Opinion
CIVIL ACTION NO: 03-1399, SECTION: "R"
February 27, 2004
ORDER AND REASONS
Before the Court is the motion of defendant RiskFactor Solutions, Ltd., to dismiss for lack of personal jurisdiction. For the following reasons, the Court denies RiskFactor's motion.
I. BACKGROUND
This suit arises out of contracts entered between plaintiff Rogers, Lynch and Associates, LLC and defendant RiskFactor. Rogers Lynch contends that the parties entered into three contracts, two written and one oral. Rogers Lynch is a Louisiana limited liability company, and its business consists primarily of financial fraud detection and deterrence and financial data analysis and interpretation. Rogers Lynch's client base includes banks and commercial finance companies. RiskFactor is incorporated in and has its principal place of business in the United Kingdom. RiskFactor provides analytical software for commercial finance, invoice finance, and asset-based lending industries. RiskFactor attests that it does not have any offices in or employees based in the United States.
Pla.'s Opp. to Mot. to Dismiss, Affidavit of Penny Lynch.
Id.
Def.'s Mot. to Dismiss, Ex. 1, Affidavit of Timothy Yates.
The parties entered into a written distribution agreement in June 2001, under which Rogers Lynch agreed to market and sell sublicenses for RiskFactor software to customers in the United States. Rogers Lynch never sold the RiskFactor software in the United States, which Rogers Lynch contends was the result of RickFactor's failure to provide the necessary software information. In August 2001, the parties entered into a second written agreement, under which RiskFactor agreed to integrate certain source code allegedly owned by Rogers Lynch into RiskFactor's software products that it marketed and sold in Northern Europe. RiskFactor never integrated the source code, which RiskFactor contends was because Rogers Lynch did not author, own or hold the copyright to the necessary source code.
Rogers Lynch asserts that the parties entered into a third agreement, an oral agreement under which RiskFactor agreed to sell Rogers Lynch software products on a standalone basis in Europe and remit royalty payments to Rogers Lynch for each sale. Rogers Lynch concedes that RiskFactor has remitted money in connection with these individual sales but contends that RiskFactor has not remitted all that is due to Rogers Lynch.
Penny Lynch, a principal of Rogers Lynch, attests that the relationship between the parties began in late 1999 or early 2000, when she contacted RiskFactor after a Rogers Lynch client told her that RiskFactor was looking for a United States distributer. She states that in October 2000, she met representatives of Management Information Principles, Ltd. ("MIP"), RiskFactor's predecessor, at a Commercial Finance Association conference in New Orleans, Louisiana, and the parties discussed distribution of RiskFactor's software in the United States by Roger Lynch. Lynch indicates that the MIP directors, who were based in Australia, confirmed that MIP was interested in marketing its RiskFactor software in the United States, including Louisiana, and that their previous efforts to find a distributor had been unsuccessful. Correspondence from an MIP director dated October 23, 2000 expressed MIP's hope that they could "do business together and create highly successful solutions for American customers." Other correspondence from MIP indicated that, if Rogers Lynch identified an interested customer, representatives from MIP would come to the United States to discuss the product with the customer. MIP initially proposed a number of options for the distribution agreement in an e-mail dated November 1, 2000. In an e-mail dated November 14, 2000, MIP expressed its disappointment that Rogers Lynch had decided not to promote RiskFactor in the United States. MIP indicated that establishing a relationship can be a slow process for it, because it had been "unsuccessful in the US in the past, so [it was] trying to get it right this time," The e-mail also stated that because the relationship with Rogers Lynch had not worked out, MIP would "actively now search for other partners [.]" Lynch attests that Rogers Lynch had initially backed off because of delays in receiving a product from RiskFactor to show potential customers, but that the parties later agreed to go forward. Rogers Lynch met with Timothy Yates, a RiskFactor director based in England, in December 2000 in Ireland at another conference. Yates attests that there was no contact between the parties between January and April of 2001. He asserts that the negotiations that led to the distribution agreement occurred only during May and June of 2001 and did not occur in Louisiana. Roger Lynch, on the other hand, contends that the negotiations began in October 2000, and the parties continued to communicate and negotiate until they signed the agreement in June of 2001. There is a gap in the chronicle of communications between the parties. The parties submitted e-mail correspondence from December 2000 that indicates that the parties planned to speak again in January 2001. The correspondence picks up again on April 1, 2001 with an e-mail from Rogers Lynch to MIP. The content of the April 1 e-mail refers to topics that the parties had apparently discussed recently, which suggests that the parties continued to communicate about an agreement. Nevertheless, Yates insists that RiskFactor phone records reflect that it did not make any phone calls to Rogers Lynch during the period from January through March 2001.
Pla.'s Opp. to Mot. to Dismiss, Affidavit of Penny Lynch.
Pla.'s Opp. to Mot. to Dismiss, Affidavit of Penny Lynch, Ex. 3, E-mail from MIP to Rogers Lynch dated Oct. 23, 2000.
Id., Ex.3, E-mail from MIP to Rogers Lynch dated Oct. 23, 2000; Ex. 4, Letter from MIP to Rogers Lynch dated Oct. 23, 2000.
Id., Ex. 5, E-mail from MIP to Rogers Lynch dated Nov. 1, 2000.
Id., Ex. 6, E-mail from MIP to Rogers Lynch dated Nov. 14, 2000.
Id.
Id.
Pla.'s Opp. to Mot. to Dismiss, Affidavit of Penny Lynch; Id., Ex. 7, E-mail from MIP to Rogers Lynch dated Nov. 15, 2000.
Def.'s Reply in Support of its Mot. to Dismiss, Ex. 2, E-mail from Rogers Lynch to MIP dated Dec. 15, 2000.
Id., Ex. 3, E-mail from Rogers Lynch to MIP dated Apr. 2, 2001.
Id.,
Id., Ex. 6, Second Supplemental Declaration of Timothy Yates.
Rogers Lynch traveled to England in May 2001 at its own expense to negotiate the distribution agreement and receive training on the RiskFactor software. According to Lynch, representatives from both Rogers Lynch and RiskFactor later met with a prospective Rogers Lynch client in New York City on June 14, 2001. She attests that RiskFactor presented Rogers Lynch with a written proposed distribution agreement. Although Yates attests that Rogers Lynch drafted the agreement, not RiskFactor, e-mail correspondence reflects that RiskFactor e-mailed the first draft of the distribution agreement to Rogers Lynch on May 21, 2001. The parties discussed the draft in New York City and via e-mail correspondence and telephone conversations between England and Louisiana. Rogers Lynch executed the distribution agreement in Louisiana, and RiskFactor executed the agreement in England.
Def.'s Mot. to Dismiss, Affidavit of Timothy Yates.
Def.'s Suppl. Reply in Support of its Mot. to Dismiss, Suppl. Affidavit of Timothy Yates, Ex. C, E-mail from RiskFactor to Rogers Lynch dated May 21, 2001.
Pla.'s Opp. to Mot. to Dismiss, Affidavit of Penny Lynch.
Def.'s Mot. to Dismiss, Affidavit of Timothy Yates.
The distribution agreement grants Rogers Lynch the right to market and license for use certain RiskFactor products within the United States. The agreement contains the following provision entitled "Governing Law and Jurisdiction:"
Pla.'s Opp. to Mot. to Dismiss, Affidavit of Penny Lynch, Ex. 9, Distribution Agreement.
The parties acknowledge that [RiskFactor] is the proponent of this Agreement and of the business transactions embodied herein. The construction and performance of this Agreement shall be governed by the laws of the State of Louisiana, excluding its conflict and choice of law provisions, and the parties hereto consent to the personal and exclusive jurisdiction and venue of the Louisiana Courts. However, either party may seek injunctive relief in any court of competent jurisdiction to enforce its Intellectual Property Rights.
Id., Section 11.6.
The parties initialed every page of the agreement. The term of the agreement was one year, with automatic one year extensions unless a party gave the other written notice of its intent to terminate 60 days in advance of the end of the original term or any extension period.
Id. at pp. 1-26, Appendices A-O.
Id., Section 10.1.
Lynch attests that through the negotiation of the distribution agreement, Rogers Lynch provided information about its software product named S.T.A.R.S., and RiskFactor expressed interest in marketing it to one of its potential customers. Rogers Lynch drafted, and the parties executed, an agreement to give RiskFactor the right to integrate elements of S.T.A.R.S. into its suite of products. The contract includes the following provision:
The construction and performance of this agreement shall be governed by the laws of the State of Louisiana. The Courts of the State of Louisiana shall be the exclusive forum for any judicial determination of the rights, duties and obligations of the parties to this agreement and their respective heirs, successors and assigns.
Pla.'s Opp. to Mot. to Dismiss, Affidavit of Penny Lynch, Ex. 10, S.T.A.R.S.TM Source Code Confidentiality Agreement.
Again, the parties initialed each page of the agreement. Although RiskFactor never integrated elements of the S.T.A.R.S. software into its suite of products, it later sold the S.T.A.R.S. software on a standalone basis and remitted payments in connection with these sales to Rogers Lynch in Louisiana. Rogers Lynch contends that the parties orally agreed on the terms for RiskFactor's standalone sales of S.T.A.R.S.
Id.
II. DISCUSSION
A. Personal Jurisdiction
When, as here, a nonresident defendant moves to dismiss for lack of personal jurisdiction, the plaintiff shoulders the burden of establishing jurisdiction over the defendant. See Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985). In deciding the jurisdictional issue, a court may consider affidavits, interrogatories, depositions, "or any combination of the recognized methods of discovery." Spademan, 772 F.2d at 1192 (citation omitted). Here, the Court allowed defendant to continue the oral argument on this motion to conduct discovery and directed the parties to submit evidence on the motion to dismiss in the form of written submissions. In deciding this motion, the Court considered affidavits, depositions, interrogatory responses, and documentary evidence produced during the course of discovery.
Rec. Doc. 23.
A court has personal jurisdiction over a nonresident defendant if (1) the forum state's long-arm statute confers personal jurisdiction over that defendant, and (2) the forum state's exercise of jurisdiction complies with the Due Process Clause of the Fourteenth Amendment. See Latshaw v. Johnson, 167 F.3d 208, 211 (5th Cir. 1999). Louisiana's long-arm statute extends jurisdiction to the full limits of due process. LA. REV. STAT. § 13:3201(B). Therefore, the Court need determine only whether the proposed exercise of jurisdiction satisfies the Due Process Clause. See Guidry v. United States Tobacco Co., 188 F.3d 619, 624 (5th Cir. 1999) (citing Petroleum Helicopters, Inc. v. Avco Corp., 513 So.2d 1188, 1192 (La. 1987)). The exercise of personal jurisdiction over a nonresident defendant satisfies due process when (1) the defendant has purposefully availed itself of the benefits and protections of the forum state by establishing "minimum contacts" with that state, and (2) exercising personal jurisdiction over the defendant does not offend "traditional notions of fair play and substantial justice." Latshaw, 167 F.3d at 211 (citing International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158 (1945)). The contacts with the forum state must be such that the defendant "should reasonably anticipate being haled into court" there. Latshaw, 167 F.3d at 211 (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567 (1980)).
Personal jurisdiction may be either specific or general. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984); Wilson v. Belin, 20 F.3d 644, 647 (5th Cir. 1994). A court may exercise specific jurisdiction over a nonresident defendant when the claim asserted against the defendant arises out of or relates to his contacts with the forum state. See Helicopteros, 466 U.S. at 414 n. 8; Wilson, 20 F.3d at 647. To determine whether specific jurisdiction exists, courts examine whether the defendant purposefully availed itself of the privileges of conducting activities in the forum state, and whether the cause of action arises out of or relates to those activities. See Guidry, 188 F.3d at 625; D.J. Investments, Inc. v. Metzeler Motorcycle Tire Agent Gregg, Inc., 754 F.2d 542, 547-48 (5th Cir. 1985). A single act by the defendant directed at the forum state can be enough to confer personal jurisdiction if the cause of action arises out of that act. See Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 419 (5th Cir. 1993).
General jurisdiction exists when the defendant engaged in "systematic and continuous" activities in the forum state. See Helicopteros, 466 U.S. at 414 n. 9; Wilson, 20 F.3d at 647. Contacts between a defendant and the forum state must be "extensive" to satisfy the "systematic and continuous" test. Submersible Systems, Inc. v. Perforadora Central, S.A. de C.V., 249 F.3d 413, 419 (5th Cir. 2001).
B. Analysis
Plaintiff argues that there are two bases for personal jurisdiction in this case. First, plaintiff contends that the forum selection clauses in the written contracts are sufficient to establish personal jurisdiction over defendant. Second, plaintiff argues that defendant's contacts with Louisiana are sufficient to establish specific personal jurisdiction as to the contracts at issue. The Court addresses each argument in turn.
1. Forum Selection Clause
Federal law applies in the context of motions to dismiss based on forum selection clauses in diversity cases. See Haynsworth v. The Corporation, 121 F.3d 956, 962 (5th Cir. 1997). In the context of international transactions, such as the ones in this case, the Supreme Court has concluded that "federal courts presumptively must enforce forum selection clauses [.]" Id. (citing The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9 (1972)); see also Rodriguez v. Class Travel Worldwide, L.L.C., 2000 WL 222165, at *2 (E.D.La.). As the Haynsworth Court noted, the Supreme Court has consistently followed this rule and enforced every forum selection clause in an international contract that has come before it. Id. Public policy weighs strongly in favor of enforcement of the forum selection clause in a case such as this because enforcement eliminates the uncertainties that inevitably arise in international disputes about the proper forum, and because the ability to "agree in advance on a forum acceptable to both parties is an indispensable element in international trade, commerce, and contracting." The Bremen, 407 U.S. at 13-14.
The presumption of enforceability may be overcome by a strong showing that the clause is "`unreasonable' under the circumstances." The Bremen, 407 U.S. at 10. The Supreme Court identified four situations that are potentially unreasonable: when "(1) the incorporation of the forum selection clause into the agreement was the product of fraud or overreaching; (2) the party seeking to escape enforcement `will for all practical purposes be deprived of his day in court' because of the grave inconvenience or unfairness of the selected forum; (3) the fundamental unfairness of the chosen law will deprive the plaintiff of a remedy; or (4) enforcement of the forum selection clause would contravene a strong public policy of the forum state." Haynsworth, 121 F.3d at 963 (citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991)); The Bremen, 407 U.S. at 12-13, 15, 18). The party that seeks to overcome the presumption of enforceability has a "heavy burden of proof." The Bremen, 407 U.S. at 17. The Court considers defendant's arguments in light of this heavy burden.
Defendant focuses on the fourth factor and argues that enforcement of the forum selection clauses would contravene Louisiana public policy. Defendant points to Louisiana Revised Statute 51:1407 that provides:
Restraining prohibited acts. Whenever the director and the attorney general have reason to believe that any person is using, has used, or is about to use any method, act, or practice declared by R.S. 51:1405 to be unlawful, the director may instruct the attorney general to bring an action for injunctive relief in the name of the state against such person to restrain and enjoin the use of such method, act, or practice. The action may be brought in the district court having civil jurisdiction in any parish in which such person resides, or is domiciled or has his principal place of business, or in any parish in which such person did . . . business, or, with consent of the parties, may be brought in the district court of the parish where the state capitol is located. In the event that such person was located outside of the state, but was soliciting in the state by mail, telephone, or any electronic communication, the action may be brought in the district court having civil jurisdiction in the parish in which the contact was made. It being against the public policy of the state of Louisiana to allow a contractual selection of venue or jurisdiction contrary to the provisions of the Louisiana Code of Civil Procedure, no provision of any contract which purports to waive these provisions of venue, or to waive or select venue or jurisdiction in advance of the filing of any civil action/ may be enforced against any plaintiff in an action brought in these courts. These courts are authorized to issue temporary restraining orders or preliminary and permanent injunctions to restrain and enjoin violations of this Chapter, and such restraining orders or injunctions shall be issued without bond.
LA. R.S. 51:1407 (emphasis added). Defendant argues that the emphasized statement, located within the Louisiana Unfair Trade Practices and Consumer Protection Law ("LUTPCPL"), indicates that enforcement of the forum selection clauses would contravene Louisiana public policy in this case, in which the plaintiff alleges a claim under the LUTPCPL.
The Court finds that defendant has failed to meet its heavy burden to establish that the forum selection clause is unreasonable. First of all, the anti-forum selection provision of Louisiana Revised Statute 51:1407 does not apply here. The provision states that a forum selection clause cannot "be enforced against any plaintiff in these courts." LA. R.S. 51:1407. Here, the defendant is not seeking to enforce the clause against the plaintiff. Rather, a Louisiana plaintiff seeks to enforce the clause against the defendant. Therefore, the statute is, on its face, not applicable. Moreover, in Lejano v. K.S. Bandak, 705 So.2d 158, 171 (La. 1997), the Louisiana Supreme Court held that the anti-forum selection provision in La. Rev. Stat. 51:1407 is "limited in scope to transactions or interactions between out-of-state, professional telephone solicitors and Louisiana residents[.]" Id. Such a limiting interpretation by the state's highest court is binding on this Court. See Chevron USA, Inc. v. Vermillion Parish Sch. Bd., 128 F. Supp.2d 961, 967 (W.D.La. 2001) (quoting Texas Dept. of Housing 6c Community Affairs v. Verex Assurance, 68 F.3d 922, 928 (5th Cir. 1995)). Further, in Rodriguez, 2000 WL 222165, at *2, Judge Morey Sear of this district acknowledged the Louisiana Supreme Court's interpretation and suggested that the provision was further limited to actions brought by the state attorney general to enjoin unfair trade practices because that is the statutory context in which the provision appears. Judge Sear rejected application of the provision in a case like this one, in which a private plaintiff asserts a Louisiana unfair trade practices claim
Although Louisiana appellate court cases reach conflicting conclusions on the applicability of the anti-forum selection provision in La. Rev. Stat. 51:1407, these decisions are not binding on this Court, and none of them involved an international contract that implicates the strong case law favoring enforcement of forum selection clauses in the international context. Compare Tulane Indus. Laundry, Inc. v. Quality Lube Oil, Inc., 779 So.2d 99, 102 (La.App. 4 Cir. 1/14/01) (holding in contract action that jurisdiction and venue waivers were against Louisiana public policy embodied in La. Rev, Stat. 51:1407); La. Safety Assoc. of Timbermen Self Ins. Fund v. A-l Pallet Co., 855 So.2d 895, 898 (La.App. 4 Cir. 9/24/03) (questioning in dicta the validity of parties' contractual venue provision under Louisiana law and jurisprudence); with Pitts, Inc. v. Ark-La Resources, L.P., 717 So.2d 268, 270 (La.App. 2 Cir. 8/19/98) (upholding a forum selection clause in contract); Luffey v. Federicksburg Properties of rex., 2003 WL 22900625, at *3 (La.App. 2 Cir. 12/10/03) (noting that Louisiana has long held that forum selection clauses are valid and enforceable).
In addition, the clause does not violate Louisiana public policy. Louisiana Revised Statute 51:1407 is a part of Louisiana's Unfair Trade Practices and Consumer Protection Law. The public policy embodied in the statute is the protection of Louisiana residents who sue in Louisiana courts. The forum selection clause in this case does not require a Louisiana resident to submit to a foreign jurisdiction but instead permits the exercise of personal jurisdiction over a non-resident by Louisiana courts. Therefore, enforcement of the clause does not trespass on the underlying public policy of protection of Louisiana residents.
The Court further notes that both the Supreme Court and the Fifth Circuit have rejected public policy defenses to the enforcement of forum selection clauses in light of the high hurdle the opponent of the clause must overcome to demonstrate unreasonableness. In Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974), the United States Supreme Court rejected the argument that the antiwaiver provisions of the federal securities laws required rejection of a forum selection clause in an international contract. The Supreme Court rejected the view that
only United States laws and United States courts should determine this controversy in the fact of a solemn agreement between the parties that such controversies be resolved elsewhere. . . . To determine that "American standards of fairness" . . . must nonetheless govern the controversy demeans the standards of justice elsewhere in the world, and unnecessarily exalts the primacy of United States laws over the laws of other countries.
Scherk, 417 U.S. at 517, n. 11; see also Haynsworth, 121 F.3d at 966. Similarly in Haynsworth, the Fifth Circuit enforced a forum selection clause despite arguments that it violated federal and state public policy embodied in antiwaiver provisions of federal and state securities laws. The Court emphasized all of the same concerns mentioned in Scherk and The Bremen and found additionally that plaintiff's remedies in England were adequate to protect the interests behind the statutes at issue. See Haynsworth, 121 F.3d at 966-70. These cases suggest that "public policy" arguments will, not easily transcend the high hurdle facing the opponent of a forum selection clause even if there is a state policy that is implicated by the enforcement of the clause.
Finally, the enforcement of the forum selection clause in this case does not offend any principles of fairness. Correspondence from RiskFactor indicates that it specifically considered the forum selection clause in the distribution agreement and agreed to the jurisdiction of Louisiana. John Smith, RiskFactor's Sales and Marketing Director, stated, "The only clause we were unable to agree on last week was 11.6 regarding the country/state of jurisdiction where any legal action may need to take place. I have spoken with out lawyer who agrees that the State of Louisiana is acceptable for this contract [.]" RiskFactor, a sophisticated business entity, voluntarily entered into the bargained-for agreement and explicitly agreed to jurisdiction in Louisiana. It did so not once, but twice. Moreover, the Court finds that enforcement of the forum selection clause in this case does not violate principles of fairness or Louisiana public policy in this case because RiskFactor had sufficient minimum contacts to warrant jurisdiction.
Def.'s Suppl. Reply in Support of its Mot. to Dismiss, Suppl. Affidavit of Timothy Yates, Ex. H, E-mail from RiskFactor to Rogers Lynch dates Jun. 18, 2001.
Id.
2. Minimum Contacts
The Court now turns to whether RiskFactor had sufficient minimum contacts with Louisiana to confer specific jurisdiction. The Supreme Court has held that a contract alone is insufficient to confer specific personal jurisdiction:
If the question is whether an individual's contract with an out-of-state party alone can automatically establish minimum contacts in the other party's home forum, we believe the answer clearly is that it cannot. . . . [W]e have emphasized the need for a "highly realistic" approach that recognizes that a "contract" is "ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences, which themselves are the real object of the business transaction." . . . It is these factors-prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing-that must be evaluated in determining whether the defendant purposefully established minimum contacts withing the forum.Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985) (quotes omitted). The Fifth Circuit focuses on the place of contractual performance as central to the determination of whether the a contract with an in-state resident is sufficiently purposeful to satisfy minimum contacts. See Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 337-38 (5th Cir. 1999); Jones v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061, 1068 (5th Cir. 1992) (citation omitted).
In this case, negotiations between RiskFactor and Rogers Lynch related to the contracts at issue occurred in Louisiana, England, and New York, and between Rogers Lynch in Louisiana and RiskFactor in Australia and England via telephone, e-mail, and mail. As noted above, RiskFactor specifically considered the forum selection clause in the distribution agreement and agreed to the jurisdiction of Louisiana in both the distribution and the S.T.A.R.S. agreements. Thus, the negotiations support the conclusion that RiskFactor should have reasonably anticipated being haled into court in Louisiana.
RiskFactor attempts to limit the negotiation of the distribution agreement to May and June of 2001 so that it can argue that all of the contract negotiations occurred outside of Louisiana. To support its argument, RiskFactor points to the gap in communication between the parties between January and April 2001. Defendant submitted copies of phone records from both parties from that period and argues that the absence of phone calls between the parties supports its contention that there was no communication or further negotiations. The Court finds defendant's argument unconvincing. First, the absence of phone calls on the submitted phone records does not conclusively prove that the parties did not contact each other. The Court cannot conclude from the evidence before it that the phone records cover all of the phones at each company, including mobile phones. The parties may also have communicated with each other from home because of the significant time difference between the offices of the two companies. Furthermore, the first correspondence provided by the parties after the alleged "gap" in communications is an e-mail dated April 1, 2001, and the content of the e-mail suggests that the parties had continued to communicate. The letter contains no reference to a gap in communication, and it refers to topics that the parties clearly had discussed before. Thus, RiskFactor's argument is not supported by the record. Moreover, even if there was a gap in the communications as the defendant suggests, this does not require the conclusion that the negotiations in late 2000 were unrelated to the negotiations in April through June 2001. In late 2000, the parties began negotiating an agreement under which Rogers Lynch would distribute RiskFactor software to its customers in the United States. The agreement finally signed by the parties in June of 2001 was the culmination of those negotiations. At oral argument, defendant argued that the negotiations were distinguishable because Rogers Lynch initially negotiated with Steve Hitchman of MIP in Australia, and Hitchman bought out the MIP Australia division. Defendant does not dispute, however, that at the time Rogers Lynch negotiated with Hitchman, he did so as a representative of the defendant. Hitchman's later buyout of the MIP Australia division is of no moment. Defendant's argument is tantamount to the illogical assertion that negotiations begin anew if one of the agents negotiating on behalf of the company quits and a different agent continues the negotiations. Thus, the Court finds defendant's argument that the negotiations occurred entirely outside of Louisiana to be without merit.
RiskFactor's actions clearly demonstrate its intention to promote the sale of its product in Louisiana. RiskFactor entered into an agreement that provides for the distribution of its product to Rogers Lynch clients, which include Louisiana residents. The distribution agreement itself establishes that RiskFactor is the "`proponent'" of the agreement. RiskFactor representatives were more than willing to travel to Louisiana to meet with potential customers that were interested in the RiskFactor software. Correspondence from MIP directors indicates that the company was actively searching for a United States distributor. RiskFactor also wanted to work with Rogers Lynch to "create highly successful solutions for American customers." Further, a RiskFactor brochure states that [i]n early 2001, [RiskFactor] teamed up with Rogers, Lynch Associates LLC in the USA to create a Trans-Atlantic alliance, as our product sets were entirely complementary." These statements further support a conclusion that RiskFactor intended to avail itself of the Louisiana market where Rogers Lynch operated.
Pla.'s Opp. to Mot. to Dismiss, Affidavit of Penny Lynch, Ex. 9, Distribution Agreement.
Id., Ex. 4, Letter from MIP to Rogers Lynch dated Oct. 23, 2000.
Id., Ex. 11, RiskFactor Brochure.
In addition, the performance of the distribution agreement involved material contact by RiskFactor with Louisiana. Although Rogers Lynch never sold any RiskFactor software under the agreement, the Court looks to "the contemplated future consequences" of the agreement. See Burger King, 471 U.S. at 477. As noted above, RiskFactor agreed to come to Louisiana to meet with potential customers to support Rogers Lynch in its performance of the contract. In the contract, RiskFactor agreed to "contribute and participate, subject to resource availability, in marketing activities with [Rogers Lynch] in the [United States]." RiskFactor agreed to provide Rogers Lynch in Louisiana with the software and information necessary to enable Rogers Lynch to promote its software. Also, RiskFactor agreed to "provide technical support locally as and when requested by [Rogers Lynch]." RiskFactor required that it be Rogers Lynch sole source of technical support. Further, RiskFactor agreed to provide any necessary training. Defendant argues that the agreement contemplates training in the United Kingdom because the training provision explicitly states that Rogers Lynch is to bear its own travel expenses related to training. Defendant fails to address the next sentence of the training provision, however, which states that Rogers Lynch will reimburse RiskFactor for travel expenses incurred in connection with additional training. The reference to RiskFactor's travel expenses clearly contemplates travel to Louisiana by RiskFactor to train Rogers Lynch employees. All of these commitments by RiskFactor support the conclusion that the performance of its obligations under the contract involved significant contact with Louisiana.
Id., Ex. 9, Distribution Agreement, Section 4.5.
Id., Section 4.2.1, Appendix L.
Id., Section 4.4.5.
Id., Section 4.2.1.
Also, pursuant to the alleged oral agreement, RiskFactor remitted payments to Rogers Lynch in Louisiana as a result of its standalone sales of Rogers Lynch software.
Defendant cites cases to support its argument that telephone or e-mail communications are insufficient to establish personal jurisdiction and also cites cases for the proposition that remission of payments is insufficient. The Court finds, however, that, in addition to the valid and enforceable forum selection clause, the accumulation of all of the above contacts is sufficient to establish personal jurisdiction in this case.
3. Reasonableness
Finally, once a plaintiff has established minimum contacts, the burden shifts to the defendant to make a "compelling case" that the exercise of jurisdiction is not reasonable. See Wien Air Alaska, 195 F.3d 208, 215 (5th Cir. 1999); Guidry, 188 F.3d at 630. More specifically, the defendant must establish that the exercise of jurisdiction offends traditional notions of fair play and substantial justice. Guidry, 188 F.3d at 630. As the Fifth Circuit has noted, "[i] t is rare to say the assertion is unfair after minimum contacts have been shown." Wien Air Alaska, 195 F.3d: at 215. Among the factors to be considered are the defendant's burden, the forum state's interests, the plaintiffs' interest in convenient and effective relief, courts' interest in efficient resolution of controversies, and the state's shared interest in furthering fundamental social policies. Id. Here, Louisiana has an interest in protecting its residents from unfair trade practices and breaches of contract. In addition, these Louisiana plaintiffs clearly have a strong interest in the convenient administration of justice in a Louisiana forum. Although it is somewhat inconvenient for defendants to litigate this matter in Louisiana, "once minimum contacts are established, the interests of the forum and the plaintiff justify even large burdens on the defendant." Id. Further, this Court is a forum in which the parties can efficiently resolve this controversy. Weighing all of these factors, the Court concludes that exercising jurisdiction over defendants does not violate due process.
III. CONCLUSION
For the foregoing reasons, the Court denies defendant RiskFactor's motion to dismiss for lack of personal jurisdiction.