CARL J. BARBIER, District Judge.
Before the Court are Defendants Transocean, Ltd. and GlobalSantaFe Offshore Services's,
This action arises out of claims for maintenance and cure, unseaworthiness, and negligence brought under general maritime law. Plaintiff James Johnson ("Mr. Johnson") filed the instant suit on November 8, 2011, naming as Defendants AFREN, PLC ("AFREN"), PPI Technology, L.P. ("PPI"), PSL, Ltd. ("PSL"), and Transocean, Ltd. ("Transocean"). On March 27, 2012, Plaintiff filed his First Amended Complaint adding GlobalSantaFe Offshore Services ("GSF") as a Defendant. Mr. Johnson's case was consolidated with Robert Croke ("Mr. Croke")'s related case on June 20, 2012. Mr. Croke's case named AFREN, PPI, Transocean, GSF, and Transocean Offshore Deepwater Drilling, Inc. ("TODDI") as Defendants.
Plaintiffs' complaints assert that on November 8, 2010, they were working as seamen on the HIGH ISLAND VII, a mobile rig located approximately twelve miles off the Nigerian coast. Plaintiffs allege that at approximately 12:30 a.m. Nigerian gunmen boarded the rig and took them hostage. Mr. Johnson alleges that while he was being held hostage, the gunmen shot him in his right leg. He contends that after being shot he "remained on the floor in the galley bleeding from the injury to his leg" for approximately three to three-and-a-half hours. No. 11-2773, Compl., Rec. Doc. 1, p. 5, ¶ 16. He reports that since the alleged incident, he has had
Similarly, Mr. Croke alleges that while being held hostage, he was slapped and beaten by the gunmen and, eventually, shot in the foot. Mr. Croke reports that the gunmen took him with them when they left the rig. He asserts that he was held hostage for ten days and tortured. He alleges that after he was rescued, he had two surgeries performed on his foot. He states that he continues to suffer mental and emotional damages as well as physical injury.
Plaintiffs' complaints assert that they have filed suit against the aforementioned Defendants, because (1) PPI and/or PSL employed them; (2) Transocean owned and operated the rig; (3) AFREN had contracted with Transocean to use the rig; and (4) GSF had employees on the rig who were responsible "for maintaining the [rig's] safety, security and protection." No. 11-2773, First Am. Compl., Rec. Doc. 28, p. 2, ¶ 2. Mr. Croke's complaint also independently asserts that TODDI had employees on board who were responsible for ensuring the safety of the rig. Plaintiffs allege that, together, all of these entities knew or should have known that it was extremely likely that Nigerian gunmen would attack the rig, and they failed to properly secure the rig despite that knowledge.
Transocean and GSF filed the instant Motion to Dismiss on August 22, 2012. Defendants' motion reurges their claim that this Court lacks personal jurisdiction over them, which they first brought before the Court on February 10, 2012, in a previous filing. At that time, this case was before Chief Judge Sarah Vance. Chief Judge Vance denied the earlier motion on May 21, 2012 in order to allow the Plaintiffs time to conduct limited jurisdictional discovery. Her order provided that Defendants could refile the motion after discovery had been completed. As noted, Defendants refiled their motion in August 2012, asserting that GSF had responded to written discovery, that Bradley McKenzie ("Mr. McKenzie"), the Rule 30(b)(6) representative of GSF, had been deposed, and that Plaintiffs had made no additional attempts at discovery. The hearing date for the motion was continued until October 10, 2012. Plaintiffs filed their opposition on October 10, 2012, with Defendants replying that day. Before Chief Judge Vance could rule on the motion, however, the case was reassigned to this Section on November 8, 2012. On January 23, 2013, the Court ordered the parties to submit additional briefing on personal jurisdiction under Rule 4(k)(2). On February 4, 2013, Defendants submitted the required briefing to the Court. Plaintiffs submitted their memoranda to the Court on February 6, 2013, two days after the submission deadline. Defendants replied the same day.
Transocean and GSF argue that this Court does not have personal jurisdiction over them. With regard to specific jurisdiction, Transocean and GSF assert that they do not have sufficient minimum contacts in Louisiana and in connection with this incident because: (1) neither entity owned or operated the rig in question at the time of the incident; (2) even if they had owned/operated the rig, the incident itself did not take place in Louisiana and/or the Eastern District; (3) they, nor any other Transocean affiliate, employed and/or issued paychecks to the Plaintiffs in this case in connection with the incident in question; and (4) they further contend that even if they had employed the Plaintiffs,
Likewise, in reference to general jurisdiction, Defendants argue that neither entity has sufficient systematic and continuous contacts with Louisiana to give this Court personal jurisdiction over them. Specifically, with regard to GSF, Defendants assert that although GSF does issue payroll checks and W-2s to some residents of Louisiana who work for Transocean entities, it asserts that it did not issue any checks to Louisiana employees who worked on the rig in question. Furthermore, Defendants note that GSF only issues paychecks for work performed overseas, not work performed in Louisiana and/or the United States. Likewise, Defendants argue that the issuance of paychecks does not make GSF an employer of the individuals who reside in Louisiana, GSF maintains that it merely acts as a paymaster for Transocean entities. Accordingly, GSF contends that such activity is too sporadic to provide sufficient continuous contacts for the purposes of general jurisdiction. In reference to Transocean, Defendants note that Plaintiffs did not conduct any discovery with respect to Transocean, nor did they address the arguments made with respect to Transocean in its opposition. As such, Defendants contend that the Plaintiffs have not opposed its Transocean personal jurisdiction arguments and, therefore, Transocean should be dismissed. In support of their arguments, Defendants submit copies of the contracts governing the ownership and/or operation of the rig in question, the deposition of Mr. McKenzie, and GSF's written discovery responses.
In response, Plaintiffs argue that this Court has personal jurisdiction over GSF.
In the alternative, Plaintiffs argue that the Court should apply Rule 4(k)(2) to this case, conferring jurisdiction on GSF because (1) it is not subject to jurisdiction in any particular state's courts, and because (2) exercising jurisdiction would still be consistent with the constitution. Plaintiffs contend that this is appropriate because it is clear that GSF has a relationship with the United States, and GSF has contested jurisdiction in the past in Texas, the most logical state to have personal jurisdiction over GSF since it runs its payroll operations there. Plaintiffs argue that because GSF employs at least 300 Americans, administers its payroll from an office in the United States, and holds itself out as being located in that same office, it has sufficient contacts with the United States to warrant conferring jurisdiction under Rule 4(k)(2). Additionally, Plaintiffs argue that because GSF has objected to jurisdiction in Texas in the past, as a matter of law this Court should find that GSF is not subject to personal jurisdiction in any state and, thus, apply Rule 4(k)(2).
Lastly, Plaintiffs assert that Mr. McKenzie's testimony establishes that TODDI is the real enterprise behind GSF. They contend that TODDI effectively runs GSF and, therefore, the two corporations should be treated as a single business entity for jurisdictional purposes. Plaintiffs contend that on at least two occasions TODDI has been subject to personal jurisdiction in Louisiana, and that the Court should consider that in determining its jurisdiction over GSF. In support of their arguments, Plaintiffs have provided the Court with (1) an affidavit from an "employee" of GSF, (2) pleadings from the aforementioned cases, and (3) Mr. Bradley's deposition/written discovery from GSF.
In Defendants' reply, they reiterate that GSF is merely a paymaster, issuing payroll to Transocean employees and nothing more. In making this argument, Defendants emphasize that this Court has no specific jurisdiction because there is no connection between them, the incident in question, and Louisiana. Likewise, they reiterate that administering payroll is not sufficient to create systematic and continuous contacts with Louisiana. With regard to Plaintiffs' arguments about past cases in which the courts have exercised jurisdiction over GSF in Texas and Louisiana, and/or in which GSF opposed jurisdiction in Texas, Defendants assert that what may have been true in the past is not necessarily true today. In particular, Defendants contend that since those cases, they have undergone significant corporate changes and the same arguments made with reference to personal jurisdiction in Texas may not be applicable to them today. Defendants urge the Court to focus on the primary issue in this case — whether personal jurisdiction exists over them today. Likewise, they also note that in the cases in which Louisiana courts exercised jurisdiction over them, the incidents in question and/or plaintiffs in those cases had a connection to Louisiana, and it was better for all parties for GSF to submit to the jurisdiction of Louisiana courts.
With regard to Plaintiffs' arguments about Rule 4(k)(2), Defendants assert that numerous corporate changes have taken place since the time in which it contested personal jurisdiction in Texas, thereby implying that Plaintiff has not made out a prima facie case to warrant applying Rule 4(k)(2). Likewise, Defendants argue that
While both Plaintiffs and Defendants expand on their Rule 4(k)(2) arguments in their additional briefings, the Court will address those specific arguments individually as they apply to the Court's analysis below.
The Fifth Circuit has stated the legal standard for a motion to dismiss for lack of personal jurisdiction:
As an initial matter, the Court notes that the Plaintiffs have not produced any information or made any argument which supports the proposition that this Court has personal jurisdiction over Transocean. As such, there is no evidence in front of the Court upon which it can make a finding that it does indeed have jurisdiction over Transocean. Therefore, because the Plaintiffs have failed to meet their burden of proof, the Court finds that it does not have personal jurisdiction over Transocean in the instant case; therefore, Transocean will be dismissed from this suit.
Next, the Court addresses the question of whether it has personal jurisdiction over GSF. Plaintiffs have proffered three arguments in support of jurisdiction: (1) that there is general jurisdiction over GSF, (2) that there is jurisdiction over GSF under Rule 4(k)(2), and (3) that GSF and TODDI are a single entity.
In order for a court to exercise general jurisdiction over a defendant, the defendant must have "continuous and systematic general business contacts" with the forum state. Helicopteros, 466 U.S. at 415, 104 S.Ct. 1868. "Contacts between a defendant and the forum state must be `extensive' to satisfy the "systematic and continuous" test." DNH, LLC v. In-N-Out Burgers, 381 F.Supp.2d 559, 563 (E.D.La.2005) (citing Submersible Systems, Inc. v. Perforadora Central, S.A. de C.V., 249 F.3d 413, 419 (5th Cir.2001)). The continuous and systematic test for establishing personal jurisdiction is a difficult test to meet. Submersible Systems, Inc., 249 F.3d at 419. In fact, "the Supreme Court has upheld an exercise of personal jurisdiction when the suit was unrelated to the defendant's contacts with a forum only once." Id.
Plaintiffs assert that GSF has the following contacts with Louisiana: (1) it employs forty Louisiana residents to work overseas; (2) it transfers money into Louisiana bank accounts and/or sends Louisiana employees' pay checks and W-2's to Louisiana; and (3) at least one of the Louisiana residents GSF employs attends training in Louisiana, accesses the company intranet in Louisiana, and communicates with his jobsite from Louisiana.
In Helicopteros, the Supreme Court held that a Colombian corporation's contacts with Texas were insufficient to establish general jurisdiction. 466 U.S. at 416, 104 S.Ct. 1868. In that case, the corporation's contacts consisted of sending an executive
Applying that same reasoning to the instant case, it would seem that the fact that GSF sends checks and W2's to employees
To the extent that Plaintiffs present Mr. Anderson's affidavit (the plaintiff in Case No. 11-812, pending before Chief Judge Vance) as evidence that GSF does more than just send checks and/or direct deposits to its employees, the Court notes that Mr. Anderson can only attest to his own employment by GSF. He cannot attest to the employment activities, requirements, or relationship of GSF with the thirty-nine other individuals who are Louisiana residents. Moreover, Mr. Anderson's affidavit does not indicate that it was actually GSF that required him to complete additional training or conduct additional employment activities in the state.
Mr. McKenzie's deposition states that the only activities that GSF performs are the mailing of pay checks and W-2's. Likewise, neither Mr. McKenzie's deposition nor Mr. Anderson's affidavit indicate that GSF did things such as interview these forty employees in Louisiana, recruit individuals specifically from Louisiana, or
In the alternative, Plaintiff argues that this Court may exercise jurisdiction under Rule 4(k)(2). Rule 4(k)(2) provides that,
Federal Rule of Civil Procedure 4(k)(2) (2012).
In the Fifth Circuit, claims falling under the federal courts' admiralty jurisdiction are considered to be claims arising under federal law for the purposes of Rule 4(k)(2). World Tanker Carriers Corp. v. M/V Ya Mawlaya, 99 F.3d 717, 723 (5th Cir.1996). In order to show that Rule 4(k)(2) applies the plaintiff must demonstrate that (1) the defendant in question is not subject to the general jurisdiction of any other state, and (2) that exercising jurisdiction is consistent with the due process clause of the Fifth Amendment, meaning that the defendant has sufficient minimum contacts with the United States as a whole. Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 651 (5th Cir.2004). The Fifth Circuit has stated "that a piecemeal analysis of the existence vel non of jurisdiction in all fifty states is not necessary" to prove part one of the test. Id. Rather, the court may confer jurisdiction where the "defendant does not concede to jurisdiction in another state." Id.
In forming this rule, the Fifth Circuit adopted the burden-shifting framework adopted by the United States Court
In the instant case, Plaintiffs argue that this case is an admiralty case and, therefore, Rule 4(k)(2) applies. Likewise, in arguing that general jurisdiction does not exist in any other state, Plaintiffs contend that because GSF contested personal jurisdiction in Texas a 2006 case, Devon Energy Prod. Co., LP v. GlobalSantaFe South America, LLC, No. 06-2992, and because Texas is the state where GSF is most likely to be subject to general jurisdiction as it has an office there, the Court should find that GSF is not subject to the general jurisdiction of any state. Likewise, in their supplemental briefing, Plaintiffs note that in the more recent Anderson case, during oral argument counsel for GSF refused to admit that Texas would be a proper venue for suit when that question was specifically posed to counsel.
In response, GSF has asserted that while it may have contested jurisdiction in the past, such arguments may not be available to it today, thereby implying that it could be subject to personal jurisdiction in Texas. Nevertheless, in both GSF's reply
The Court relies on the Fifth Circuit's decision in Adams in making this determination. In Adams, the court found that the plaintiff had made a prima facie case where: (1) the defendant had contested transfer to New York, a jurisdiction where plaintiff believed personal jurisdiction existed; (2) the defendant generally challenged contacts with the U.S. as a whole; and (3) the defendant had not offered any other venue where personal jurisdiction might be conferred. Adams, 364 F.3d at 651. As the Court has noted, Plaintiffs have shown that GSF has contested jurisdiction in Texas, a jurisdiction where Plaintiffs believe personal jurisdiction should exist. Likewise, throughout Defendants' supplemental memorandum they challenge GSF's contacts with the United States as a whole.
Accordingly, the Court now examines GSF's contacts with the United States as a whole in order to determine whether it is appropriate to exercise jurisdiction. In understanding GSF's contacts, the Court looks primarily to Mr. McKenzie's 30(b)(6) deposition. In his deposition, Mr. McKenzie explains that GSF's primary purpose is to manage the payroll for TODDI's "ex-pat population." Defs.' Ex. E, Rec. Doc. 64-7, p. 3. Specifically, GSF issues paychecks, direct deposit, and W-2's to U.S. nationals who work abroad. Defs.' Ex. E, Rec. Doc. 64-7, p. 3-4. Mr. McKenzie reiterates throughout his deposition that GSF does not issue payroll for citizens of other countries working abroad, but rather, focuses solely on U.S. citizens — approximately 300. Defs.' Ex. E, Rec. Doc. 64-7, p. 3-5. Furthermore, when asked where GSF's W-2's are processed, Mr. McKenzie stated that, "[w]e have a department, a payroll department here in Houston that processes the payroll information for these employees and which is ultimately derived back to the W-2." Defs.' Ex. E, Rec. Doc. 64-7, p. 4. Likewise, Mr. McKenzie explained that actual review of payroll for GSF happens in Houston, and all of his own work for GSF has occurred in Houston.
While the Court admits that the question of general jurisdiction is a close call in this case, it finds that GSF cannot have it both ways. GSF cannot effectively run its payroll operations out of Houston, hold itself out to the recipients of its paychecks as having an office in Houston, and only employ United States citizens who work abroad, while at the same time avoiding being brought into court in the United States. In making this determination, the Court looks at the purpose of Rule 4(k)(2) jurisdiction. The Fifth Circuit has explained that Rule 4(k)(2) "was enacted to fill an important gap in the jurisdiction of federal courts in cases arising under federal law." Adams, 364 F.3d at 651. "`While a defendant may have sufficient contacts with the United States as a whole to satisfy
Given this conclusion, the Court need not analyze Plaintiffs' assertions that jurisdiction also lies under a single-entity theory. Accordingly,