFERRED to the United States District Court for the

Northern District of Mississippi. .

Ws

Baton Rouge, Louisiana, this’ ° day of December, 2024

JUDGE BRIAN A.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA