Citations
- 346 F. Supp. 3d 908
Full opinion text
(Id. at 7). The second amended complaint alleged that, as the Chevron-appointed marine warranty surveyor,
[American] Global Maritime's duties and obligations include, but are not limited to:
• technical engineering review and approval of design bases, engineering drawings, specifications, plans, procedures; and
• review and approval of operational aspects of the installation process of the tendons and ETLP.
(Id. at 8). This complaint alleged that American Global Maritime had: (1) failed to appoint competent personnel to review and certify the tendon installation and (2) failed to "identify and correct the glaring and obvious design errors that led to the collapse of the tendons." (Id. ).
The Underwriters asserted subrogated claims against FloaTEC and American Global Maritime. (Id. at 10). The Underwriters also claimed to have a direct cause of action against American Global Maritime that arose from its "legal duties to [the] Underwriters." (Id. ). The Underwriters asserted claims against American Global Maritime for negligence, negligent misrepresentation, breach of fiduciary duty, products liability, and redhibition.
FloaTEC and American Global Maritime moved to dismiss the Underwriters' claims for failure to state a cause of action on which relief can be granted, or to dismiss the litigation and compel arbitration under an arbitration clause in their Contract with Chevron. (Docket Entries No. 29-30). These defendants argued that they were "Other Assured[s]" under Chevron's Policy, and that the Underwriters had waived subrogation rights against Other Assureds. (Docket Entries No. 29-1 at 4-5, 30-1 at 9). In the alternative, FloacTEC and Global Maritime contended that their Contract with Chevron mandated arbitration. (Docket Entries No. 29-1 at 10, 30-1 at 9).
Eight days later, the Underwriters amended the complaint a third time. (Docket Entry No. 32). They added three foreign companies as defendants: Global Maritime Group, Global Maritime Consultancy, and Global Maritime Holdings. (Id. at 1). The Underwriters alleged that this Texas court has personal jurisdiction over these companies, both because American Global Maritime's contacts could be attributed to them and because they had sufficient contacts with Texas. (Id. at 5-6). The allegations and claims relating to the Project were the same.
This court granted FloaTEC's motion to dismiss and denied American Global Maritime's motions to dismiss and to compel arbitration. (Docket Entry No. 63). The court determined that FloaTEC and American Global Maritime were Other Assureds under the Policy. (Id. at 18). The court dismissed the claims against FloaTEC with prejudice because "they are subrogated claims," which the Underwriters had waived. (Id. ). The dismissal was based on an inability to recover as a matter of law, making pleading amendment futile. The court found, however, that the Underwriters' claims against American Global Maritime were "pleaded as direct tort claims rather than as claims brought as a subrogee of Chevron." (Id. ). The court ruled that "the Underwriters have stated a plausible tort claim against American Global Maritime that does not depend on a subrogated assertion of Chevron's rights." (Id. ). The court's Memorandum and Opinion stated:
A Louisiana court might reject the Underwriters' direct tort claims against American Global Maritime as impermissible artful pleading, or find that, in this case, public policy strongly militated against concluding that American Global Maritime owed the Underwriters a tort duty. Or a Louisiana court could find that this unusual set of facts justified an extension of the antisubrogation rule to bar any claim that, while not pleaded as a subrogated claim with the insurer standing in the shoes of its insured, would nonetheless have the functional effect of reimbursing an insurer for payments it made under the policy. But American Global Maritime has provided neither authority nor argument to support these approaches.... American Global Maritime is free to provide authority and argument in support of its positions at summary judgment.
(Id. at 21). The court denied American Global Maritime's motion to compel arbitration because the Underwriters' claims against it did not arise from its Contract with Chevron. (Id. ).
American Global Maritime answered the third amended complaint, denying the allegations or stating that it had insufficient information to admit or deny them. (Docket Entry No. 64). American Global Maritime admitted that Chevron appointed it as the marine warranty surveyor on the Project and that written contracts existed to that effect. (Id. at 6). American Global Maritime's answer asserted as defenses that Chevron or other parties had caused the tendon failure, that Louisiana's anti-subrogation rule barred the claims, and that the tendon detachment resulted from an act of God or from force majeure. (Id. at 13-14).
The foreign companies moved to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). (Docket Entry No. 65). They argued that this Texas court could exercise neither general nor specific personal jurisdiction over them. As to general jurisdiction, the foreign companies alleged that they had no affiliations with the State of Texas. As to specific jurisdiction, they asserted that they lacked sufficient contacts with Texas relating to the Project. The foreign companies also argued that American Global Maritime's contacts with Texas could not be attributed to them because they are separate and independent entities that have no control over American Global Maritime. To support their arguments, directors from Global Maritime Group, Global Maritime Consultancy, and American Global Maritime submitted affidavits stating that the foreign companies did not work on the Project, do not have contacts with Texas, do not control American Global Maritime, and maintain accounts and records separate from American Global Maritime. (Docket Entries No. 65-3-65-5).
The Underwriters responded, arguing that the foreign companies wholly controlled American Global Maritime, so that its Texas contacts could be imputed to them. (Docket Entry No. 83 at 6). The Underwriters contended that this court has jurisdiction because the foreign companies have marketed themselves and their services or products in Texas, hired Texas residents, sent employees to Texas, and worked on Texas projects. (Id. ). Lastly, the Underwriters argued that the court should exercise jurisdiction under Federal Rule of Civil Procedure 4(k)(2) because the case arose under federal law and the foreign companies had received service under the Hague Convention and had sufficient contacts with the United States. (Id. ).
The foreign companies replied, maintaining that they lacked sufficient contacts with either Texas or the United States and that American Global Maritime's contacts could not be imputed to them because they are distinct and separate entities. (Docket Entry No. 100). They attached documents to support dismissal, including American Global Maritime's financial statements for 2013 and 2014, Chevron and American Global Maritime's Contract, board-meeting minutes, and affidavits from board members of Global Maritime Holding and Global Maritime Consultancy. (Docket Entry No. 100-1).
American Global Maritime moved for summary judgment. (Docket Entries No. 97-98). It argued that it did not have a fiduciary relationship with the Underwriters; that it did not owe the Underwriters a tort duty under Louisiana law; and that Louisiana's confusion doctrine extinguished the claims against it. (Document Entry No. 98 at 9-10). American Global Maritime attached the Underwriters's Policy with Chevron and the Contract between Chevron and American Global Maritime. (Docket Entry No. 98-1-98-2).
The Underwriters responded, maintaining that American Global Maritime does not have Other Assured status and that the insurance and indemnity clauses in American Global Maritime's Contract with Chevron disclaimed rights under the Policy relating to the Project. The Underwriters also argue that American Global Maritime breached duties owed to them under negligent-misrepresentation and negligent-professional-undertaking theories and that the anti-subrogation rule does not bar these claims. The Underwriters argue that the confusion doctrine is inapplicable because the duty that American Global Maritime owed them as a marine warranty surveyor differed from the obligation that the Underwriters owed American Global Maritime as insurers.
Each motion, argument, and response is considered below.
III. The Motion to Dismiss for Lack of Personal Jurisdiction
The foreign companies move to dismiss under Rule 12(b)(2) of the Federal Rules of Civil Procedure. When a nonresident defendant challenges personal jurisdiction, the plaintiff bears the burden of demonstrating sufficient facts to support jurisdiction. Stuart v. Spademan , 772 F.2d 1185, 1192 (5th Cir. 1985). "The court may determine the jurisdictional issue by receiving affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery." Id. "When the district court rules on a motion to dismiss for lack of personal jurisdiction 'without an evidentiary hearing, the plaintiff may bear his burden by presenting a prima facie case that personal jurisdiction is proper.' " Quick Techs., Inc. v. Sage Grp. PLC , 313 F.3d 338, 343 (5th Cir. 2002) (quoting Wilson v. Belin , 20 F.3d 644, 648 (5th Cir. 1994) ). The court "must accept as true the uncontroverted allegations in the complaint and resolve in favor of the plaintiff any factual conflicts." Stripling v. Jordan Prod. Co., LLC , 234 F.3d 863, 869 (5th Cir. 2000) (quoting Latshaw v. Johnston , 167 F.3d 208, 211 (5th Cir. 1999) ). The court is not obligated to credit conclusory allegations, even if uncontroverted. Panda Brandywine Corp. v. Potomac Elec. Power Co. , 253 F.3d 865, 868 (5th Cir. 2001).
a. The Legal Standards
A federal court sitting in diversity may exercise personal jurisdiction over a nonresident defendant if the long-arm statute of the forum state confers personal jurisdiction over that defendant and the exercise of jurisdiction by the forum state is consistent with due process under the United States Constitution. Delgado v. Reef Resort Ltd. , 364 F.3d 642, 644 (5th Cir. 2004). The Texas long-arm statute confers jurisdiction to the limits of due process. Stroman Realty, Inc. v. Antt , 528 F.3d 382, 385 (5th Cir. 2008) ; see TEX. CIV. PRAC. & REM. CODE ANN. § 17.041 -045; see also Religious Tech. Ctr. v. Liebreich , 339 F.3d 369, 373 (5th Cir. 2003). Due process permits the exercise of personal jurisdiction over a nonresident defendant when that defendant has "minimum contacts" with the forum state and the exercise of jurisdiction over the defendant does not offend "traditional notions of fair play and substantial justice." Johnston v. Multidata Sys. Int'l Corp. , 523 F.3d 602, 609 (5th Cir. 2008) (quoting Wilson , 20 F.3d at 647 ). The Underwriters have the burden of demonstrating facts sufficient to establish a prima face case for personal jurisdiction over the foreign companies.
"Minimum contacts" can be established through evidence of "contacts that give rise to 'specific' personal jurisdiction and those that give rise to 'general' personal jurisdiction." Wilson , 20 F.3d at 647. A court may exercise specific jurisdiction when the nonresident defendant's contacts with the forum state arise from, or are directly related to, the cause of action. Gundle Lining Constr. Corp. v. Adams Cty. Asphalt, Inc. , 85 F.3d 201, 205 (5th Cir. 1996) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall , 466 U.S. 408, 414 n.8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) ). To determine specific jurisdiction, a court must "examine the relationship among the defendant, the forum, and the litigation to determine whether maintaining the suit offends traditional notions of fair play and substantial justice." Id. (citing Shaffer v. Heitner , 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) ). Even a single contact can support specific jurisdiction if the defendant "purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." Burger King Corp. v. Rudzewicz , 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Hanson v. Denckla , 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) ). "The non-resident's 'purposeful availment' must be such that the defendant 'should reasonably anticipate being haled into court' in the forum state." Ruston Gas Turbines, Inc. v. Donaldson Co., Inc. , 9 F.3d 415, 419 (5th Cir. 1993) (citing World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) ). Specific jurisdiction requires a "sufficient nexus" between the nonresident defendant's contacts forum contacts and at least one of the causes of action. Rittenhouse v. Mabry , 832 F.2d 1380, 1390 (5th Cir. 1987). As part of the minimum-contacts analysis, a court evaluates any contracts, the parties'
"actual course of dealing," and the parties' "prior negotiations and contemplated future consequences." Burger King , 471 U.S. at 479, 105 S.Ct. 2174.
When the cause of action does not arise from or relate to the foreign defendant's purposeful conduct within the forum state, general jurisdiction may apply. Due process requires that the foreign defendant have engaged in continuous and systematic contacts with the forum state before a court may exercise general personal jurisdiction. Helicopteros Nacionales , 466 U.S. at 414-15, 104 S.Ct. 1868 ; Bearry v. Beech Aircraft Corp. , 818 F.2d 370, 374 (5th Cir. 1987). The plaintiff must demonstrate contacts of a more extensive quality and nature between the forum state and the nonresident defendant than those needed to support specific jurisdiction. Dalton v. R & W Marine , 897 F.2d 1359, 1362 (5th Cir. 1990). "To exercise general jurisdiction, the court must determine whether 'the contacts are sufficiently systematic and continuous to support a reasonable exercise of jurisdiction.' " Holt Oil & Gas Corp. v. Harvey , 801 F.2d 773, 777 (5th Cir. 1986) (quoting Stuart , 772 F.2d at 1191 ).
"[F]ederal courts have consistently acknowledged that it is compatible with due process for a court to exercise personal jurisdiction over an individual or a corporation that would not ordinarily be subject to personal jurisdiction in that court when the individual or corporation is an alter ego or successor of a corporation that would be subject to personal jurisdiction in that court." Patin v. Thoroughbred Power Boats Inc. , 294 F.3d 640, 653 (5th Cir. 2002). "Likewise, when a group of affiliated corporations constitutes a single business enterprise, a court may 'disregard the concept of corporate separateness and extend liability to each of the affiliated corporations' for the purpose of preventing fraud or achieving equity." In re Ark-La-Tex Timber Co., Inc. , 482 F.3d 319, 335 (5th Cir. 2007) (quoting Brown v. Auto. Cas. Ins. Co. , 644 So.2d 723, 727 (La. App. 1st Cir. 1994) ; Lee v. Clinical Research Ctr. of Fla., L.C. , 889 So.2d 317, 323 (La. App. 4th Cir. 2004) ); see Bona Fide Demolition & Recovery, LLC v. Crosby Constr. Co. of La., Inc. , 690 F.Supp.2d 435, 443-44 (E.D. La. 2010).
b. Analysis
The parties do not dispute that the court has personal jurisdiction over American Global Maritime. The parties do dispute that American Global Maritime's contacts can be imputed to the foreign companies, or that the foreign companies have sufficient Texas contacts under either Texas's long-arm statute or Federal Rule of Civil Procedure 4(k)(2). (Docket Entry No. 83 at 3-4). Addressing each of the Underwriters' theories in turn, the analysis set out below concludes that the Underwriters fail to make out a prima facie case for personal jurisdiction. The court denies the Underwriters' request for discovery because the discovery requested would not yield information sufficient to make out a prima facie case. The court therefore grants the foreign companies' motion to dismiss under Federal Rule of Civil Procedure 12(b)(2).
1. Contact Imputation: The Law That Applies
The threshold issue is which state's law applies to the issue of imputing contacts from the resident to nonresident defendants. "Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons." Walden v. Fiore , 571 U.S. 277, 283, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014) (quoting Daimler AG v. Bauman , 571 U.S. 117, 125, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014) ). "This is because a federal district court's authority to assert personal jurisdiction in most cases is linked to service of process on a defendant 'who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.' " Id. (quoting FED. R. CIV. P. 4(k)(1)(A) ).
A federal court sitting in Texas applies Texas law on personal jurisdiction and, in this case, applies Louisiana's substantive law under the Outer Continental Shelf Lands Act, 43 U.S.C. § 1333(a)(2)(A). (Docket Entry No. 63 at 3-4). The choice-of-law question is whether Texas or Louisiana law applies to the issue of imputing contacts from American Global Maritime to the foreign companies. Cf. Adm'rs of Tulane Educ. Fund v. Ipsen, S.A. , 450 F. App'x 326, 330 n.5 (5th Cir. 2011) ("Where federal jurisdiction is based on diversity of citizenship, this court applies the applicable state law to determine whether contacts should be imputed to a parent company due to an alter-ego or agency relationship."). Texas has adopted the conflict-of-law principles in the Restatement (Second) of Conflict of Laws, which directs courts to apply the law of the state that has the "most significant relationship" with the "particular substantive issue." Ford Motor Co. v. Leggat , 904 S.W.2d 643, 646-47 (Tex. 1995) (citing Duncan v. Cessna Aircraft Co. , 665 S.W.2d 414, 421 (Tex. 1984) ). It appears that the Texas conflict rules apply to determine which state's law applies. Klaxon Co. v. Stentor Elec. Mfg. Co. , 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).
The Fifth Circuit has not resolved this "complicated" question. Jackson v. Tanfoglio Giuseppe, S.R.L. , 615 F.3d 579, 587 (5th Cir. 2010). This court need not resolve the issue if the state laws "relevant to the set of facts are the same, or would produce the same decision in the lawsuit." In re Chinese-Manufactured Drywall Prods. Liab. Litig. , 753 F.3d 521, 529 (5th Cir. 2014) (quoting Phillips Petro. Co. v. Shutts , 472 U.S. 797, 839 n.20, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985) ); Mumblow v. Monroe Broad., Inc. , 401 F.3d 616, 620 (5th Cir. 2005). The law of the forum state applies if there is no conflict between the substantive state law. Schneider Nat'l Transp. v. Ford Motor Co. , 280 F.3d 532, 536 (5th Cir. 2002). The Texas and Louisiana laws on imputing contacts are so similar that the court need not decide if Louisiana rather than Texas law applies.
In Texas, a subsidiary corporation's contacts can be imputed to its parent corporation when the subsidiary "is organized and operated as a mere tool or business conduit" of the parent. Capital Fin. & Commerce AG v. Sinopec Overseas Oil & Gas, Ltd. , 260 S.W.3d 67, 85 (Tex. App.-Houston [1st. Dist.] 2008, no pet.) (quoting Castleberry v. Branscum , 721 S.W.2d 270, 272 (Tex. 1986) ). To succeed under this alter ego theory, the plaintiff seeking to establish personal jurisdiction must show that the "parent controls the internal business operations and affairs of the subsidiary." PHC-Minden, L.P. v. Kimberly-Clark Corp. , 235 S.W.3d 163, 175 (Tex. 2007) (quoting BMC Software Belg., N.V. v. Marchand , 83 S.W.3d 789, 799 (Tex. 2002) ). The evidence must show that "the two entities cease to be separate so that the corporate fiction should be disregarded to prevent fraud or injustice." BMC Software , 83 S.W.3d at 799. It must demonstrate a " 'plus' factor, 'something beyond the subsidiary's mere presence within the bosom of the corporate family.' "
PHC-Minden , 235 S.W.3d at 176 (quoting Dickson Marine, Inc. v. Panalpina, Inc. , 179 F.3d 331, 338 (5th Cir. 1999) ).
"All of the relevant facts and circumstances surrounding the operations of the two corporations must be examined to determine whether two separate and distinct corporate entities exist." Foley v. Trinity Indus. Leasing Co. , 314 S.W.3d 593, 605 (Tex. App.-Dallas 2010, no pet.). The Texas Supreme Court has identified four relevant factors: "the amount of the subsidiary's stock owned by the parent corporation, the existence of separate headquarters, the observance of corporate formalities, and the degree of the parent's control over the general policy and administration of the subsidiary." PHC-Minden , 235 S.W.3d at 175 (quoting 4A WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1069.4 ). "The first three factors evaluate whether corporate structure is such that excessive control could occur, while the fourth measures actual control." TMX Fin. Holdings, Inc. v. Wellshire Fin. Servs., LLC , 515 S.W.3d 1, 8 (Tex. App.-Houston [1st Dist.] 2016, no pet.). The fourth factor "is most closely aligned with the ultimate question the factors address: actual control." Id.
Louisiana follows the general rule that corporations are distinct legal entities, "separate from the individuals who comprise them." Riggins v. Dixie Shoring Co., Inc. , 590 So.2d 1164, 1167 (La. 1991). This fiction may be ignored when the corporation proves to be "the 'alter ego' of the shareholder." Id. at 1168. Under this theory, a court may pierce the corporate veil in "situations where fraud or deceit has been practiced by the shareholder acting through the corporation," or "the corporation ceases to be distinguishable from its shareholders." Id.
Piercing the corporate veil permits a court to "impute a corporation's contacts to its shareholders" for jurisdictional purposes. Bona Fide Demolition , 690 F.Supp.2d at 443 (citing Patin , 294 F.3d at 653 ). In determining whether to pierce the veil, Louisiana courts examine the totality of circumstances, taking into consideration any commingling of funds, failure to follow corporate formalities, undercapitalization, failure to keep separate accounts and records, and failure to hold regular shareholder and director meetings. Riggins , 590 So.2d at 1168. The purpose of veil piercing is to prevent the corporate form from being used to "defeat public convenience, justify wrong, protect fraud, or defend crime." Smith v. Cotton's Fleet Serv., Inc. , 500 So.2d 759, 762 (La. 1987).
Louisiana law favors maintaining the corporate fiction. "Because of the beneficial role of the corporate concept, the limited liability attendant to corporate ownership should be disregarded only in exceptional circumstances." Riggins , 590 So.2d at 1168 ; see Korson v. Indep. Mall I, Ltd. , 593 So.2d 981, 984 (La. App. 5th Cir. 1992) ("Only exceptional circumstances warrant the radical remedy of piercing the corporate veil."). Absent allegations of fraud or deceit, a plaintiff has the "heavy burden of proving that the shareholders disregarded the corporate entity to such an extent that it ceased to become distinguishable from themselves." Riggins , 590 So.2d at 1168.
Louisiana courts may also impute contacts from a domestic to a foreign defendant under a single-business-enterprise theory, under which a corporation is shown to be the "alter ego, agent, tool or instrumentality of another corporation." Interstate Battery Sys. of Am., Inc. v. Kountz , 78 So.3d 200, 203 (La. App. 3d Cir. 2011) (quoting Dishon v. Ponthie , 918 So.2d 1132, 1135 (La. App. 3d Cir. 2005) ). The contacts for personal jurisdiction "can be imputed through a parent-subsidiary relationship." Stewart v. Ruston La. Hosp. Co., LLC , No. 14-00083, 2014 WL 1772945, at *3 (W.D. La. May 2, 2014) (quoting Dickson Marine , 179 F.3d at 338 ). The single-business-enterprise theory can be used to "fuse either affiliated or unaffiliated corporations, but not to impute corporate jurisdictional contacts to shareholders." Bona Fide Demolition , 690 F.Supp.2d at 444. A court may disregard "the legal fiction of a distinct corporate entity" when "a corporation is so organized and controlled as to make it merely an instrumentality or adjunct of another corporation" or, in other words, when "one corporation is wholly under the control of another." Green v. Champion Ins. Co. , 577 So.2d 249, 257 (La. App. 1st Cir. 1991).
A court considers the totality of the circumstances to determine whether one corporation controls another, focusing on 18 factors identified as helpful in many cases. Dishon , 918 So.2d at 1135-36 ; Green , 577 So.2d at 257-58. These factors include: stock ownership; common directors or officers; unified administrative control; directors and officers of one corporation who act independently of corporate interests; asset commingling; undercapitalization; one corporation that causes another to be incorporated; one corporation pays salaries or other expenses of another corporation; one corporation receives business only through an affiliated corporation; one corporation uses the property of another as its own; failure to follow corporate formalities; common employees; one corporation's employees render services on behalf of another corporation; common offices; centralized accounting; undocumented transfers of funds between corporations; unclear allocation of profits and losses between corporations; and excessive fragmentation of a single enterprise. Dishon , 918 So.2d at 1135-36 (quoting Green , 577 So.2d at 257-58 ). This list is neither exhaustive nor dispositive. Id. The record must show "an additional or a 'plus' factor, 'something beyond the subsidiary's mere presence within the bosom of the corporate family.' " Dickson Marine , 179 F.3d at 338 (quoting Donatelli v. Nat'l Hockey League , 893 F.2d 459, 465 (1st Cir. 1990) ).
The Fifth Circuit, after analyzing Louisiana law, found that "the factors to be considered to determine whether one entity is an alter ego of another or whether two entities are a 'single business enterprise' are similar." Tanfoglio Giuseppe , 615 F.3d at 587 (quoting Green , 577 So.2d at 257-58 ). The factors include:
common ownership, directors and officers, employees, and offices; unified control; inadequate capitalization; noncompliance with corporate formalities; centralized accounting; unclear allocation of profits and losses between corporations; one corporation paying the salaries, expenses, or losses of another corporation; and undocumented transfers of funds between entities.
Id.
Under both Texas and Louisiana law, contacts may be imputed from a corporation that controls the other such that the corporations have ceased to be distinct. Both Louisiana and Texas also permit a court to impute contacts when one corporation operates as a "tool," instrumentality, or business conduit of another corporation. Kountz , 78 So.3d at 203 ; Sinopec Overseas Oil & Gas , 260 S.W.3d at 85. Both Texas and Louisiana law require courts to examine all the circumstances in deciding whether to impute contacts. Each state's law requires courts to consider ownership, separateness, corporate formalities, and control. Neither state's law permits a plaintiff to impute contacts unless a " 'plus' factor" exists, "something beyond the subsidiary's mere presence within the bosom of the corporate family." Dickson Marine , 179 F.3d at 338 (quotation omitted); PHC-Minden , 235 S.W.3d at 176. These similarities make choosing between Texas and Louisiana law unnecessary because the outcome would be the same under either. Chinese-Manufactured Drywall , 753 F.3d at 529.
2. Contact Imputation: Analysis
The court begins with the presumption that American Global Maritime is a separate and independent corporation from the foreign companies. See TMX Fin. Holdings , 515 S.W.3d at 8 ; Riggins , 590 So.2d at 1167. The Underwriters have the burden of establishing that American Global Maritime's contacts with Texas or the United States can be imputed to the foreign companies. BMC Software , 83 S.W.3d at 798 ; Fausse Riviere, LLC v. Snyder , 211 So.3d 1188, 1193 (La. App. 1st Cir. 2017).
The Underwriters submitted American Global Maritime's Articles of Incorporation, showing that it was incorporated in Texas on April 21, 1997. (Docket Entry No. 84 at 47). Global Maritime Holdings is incorporated in Great Britain and owns all of American Global Maritime's shares and all the shares of Global Maritime Consultancy, another British corporation. (Docket Entry No. 65-3 at 2-3). Global Maritime Group is incorporated in Norway and owns all the shares of Global Maritime Holdings. (Id. at 4). These companies have some common directors and officers, (id. at 5-8), but neither stock ownership nor common directors and officers is enough to impute American Global Maritime's contacts to the foreign companies. See PHC-Minden , 235 S.W.3d at 175 ("[A] subsidiary corporation will not be regarded as the alter ego of its parent merely because of stock ownership, a duplication of some or all of the directors and officers, or an exercise of the control that stock ownership gives to stockholders." (quoting Gentry v. Credit Plan Corp. of Hous. , 528 S.W.2d 571, 573 (Tex. 1975) ) ); Riggins , 590 So.2d at 1168 ("The fact that one individual owns a majority of stock in the corporation does not in itself make that individual liable for corporate debts."). The Underwriters must point to a "plus factor, something beyond the subsidiary's mere presence within the bosom of the corporate family." Dickson Marine , 179 F.3d at 338 (quotation omitted).
The Underwriters and American Global Maritime submitted affidavits, business records, and other evidence. These documents reveal that American Global Maritime is an independent enterprise that cooperates with its parent, grandparent, and sister companies. American Global Maritime has a separate office in Houston; keeps its own corporate records, including financial statements, accounting documents, and meeting minutes; separately hires and pays its employees; separately owns property; leases office space; holds director and shareholder meetings; has directors who are tasked with pursuing its interests; is sufficiently capitalized; has its own insurance coverage; submits bids on contracts and negotiates their terms, as evidenced by its contract with Chevron; schedules and supervises contractor and employee work; and independently contracts with employees from affiliated companies. This record evidence shows that American Global Maritime respects corporate formalities and operates as an independent corporation, outside the direct control of the foreign companies.
The Underwriters make much of the companies' reference to themselves as "Global Maritime." The Underwriters submitted an Assumed Name Certificate filed in Texas, stating that American Global Maritime could do business as "Global Maritime"; documents relating to previous litigation in which American Global Maritime referred to itself as "d/b/a Global Maritime"; a certificate issued to "Global Maritime"; the companies' shared "Global Maritime" website; an online energy directory listing of "American Global Maritime Inc" as a branch of "Global Maritime AS"; and marketing materials showing that the companies both market as "Global Maritime." (Docket Entry No. 84 at 50, 257, 265, 306-57). According to the Underwriters, the companies' use of "Global Maritime" suggests that they disregard corporate formalities. But using "Global Maritime" as a shorthand company name or label "is no evidence" that the companies fail to "observe corporate formalities," because "Global Maritime" forms "part of their names." BMC Software , 83 S.W.3d at 800 ; see PHC-Minden , 235 S.W.3d at 175 ("Whether two related entities share a common name ...does not affect whether each has sufficient contacts with the forum for jurisdictional purposes."). In legally binding circumstances-like contracts, financial statements, insurance policies, invoices, certifications, board meeting minutes, and board resolutions-American Global Maritime used its formal and unique name: "American Global Maritime Inc." (Docket Entries No. 83 at 50, 102, 105, 222-23, 225-28, 238-56). Its informal references to itself as "Global Maritime" do not support an inference that corporate formalities were ignored.
The Underwriters contend that the foreign companies control American Global Maritime's day-to-day operations. They contend that the foreign companies are "consolidated under a global management team," (Docket Entry No. 32 at 5-7); that an employee of Global Maritime Group, "J. Linde," worked on the Big Foot Project, (Docket Entry No. 83 at 20); and that the foreign companies sent employees to Houston to help on other projects. (Id. at 16). The record undermines these allegations. Officers and directors of the foreign companies submitted affidavits declaring that the companies did "not control the day-to-day activities" of American Global Maritime. (Docket Entries No. 65-3-65-5; 100-1 at 1-5; 100-2; 100-3; 100-4). An affidavit of a former American Global Maritime vice-president states that the only contact between the management of American Global Maritime and of the foreign companies concerned soliciting business at conferences held in Houston and London once or twice a year. (Docket Entry No. 84 at 31-35). His affidavit also states that American Global Maritime billed for the services of the employees that the foreign companies sent to Houston, which suggests that American Global Maritime, not the foreign companies, controlled those employees' work. (Id. at 34). The record shows that American Global Maritime independently contracted with and paid for "J. Linde" to work on the Project. (Docket Entry No. 100-1 at 111-13). These circumstances support an inference of independence, not of control.
The Underwriters contend that the foreign companies and American Global Maritime share funds through loans and a cash-pool agreement. American Global Maritime offers and receives "borrowings from its parent company," which are "unsecured, do not accrue interest, and have no set repayment term." (Docket Entry No. 100-1 at 15). But American Global Maritime records the amounts due and payable in its separate financial statements. In 2013 and 2014, American Global Maritime "had $911,425 and $1,412,905, respectively, of accounts payable to companies related by common ownership." (Id. at 15). During those years, American Global Maritime "had $1,561,696 and $1,287,246, respectively, of accounts receivable due from companies related by common ownership." (Id. ). Similarly, in 2015 and 2014, American Global Maritime "had approximately $410,000 and $911,000, respectively, of accounts payable to companies related by common ownership" and accounts receivable of "209,000 and $1,562,00, respectively." (Id. at 32-33). In his affidavit, American Global Maritime's former vice-president stated that "funds were generally treated as a pool for the benefit of the worldwide company," but "the funds would normally be repaid." (Docket Entry No. 84 at 35). While one Global Marine company might make a loan to another, the borrowing entity tracked, reported, and "normally" repaid those loans. This does not suggest blurred corporate lines.
The Underwriters next point to a cash-pool agreement and argue that the foreign companies treated American Global Maritime's property as their own by using shares as collateral. Global Maritime Holdings entered into an agreement with DNB Bank ASA for access to a credit facility of 80,000,000 Norwegian Krone. (Docket Entry No. 84 at 167). The credit facility was secured with Global Maritime Holdings' assets, including its shares in American Global Maritime. As part of this agreement, American Global Maritime was required to pledge DNB Bank a security interest in its shares. (Id. at 91, 102). American Global Maritime would receive access to the credit facility through a credit-facility agreement stating that "[t]he companies in the cash pool agreement are jointly liable for the draw down on the facility." (Id. at 77, 91, 102). American Global Maritime's board met and approved the pledge agreement and the credit-facility agreement's terms. The board determined that the pledge agreement and credit-facility agreement were "advisable and in the [c]ompany's best interests, [would] benefit the [c]ompany, directly and indirectly, and [were] necessary or convenient to the conduct, promotion or attainment of the [c]ompany's business." (Docket Entry No. 100-1 at 57-58). With board approval, American Global Maritime agreed to the credit-facility agreement and in return received access to credit. The credit-facility agreement does not show that Global Maritime Holdings exercised control over American Global Maritime.
The Underwriters' allegations regarding consolidated financial statements, annual management meetings, common policies, and financial monitoring do not establish the control necessary to impute jurisdictional contacts from American Global Maritime to the foreign companies. PHC-Minden , 235 S.W.3d at 176 ("Appropriate parental involvement includes monitoring the subsidiary's performance, supervision of the subsidiary's finance and capital budget decisions, and articulation of general policies." (quoting 16 MOORE'S FEDERAL PRACTICE § 108.42(3)(b) ) ). Referring to subsidiaries in a financial report does not support an inference that a parent or related corporation is exercising abnormal control over a subsidiary or affiliate. See BMC Software , 83 S.W.3d at 799-800 ("[R]eferencing ... subsidiaries in [an] annual report is a common business practice, which the Internal Revenue Service, the SEC, and generally accepted accounting principles recommend.").
The Underwriters assert that American Global Maritime is undercapitalized, offering its insurance coverage as proof. The Underwriters allege that American Global Maritime received a fee "in excess of $2 million" but had only "one professional liability policy with a limit of liability of $1,000,000." (Docket Entry No. 83 at 19-20). This, the Underwriters claim, "is evidence of undercapitalization." (Id. at 20). American Global Maritime had professional services coverage of $1 million per incident and umbrella coverage for $5 million per incident. (Docket Entry No. 84 at 222). That gave American Global Maritime $6,000,000 in coverage because the umbrella coverage would apply after the professional services coverage was depleted. See N. Am. Capacity Ins. Co. v. Colony Specialty Ins. Co. , 273 F.Supp.3d 711, 715 (S.D. Tex. 2017) ("An umbrella policy is designed to cover situations where primary insurance policies are exhausted without covering the full loss."). American Global Maritime could pay a judgment of up to $6,000,000 for performing services worth approximately $2,000,000. It was sufficiently capitalized for the Project.
As to capitalization for operations, American Global Maritime's financial statements reveal that, while it operated at a loss in 2015 and 2014, it had sufficient capital to meet its expenses, including employee salaries and benefits, contract labor, leases on office space and equipment, and other business costs. (Docket Entry No. 100-1 at 28, 33-36). American Global Maritime had sufficient funds to operate. See Matter of Fabricators, Inc. , 926 F.2d 1458, 1469 (5th Cir. 1991) ("The concept of undercapitalization normally refers to the insufficiency of the capital contributions made to a corporation.").
The Underwriters have not pointed to or presented evidence showing a blurring of corporate lines between American Global Maritime and the foreign companies. The relationship between American Global Maritime and the foreign companies is that of affiliated but separate entities. The Underwriters have not shown a plus factor sufficient to carry their burden of proof. There is no basis to impute American Global Maritime's contacts to the foreign companies, under either Texas or Louisiana law.
3. Specific Jurisdiction
"Specific jurisdiction...depends on an 'affiliatio[n] between the forum and the underlying controversy,' principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation."
Pervasive Software Inc. v. Lexware GmbH & Co. KG , 688 F.3d 214, 221-22 (5th Cir. 2012) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) ). "A court may exercise specific jurisdiction when: (1) the nonresident defendant purposefully avails itself of the privileges of conducting activities in the forum state; and (2) the controversy arises out of or is related to the defendant's contacts with the forum." Choice Healthcare, Inc. v. Kaiser Found. Health Plan of Colo. , 615 F.3d 364, 369 (5th Cir. 2010) (citing Freudensprung v. Offshore Tech. Servs., Inc. , 379 F.3d 327, 343 (5th Cir. 2004) ). "The 'purposeful availment' element ensures that a defendant will not be haled into court in a jurisdiction solely as a result of random, fortuitous, or attenuated contacts or the unilateral activity of another person or third party." Id. (citing Burger King , 471 U.S. at 475, 105 S.Ct. 2174 ).
The Underwriters allege that the foreign companies "collaborated and provided technical advice and support for the Project, and employees from other Global Maritime offices worked on the Big Foot [P]roject, with some sent to work from the Houston office to provide services directly to Chevron for the [P]roject." (Docket Entry No. 32 at 7). Standing alone, these allegations are insufficient to support specific personal jurisdiction over the foreign companies. See Walden , 571 U.S. at 283-84, 134 S.Ct. 1115 ("The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant 'focuses on the relationship among the defendant, the forum, and the litigation.' " (quoting Keeton v. Hustler Magazine, Inc. , 465 U.S. 770, 775, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) ) ).
The Underwriters make two specific allegations: (1) American Global Maritime was listed as an approved marine warranty surveyor because the foreign companies marketed their services to London underwriters; and (2) the Global Maritime Group sent J. Linde, a Global Maritime Group employee, to Texas to work on the Project. The foreign companies' marketing efforts in London are not contacts with Texas. As to the second allegation, the record shows that American Global Maritime independently contracted with Linde. (Docket Entry No. 100-1 at 111-13). Because Linde separately contracted with American Global Maritime, his work in Texas is not a contact between the foreign companies and Texas.
The court cannot exercise specific personal jurisdiction over the foreign companies because the Underwriters have failed to demonstrate that they have sufficient contacts with Texas relating to the Project.
4. General Jurisdiction
The Underwriters assert that the foreign companies' "affiliations" with Texas or the United States "are so 'continuous and systematic' as to render them essentially at home" in Texas or the United States. Goodyear Dunlop Tires , 564 U.S. at 919, 131 S.Ct. 2846 (quoting Int'l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement , 326 U.S. 310, 317, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ). This "continuous and systematic contacts test is a difficult one to meet, requiring extensive contacts between a defendant and a forum." Johnston , 523 F.3d at 609-10 (quoting Submersible Sys., Inc. v. Perforadora Cent., S.A. , 249 F.3d 413, 419 (5th Cir. 2001) ). "[E]ven repeated contacts with forum residents by a foreign defendant may not constitute the requisite substantial, continuous and systematic contacts required for a finding of general jurisdiction."
Id. (quoting Revell v. Lidov , 317 F.3d 467, 471 (5th Cir. 2002) ).
General jurisdiction is examined by "evaluating contacts of the defendant with the forum over a reasonable number of years, up to the date the suit was filed." Access Telecom, Inc. v. MCI Telecomms. Corp. , 197 F.3d 694, 717 (5th Cir. 1999). "[V]ague and overgeneralized assertions that give no indication as to the extent, duration, or frequency of contacts are insufficient to support general jurisdiction." Johnston , 523 F.3d at 610.
i. The Texas Long-Arm Statute
In the third amended complaint, the Underwriters alleged that the foreign companies: "regularly advertise, solicit business, target customers, negotiate and execute contracts, and provide services in Texas, through American Global Maritime's Houston office." (Docket Entry No. 32 at 5-6). This assertion is insufficient for general jurisdiction because these points are unmoored to the extent, duration, or frequency of the foreign companies' contacts with Texas. Johnston , 523 F.3d at 610. These assertions also rely on American Global Maritime's contacts with Texas, although it is a separate company for personal jurisdiction purposes.
In response to the motion to dismiss, the Underwriters argued that: the foreign companies recruited a Texas citizen to incorporate American Global Maritime; the foreign companies' officers "regularly meet and market their services with [American Global Maritime] officers both for Texas-based projects, and to Texas companies that may have projects overseas"; the foreign companies "specifically marketed with [American Global Maritime] representatives to London underwriters responsible for insuring marine and energy work in Texas and offshore Texas to add Global Maritime to the approved list of [marine warranty surveyors]"; and the foreign companies sent employees to work on at least six projects in the Gulf of Mexico between 1997 and 2017. (Docket Entry No. 83 at 28-30).
The record does not support many of these factual allegations, and none by itself or in combination with the others is sufficient to show general personal jurisdiction over the foreign companies in Texas. The evidence offered that officers or employees of the foreign companies' made "regular" trips to Houston comes from the affidavit of American Global Maritime's former vice-president. (Docket Entry No. 84 at 31-35). His affidavit states that officers from the foreign companies traveled to Houston each year for the Offshore Technology Conference, and sometimes for a Houston Marine Insurance Seminar. (Id. at 34). At most, the affidavit shows that the foreign companies sent officers to Houston once or twice a year, not on a frequent basis, and does not show that the foreign companies' officers went to Houston for other reasons. The evidence of marketing efforts by the foreign companies to underwriters based and located in London does not show the foreign companies' contacts with Texas, given the lack of evidence that the foreign companies sought to do business in Texas.
In his affidavit, the former vice-president of American Global Maritime stated that the foreign companies sent employees to Texas to help American Global Maritime work on three projects between 1997 and 2004. (Id. ). But the affidavit supports the argument that those employees worked for American Global Maritime, not the foreign companies, and that American Global Maritime included their work "in the invoices to clients from the Houston office as though they were Houston employees." (Id. ). The work was for American Global Maritime, not the foreign companies;
it is at best a weak contact between the foreign companies and Texas.
The Underwriters assert that " 'Global Maritime' was the approved [marine warranty surveyor] on three Gulf of Mexico projects between 2011 and 2017," and that "[the foreign companies] are likely to have either procured this U.S. work or lent employees to the Houston office to complete the work, and would have received compensation from this Texas work." (Docket Entry No. 83 at 29-30). But the Underwriters neither point to nor submit supporting evidence showing that the foreign companies sent their own employees to Houston and paid for the work those employees did in Houston.
The Underwriters produced a press release showing that the U.S. Coast Guard certified Global Maritime Consultancy to "provide Subchapter M compliance services as a Third Party Organization." (Docket Entry No. 84 at 305). This press release, without more, does not show sustained contacts between the foreign companies and Texas. The press release states that "Global Maritime" provides services in the United States. (Id. ). It is unclear which Global Maritime corporation-American or foreign-provides those services, what the services are, or how frequently they were provided.
Lastly, the Underwriters cite a press release stating that "Global Maritime Consultancy & Engineering" completed a project carried out by the "Houston team." (Id. at 344). Again, it is unclear even which entity performed this work. The imprecise language means that these press releases provide little support for the argument that Global Maritime Consultancy contracted for or worked on Texas projects and, even if they did, they do not show contacts of a continuous and systematic nature.
The record shows that the foreign companies hired someone or some entity to incorporate American Global Maritime, sent officers to international conferences held once or twice a year, lent an unspecified number of employees to American Global Maritime under unknown conditions, had a U.S. certification, and may have contracted to provide services for one project. This evidence does not establish that the foreign companies' "affiliations" with Texas were "so continuous and systematic as to render them essentially at home" in Texas. Goodyear Dunlop , 564 U.S. at 919, 131 S.Ct. 2846 (quotation omitted). This Texas court cannot properly exercise general personal jurisdiction over the foreign companies based on this record.
ii. Federal Rule of Civil Procedure 4(k)(2)
When no single state of the United States has jurisdiction over a foreign defendant, Federal Rule of Civil Procedure 4(k)(2) permits a federal court sitting in any state to exercise personal jurisdiction over that defendant, if it is consistent with due process and if the defendant was properly served. The Rule provides:
For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:
(A) the defendant is not subject to jurisdiction in any state's courts of general jurisdiction; and
(B) exercising jurisdiction is consistent with the United States Constitution and laws.
FED. R. CIV. P. 4(k)(2). Under this language, a federal court in any state may exercise personal jurisdiction over "foreign defendants for claims arising under federal law when the defendant has sufficient contacts with the nation as a whole to justify the imposition of United States' law but without sufficient contacts to satisfy the due process concerns of any particular state." World Tanker Carriers Corp. v. M/V Ya Mawlaya , 99 F.3d 717, 720 (5th Cir. 1996) (emphasis in original). The court has to conduct the "now familiar minimum contacts analysis." Id. at 723. Because the foreign companies lack contacts relating to the Project, the Underwriters must show "continuous and systematic contacts with the United States as a whole." Adams v. Unione Mediterranea Di Sicurta , 364 F.3d 646, 651-52 (5th Cir. 2004).
This case arises under federal law. The Underwriters allege that the foreign companies have been served under the Hague Convention. They argue that the foreign companies have continuous and systematic contacts with the United States as a whole because they:
directly market and provide international [marine warranty surveyor] services relied upon by energy companies, vessel owners, insurers, banks, investors, shippers, brokers and seamen throughout the United States and across the worldwide maritime and energy community. They tout the global availability of their agents, engineers and [marine warranty surveyor services] for marine and energy work throughout the United States, for which Texas is a major hub. They regularly compete for and conduct marine and offshore work in Texas and Louisiana, and would expect to be haled into a U.S. court for disputes arising out of their work. It is that very substantial worldwide operations and widespread reliance that defendants rely upon for their economic success.
(Docket Entry No. 83 at 33). These assertions do not show general personal jurisdiction.
The Underwriters' only specific assertion is that Global Maritime Group worked on a wind farm located off the Rhode Island coast. (Id. at 31-32). As evidence, the Underwriters point to a press release from Global Maritime's website. The press release reads: "hear how Global Maritime is working with a leading operator to provide Marine Warranty services for an offshore wind farm." (Docket Entry No. 84 at 341). The press release does not state that Global Maritime Group itself provided services to or worked on the wind farm. For all it discloses, American Global Maritime might have provided the services or done the work.
The Underwriters have failed to produce or point to evidence supporting a prima facie showing that the foreign companies have contacts with the United States sufficient for this court to exercise jurisdiction under Rule 4(k)(2).
c. Jurisdictional Discovery
In deciding whether personal jurisdiction exists over a nonresident defendant, the court may rely on written submissions, hold an evidentiary hearing, or allow discovery on personal jurisdiction. See Moran v. Kingdom of Saudi Arabia , 27 F.3d 169, 173 (5th Cir. 1994). "When the defendant disputes the factual bases for jurisdiction, ... the court may receive interrogatories, depositions, or 'any combination of the recognized methods of discovery' to help it resolve the jurisdictional issue." Walk Haydel & Assocs., Inc. v. Coastal Power Prod. Co. , 517 F.3d 235, 241 (5th Cir. 2008). An evidentiary hearing is appropriate when the jurisdictional facts are separate from the facts on the merits. Id. Discovery is appropriate when it could reveal information relevant to determining whether the court has personal jurisdiction. "[D]iscovery on matters of personal jurisdiction ... need not be permitted unless the motion to dismiss raises issues of fact." Kelly v. Syria Shell Petro. Dev. B.V. , 213 F.3d 841, 855 (5th Cir. 2000) (quotation omitted). Discovery rulings on personal jurisdiction are reviewed for abuse of discretion and "will not be disturbed ordinarily unless there are unusual circumstances showing a clear abuse." Seiferth v. Helicopteros Atuneros, Inc. , 472 F.3d 266, 270 (5th Cir. 2006) (quoting Wyatt v. Kaplan , 686 F.2d 276, 283 (5th Cir. 1982) ).
The parties have submitted over 400 pages of affidavits, financial documents, marketing materials, contracts, board minutes, and other documents. The Underwriters nonetheless want discovery on the foreign companies' Texas contacts and corporate structure. They ask to depose:
• Egil Kvannli, the chief executive officer of Global Maritime Group;
• Neil Scott Walker, the regional manager of Global Maritime Consultancy;
• Satyajit Kar, the marine operations manager for American Global Maritime;
• Alberto Morandi, a former president of American Global Maritime;
• Thomas Smith, a former engineering manager of American Global Maritime.
(Docket Entry No. 83 at 34-35). Three of these individuals-Egil Kvannli, Neil Scott Walker, and Satyajit Kar-have already submitted affidavits. (Docket Entries No. 65-3-65-5). Each stated that the foreign companies neither exercise control over American Global Maritime nor provided services relating to the Project. (Id. ). Their depositions are unnecessary and unlikely to yield new information.
As to Alberto Morandi and Thomas Smith, the Underwriters state that they expect depositions of these individuals to show that the foreign companies did business in Texas and met with Texas-based customers to market "Texas and worldwide business." (Docket Entry No. 83 at 35). The Underwriters have already submitted an affidavit from Michael A. Jacobs, a former vice-president of American Global Maritime, who stated that officers from the foreign companies came to Texas once or twice a year to attend international conferences held in Houston. (Docket Entry No. 84 at 34). He said nothing about regular or frequent marketing in Houston. (Id. ). It is at best unclear what additional depositions would add. As to doing business in Texas, the depositions of Alberto Morandi and Thomas Smith would not likely yield relevant information because the parties agree that American Global Maritime does business in Texas. The affidavits from the foreign companies' directors and officers state that neither Global Maritime Holdings nor Global Maritime Group do business in Texas. The affidavits state that Global Maritime Consultancy does not have an office in the United States and provided no services or support on the Big Foot Project. The record lacks evidence that the depositions of Global Maritime Consultancy employees, who presumably live and work in Europe, would yield information, necessary to make the depositions consistent with the limits on discovery, including proportionality.
The court denies the Underwriters' request for depositions or other jurisdictional discovery as unnecessary and unjustified in light of the extensive record the parties have submitted.
IV. The Motions for Summary Judgment
"Summary judgment is appropriate only if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Vann v. City of Southaven, Miss. , 884 F.3d 307, 309 (5th Cir. 2018) (quotation omitted); see also FED. R. CIV. P. 56(a). "A genuine dispute of material fact exists when the 'evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " Burrell v. Prudential Ins. Co. of Am. , 820 F.3d 132, 136 (5th Cir. 2016) (quoting Savant v. APM Terminals , 776 F.3d 285, 288 (5th Cir. 2014) ). The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] ... which it believes demonstrate the absence of a genuine issue of material fact.' " Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
"Where the non-movant bears the burden of proof at trial, 'the movant may merely point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating ... that there is an issue of material fact warranting trial.' " Kim v. Hospira, Inc. , 709 F. App'x 287, 288 (5th Cir. 2018) (quoting Nola Spice Designs, LLC v. Haydel Enters., Inc. , 783 F.3d 527, 536 (5th Cir. 2015) ). While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant's case. Austin v. Kroger Tex., L.P. , 864 F.3d 326, 335 (5th Cir. 2017). A fact is material if "its resolution could affect the outcome of the action." Aly v. City of Lake Jackson , 605 F. App'x 260, 262 (5th Cir. 2015) (citing Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc. , 482 F.3d 408, 411 (5th Cir. 2007) ). "If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant's response." Pioneer Expl., LLC v. Steadfast Ins. Co. , 767 F.3d 503, 511 (5th Cir. 2014) (quoting Kee v. City of Rowlett, Tex. , 247 F.3d 206, 210 (5th Cir. 2001) ).
"When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary jud