Filed: Jan. 16, 2019
Latest Update: Mar. 03, 2020
Summary: Case: 18-40421 Document: 00514797178 Page: 1 Date Filed: 01/16/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 18-40421 January 16, 2019 Summary Calendar Lyle W. Cayce Clerk SHERI W. HEAD, Individually, and in her Capacity as Independent Executrix of the Estate of William Washington Head, Jr., Deceased; HAYLEE HEAD, Plaintiffs - Appellants v. LAS VEGAS SANDS, LIMITED LIABILITY CORPORATION, doing business as The Venetian Reso
Summary: Case: 18-40421 Document: 00514797178 Page: 1 Date Filed: 01/16/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 18-40421 January 16, 2019 Summary Calendar Lyle W. Cayce Clerk SHERI W. HEAD, Individually, and in her Capacity as Independent Executrix of the Estate of William Washington Head, Jr., Deceased; HAYLEE HEAD, Plaintiffs - Appellants v. LAS VEGAS SANDS, LIMITED LIABILITY CORPORATION, doing business as The Venetian Resor..
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Case: 18-40421 Document: 00514797178 Page: 1 Date Filed: 01/16/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-40421 January 16, 2019
Summary Calendar
Lyle W. Cayce
Clerk
SHERI W. HEAD, Individually, and in her Capacity as Independent
Executrix of the Estate of William Washington Head, Jr., Deceased; HAYLEE
HEAD,
Plaintiffs - Appellants
v.
LAS VEGAS SANDS, LIMITED LIABILITY CORPORATION, doing business
as The Venetian Resort Hotel Casino/The Palazzo Resort Hotel Casino;
DESERT PALACE, INCORPORATED, doing business as Caesar's Palace,
Desert Palace Limited Liability Corporation, Harvey's Tahoe Management
Company, Incorporated, doing business as Harrah's Casino Hotel Lake Tahoe
and Caesars Entertainment Corporation; MGM GRAND HOTEL, LIMITED
LIABILITY CORPORATION; MGM RESORTS INTERNATIONAL,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC. No. 7:17-CV-426
Before STEWART, Chief Judge, and OWEN and OLDHAM, Circuit Judges.
PER CURIAM:*
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-40421 Document: 00514797178 Page: 2 Date Filed: 01/16/2019
No. 18-40421
Plaintiff-Appellants, Sheri W. Head and Haylee Head (collectively,
“Head”), appeal the district court’s judgments denying their motion to remand
and granting Defendant-Appellees’ motions to dismiss for lack of personal
jurisdiction. For the following reasons, we affirm.
I. Factual & Procedural Background
Defendants-Appellees in this case are Las Vegas Sands, LLC d/b/a the
Venetian Resort Hotel Casino/the Palazzo Resort Hotel Casino, MGM Grand
Hotel, LLC, MGM Resorts International, Desert Palace, Inc., d/b/a/ Caesar’s
Palace, Desert Palace LLC, Harvey’s Tahoe Management Company, Inc., d/b/a
Harrah’s Casino Hotel Lake Tahoe, and Caesars Entertainment Corporation
(collectively referred to as the “Casino Defendants”). This action arose after
William Head, Jr. (“William”), a longtime high-stakes Las Vegas gambler,
committed suicide after incurring significant debt. Head alleges that the
Casino Defendants lured William into debt by enticing him to gamble in Las
Vegas. Head alleges that the enticements included large lines of credit, over $1
million dollars of “customer retention” rebates, free first-class travel, luxurious
accommodations, luxury items, vacations, food, and beverages. According to
Head, the Casino Defendants, although aware of William’s gambling losses,
continued to extend lines of credit to him, thereby creating additional debt on
top of his already existing debt. Head claims that William’s deep debt resulted
in his psychological distress and ultimate suicide.
After his death, William’s estate entered probate in the Hidalgo County
Probate Court. The Casino Defendants filed suit against the estate, seeking to
recoup the debt they alleged William owed them. William’s heirs then filed this
action against the Casino Defendants and Mortensen Investments, Ltd.
(“Mortensen”) alleging wrongful death and intentional infliction of emotional
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No. 18-40421
distress under the Texas survival statute. 1 The Casino Defendants removed
the case to the U.S. District Court for the Southern District of Texas, asserting
diversity jurisdiction under 28 U.S.C. § 1332. Head filed a motion to remand
on grounds that the plaintiffs and Mortensen were both residents of Texas, and
thus, complete diversity did not exist. 2
The district court denied Head’s motion to remand on grounds that
Mortensen had been improperly joined as a defendant in the suit. Shortly
thereafter, the Casino Defendants filed Rule 12(b)(2) motions to dismiss for
lack of personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). The district court
granted the motions and dismissed the suit without prejudice, concluding that
Head had failed to establish a prima facie case of personal jurisdiction. Head
filed this appeal.
II. Standard of Review
“This court reviews de novo issues of subject matter jurisdiction,
including a district court’s denial of a motion to remand.” Gilmore v.
Mississippi, 905 F.3d 781, 784 (5th Cir. 2018) (citing In re 1994 Exxon Chem.
Fire,
558 F.3d 378, 384 (5th Cir. 2009)). We also “review[] de novo a district
court’s determination that it lacks personal jurisdiction.” Sangha v. Navig8
ShipManagement Private, Ltd.,
882 F.3d 96, 101 (5th Cir. 2018) (citations
omitted).
III. Discussion
On appeal, Head argues that: (1) the district court erred in denying her
motion to remand and in finding that Mortensen had been improperly joined
as a defendant in the suit; and (2) the district court erred in granting the
1 Pursuant to the Texas Survival Statute, an “action survives to and in favor of the
heirs, legal representatives, and estate of the injured person.” Tex. Civ. Prac. & Rem. Code
Ann. § 71.021(b).
2 The parties did not dispute that the suit involved an amount in controversy sufficient
to satisfy 28 U.S.C. § 1332.
3
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No. 18-40421
Casino Defendants’ motions to dismiss for lack of personal jurisdiction. We
disagree.
A. Motion to Remand & Improper Joinder
In a well-reasoned and detailed opinion denying Head’s motion to
remand, the district court properly concluded that she had failed to state a
claim against Mortensen that would survive the Rule 12(b)(6) standard
because she only provided evidence that Mortensen loaned William money. See
Fed. R. Civ. P. 12(b)(6). As the district court observed, Head failed to identify
a duty owed by Mortensen to William to establish a negligence claim since she
failed to provide any evidence pertaining to their relationship other than her
allegation that Mortensen extended two loans to Williams. Kroger Co. v.
Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (“To establish negligence, a party
must establish a duty, a breach of that duty, and damages proximately caused
by the breach.”). Additionally, because the only evidence Head presented
involved Mortensen’s two loans to William, Head also failed to establish that
Mortensen acted intentionally or recklessly to cause William’s distress or that
his conduct rose to the level of being extreme or outrageous. Twyman v.
Twyman,
855 S.W.2d 619, 621 (Tex. 1993) (noting that to prove intentional
infliction of emotional distress, a plaintiff must establish that: “1) the
defendant acted intentionally or recklessly, 2) the conduct was extreme and
outrageous, 3) the actions of the defendant caused the plaintiff emotional
distress, and 4) the emotional distress suffered by the plaintiff was severe”).
On these facts, the district court properly concluded that Mortensen had
been improperly joined as a defendant. See Smallwood v. Ill. Cent. R.R. Co.,
385 F.3d 568, 573 (5th Cir. 2004) (holding that improper joinder may occur
when the plaintiff fails to establish a cause of action against a non-diverse
party in state court). Likewise, the district court did not err in denying Head’s
motion to remand.
Gilmore, 905 F.3d at 784.
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No. 18-40421
B. Motion to Dismiss for Lack of Personal Jurisdiction
The district court issued a second lengthy and detailed opinion properly
granting the Casino Defendants’ motions to dismiss for lack of personal
jurisdiction. “‘Minimum contacts’ can give rise to either specific jurisdiction or
general jurisdiction.” Sangha, 882 F.3d at 101 (quoting Lewis v. Fresne,
252
F.3d 352, 358 (5th Cir. 2001)). Specific jurisdiction exists “when a nonresident
defendant has purposefully directed its activities at the forum state and the
litigation results from alleged injuries that arise out of or relate to those
activities.”
Id. (citation omitted). As the district court observed, Head’s claims
for specific jurisdiction rested on the “lone allegation that [the Casino]
Defendants sent jets to Texas for [William] an undisclosed number of times.”
This allegation does not amount to a showing that the Casino Defendants
purposefully directed their activities to the state of Texas or that William’s
death and the subsequent litigation herein resulted from the jet transport.
Further, Head’s vague and generalized assertion that the Casino Defendants
sent jets to Texas an undetermined number of times to transport her husband
to Las Vegas does not comport with applicable caselaw that requires plaintiffs
to submit evidence supporting personal jurisdiction over each defendant
without grouping them together. See Calder v. Jones,
465 U.S. 783, 790 (1984)
(“Each defendant’s contacts with the forum State must be assessed
individually.”).
The district court also properly concluded that Head failed to present
evidence establishing a prima facie case of general jurisdiction. “A court may
assert general jurisdiction over [non-resident defendants] to hear any and all
claims against them when their affiliations with the State are so ‘continuous
and systematic’ as to render them essentially at home in the forum State.”
Sangha, 882 F.3d at 101. As the district court observed, the Casino Defendants
are not Texas residents and the corporate defendants are not incorporated in
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No. 18-40421
Texas and do not have their principle place of business in Texas. Likewise, no
evidence was presented showing that the Casino Defendants conducted
“continuous and systematic” business activities in Texas that would rise to the
level of rendering them “at home” in Texas. 3 Id.
The district court properly granted the Casino Defendants’ motions to
dismiss for lack of personal jurisdiction.
Id.
IV. Conclusion
For the aforementioned reasons, we affirm the judgments of the district
court denying Head’s motion to remand and granting the Casino Defendants’
motions to dismiss for lack of personal jurisdiction.
3 Head points to the Casino Defendants’ website presence which, although exists in
Texas, presumably exists nationwide as well. As the district court correctly reasoned, the
Fifth Circuit has rejected the argument that a defendant’s internet presence within a forum
state supports general jurisdiction. Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 432 (5th
Cir. 2014) (reasoning that the defendant’s website presence merely indicated that it may have
done business with the forum state rather than in the forum state and thus a finding of
general jurisdiction was not supported).
6
