Summary
finding that jury demand constituted waiver of personal jurisdiction objections
Summary of this case from Orner v. Int'l Labs., Inc.Opinion
Civil Action No: 00-0781, Section "C"(1).
August 3, 2000.
ORDER AND REASONS
Denise C. Gackenheimer, a third year law student at Tulane Law School, assisted in the research and preparation of this decision.
This matter comes before the Court on Defendant Commercial Diving Services' ("CDS") motion to dismiss due to a lack of personal jurisdiction or, alternatively, to transfer venue. Having considered the record, the memoranda of counsel and the law, the Court has determined that the motion to dismiss or transfer should be denied for the following reasons.
I. BACKGROUND
The parties appear to agree on the following background facts. On or about August 20, 1999, plaintiff Clarence Richard Nelson ("Nelson"), was employed by CDS, an Alabama corporation, as a diver working off of the M/V CAPTAIN JOHN. He was engaged in a shallow water dive three miles south of Horn Island in Mississippi waters when his diving helmet allegedly came off, causing him to resurface immediately. The plaintiff alleges that the rapid resurfacing caused him severe decompression sickness. Nelson first sought medical treatment in Alabama, unsuccessfully. Then, on the advice of a friend, he came to New Orleans, Louisiana for medical care. After successfully locating treating physicians, Nelson has remained in New Orleans receiving treatment for his alleged injuries.
II. ANALYSIS
A. Waiver of Personal Jurisdiction
A court has personal jurisdiction over a non-resident individual or company when the non-resident defendant's contacts with the forum are such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. See International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154 (1945). CDS's contact with the forum must be substantial, continuous and systematic to establish general jurisdiction. See Helicopteros Nacionales de Columbia, S.A. v. Hall, 468 U.S. 407, 104 S.Ct. 1868 (1984). The Court, however, need not determine whether CDS's contacts with Louisiana were sufficient to establish personal jurisdiction because the Court finds, as explained below, that CDS has already waived any defense of lack of personal jurisdiction.
Under Rule 12(h)(1) of the Federal Rules of Civil Procedure:
A defense of lack of jurisdiction over the person . . . is waived . . . if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.
A defense of lack of personal jurisdiction "made by motion" under Rule 12(h)(1) is governed by subsection (b) of Rule 12, which states in part:
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, or third party claim, shall be asserted in the responsive pleading thereto if one is required, except the following defenses may at the option of the pleader be made by motion . . . (2) lack of jurisdiction over the person. . . . A motion making any of these defenses shall be made before pleading if a further pleading is permitted.
CDS moved for a jury trial on April 3, 2000. In the United States Court of Appeals for the Fifth Circuit, a party waives objections to personal jurisdiction under Rule 12(h)(1) "if (i) [the defense is] omitted from a motion under 12(g), or (ii) if it is neither made by motion under Rule 12 nor included in a responsive pleading or an amendment." Cactus Pipe Supply Co., Inc. v. M/V Mont Marte, 756 F.2d 1103, 1108 (5th Cir. 1985). Because the motion for a jury trial was filed in response to Nelson's complaint, it is a responsive motion. CDS needed to raise the personal jurisdiction issue at this juncture because a party waives any defenses to personal jurisdiction if omitted from its first pleading or appearance. See Broadcast Music, Inc. v. M.T.S. Enterprises, Inc, 811 F.2d 278, 281 (5th Cir. 1987). CDS failed to raise the personal jurisdiction issue in their first motion. Furthermore, CDS effectively waived the right to assert the personal jurisdiction argument by coming to New Orleans and appearing before this Court.
The Fifth Circuit has held that an appearance may arise, albeit, by implication if the defendant seeks to take a step that would be beneficial to himself or detrimental to the opposing party. See Cactus, 756 F.2d at 1108.
CDS's argument that a motion for jury trial is analogous to a motion for an extension of time is erroneous. An extension of time would simply delay the proceedings, while demand for a jury trial is an affirmative action taken by the defense. This jury demand thus constitutes a pleading which waives any objection to personal jurisdiction under Rule 12(h).
For these reasons, the Court finds that CDS has waived its defense of lack of personal jurisdiction.
B. Dismissal Due to Forum Non Conveniens
CDS seeks, in the alternative, to transfer the case to a court in Alabama. The Court will consider CDS's motion as a motion to transfer venue governed by 28 U.S.C. § 1404 (a), which provides that a court may transfer venue in a case "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."
The decision to transfer rests within the discretion of the district court. See Peteet v. Dow Chemical Co., 868 F.2d 1428, 1436 (5th Cir. 1989). Courts have looked to the Supreme Court's analysis of forum non conveniens in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct 839 (1947), to highlight important factors to be taken into consideration when granting a motion for change of venue. See Koehring Co. v. Hyde Constr. Co., 324 F.2d 295, 296 (5th Cir. 1964); Fountain v. John E. Graham and Sons, Civ. A. 90-2865, 1991 WL 28980, at *1 (E.D. La. Feb. 25, 1991). These factors include: (1) the access to sources of proof; (2) availability of compulsory process for the attendance of unwilling witnesses; (3) the cost associated with the attendance of willing witnesses; (4) the possibility of the jury viewing the location of the incident in question, when appropriate; and (5) all other practical matters that may make the trial of a case easier, more expeditious and less expensive. See Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843; see also Koehring, 324 F.3d at 296; Fountain, 1991 WL 28980 at *1. Also, the plaintiff's choice of forum should be given significant weight when balancing these factors. See Peteet, 868 F.2d at 1436. As the Court analyzes the facts in this case, it looks to these factors for guidance.
Regarding the sources of proof, neither party disputes that the incident took place in Mississippi waters. However, because it was an offshore incident, it is highly unlikely that the jury would view the site of the incident.
The location of the trial is an issue because the witnesses will need to travel to the courthouse. There are some fact witnesses that the defense intends to call who reside in Mobile, Alabama. However, there are several more medical experts, Nelson's treating physicians, who are located in the New Orleans area. The expense of obtaining their testimony at trial is estimated to exceed $20,000. The expense of transporting CDS's witnesses probably will not approach that figure.
This is the estimated cost given to the Court in plaintiff's Sur Reply Brief, page 5, dated June 22, 2000.
See Plaintiff's Sur Reply Brief, page 5, dated June 22, 2000.
Regarding the convenience of the parties, Nelson currently resides in New Orleans receiving medical treatment, although he is a permanent resident of Mobile, Alabama. CDS is incorporated in Alabama, with its headquarters in Mobile. If the case is sent to Alabama, it will be inconvenient to Nelson; however, if it remains here, it will be inconvenient to CDS.
The last factor to weigh is the plaintiff's choice of forum. The plaintiff is entitled to choose the forum in which the case is brought.See Menendez Rodriguez v. Pan Am. Life Ins. Co., 311 F.2d 429, 434 (5th Cir. 1962), vacated on other grounds, 376 U.S. 779, 84 S.Ct. 1130 (1964). Nelson is currently located in New Orleans. His decision to file suit in New Orleans is logical because the vast majority of his medical treatment has occurred, and continues to occur, in New Orleans. The cost of the experts testifying in Mobile could be considerably more than the cost of bringing the fact witnesses to New Orleans. The cost of the defendants coming to New Orleans for the trial appears to be negligible and nonetheless would be reimbursed through a third party insurance company.
See id.
Given the facts of the case, the Court finds that Nelson's choice of forum should prevail over CDS's request to transfer venue.
III. CONCLUSION
IT IS THEREFORE ORDERED that the Defendant Commercial Diving Services' motion for dismissal or, alternatively, for transfer of venue (Rec. Doc. 8) is hereby DENIED.
New Orleans, Louisiana, this 2nd day of August 2000.