Dorsey v. J. Ray McDermott, Inc.

750 So. 2d 996, 99 La.App. 4 Cir. 0840, 1999 La. App. LEXIS 1597, 1999 WL 342356
CourtLouisiana Court of Appeal
DecidedMay 19, 1999
DocketNo. 99-C-0840
StatusPublished
Cited by1 cases

This text of 750 So. 2d 996 (Dorsey v. J. Ray McDermott, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dorsey v. J. Ray McDermott, Inc., 750 So. 2d 996, 99 La.App. 4 Cir. 0840, 1999 La. App. LEXIS 1597, 1999 WL 342356 (La. Ct. App. 1999).

Opinion

hPLOTKIN, Judge.

This writ presents a res nova issue. We must decide how to determine a foreign corporation’s primary place of business under La. C.C.P. art. 42(4). For the following reasons, we reverse the trial court judgment and hold that J. Ray McDer-mott, Inc.’s primary place of business is in Assumption Parish.

Plaintiff, Kentrell Dorsey was injured on a lay barge on August 24, 1997. At the time, he was employed by J. Ray McDer-mott, Inc. Plaintiff filed suit in the Civil District Court for the Parish of Orleans against J. Ray McDermott, Inc. alleging damages under the Jones Act and the general maritime law.

The trial court originally granted J. Ray McDermott, Inc.’s declinatory exception of improper venue, finding that venue was proper in Assumption Parish. However, after further discovery, plaintiff sought rehearing and the trial court reversed itself and found that Orleans Parish was the proper venue for this action. Defendant now seeks review of that ruling.

The only issue presented by this writ is whether the trial court erred when it found that, under La. C.C. art. 42(4), the primary place of business of J. Ray McDermott, Inc. is Orleans Parish.

La. C.C.P. art. 42(4) reads:

LA foreign corporation licensed to do business in this state shall be brought in the parish where its primary place of business in the state is located or in the parish designated as its principal business establishment in its application to do business in the state.

J. Ray McDermott, Inc. is a foreign corporation licensed to do business in Louisiana; its designated principal business establishment is in Amelia, Louisiana.

As previously noted, this issue is res nova; no other state or federal court in Louisiana has clearly defined what constitutes a foreign corporation’s primary place of business. This Circuit, in Hyatt v. Petrolite Corp., 95-0767 (La.App. 4 Cir. 1/19/96), 668 So.2d 432, 434 discussed the legislative intent behind the 1990 amendments to La. C.C.P. art. 42(4). That court stated:

However, the case law suggests that “primary place of business” and “principal business establishment” have different meanings and are not mutually exclusive.

In light of the legislative history, the Hyatt court was clearly correct. See also, Keener v. General Motors Corp., 993 F.2d 70 (5th Cir.1993). The purpose of the amendment was to provide, “that venue as to a foreign corporation is proper either where its primary place of business in the state is located or in the parish designated as its principal place of business in its application to do business in the state.” Digest, H.B. No. 507, Regular Session, 1990. Moreover, the phrase, “where its primary place of business in the state is located,” indicates that this court must carefully determine, where the corporation [998]*998primarily conducts its business in Louisiana in fact; we must determine where the actual corporate purpose is fulfilled.

An examination of federal law is helpful. For a corporation to be a party in a federal court under diversity jurisdiction, it is necessary to establish the citizenship [3of the corporation to determine if the federal court has subject matter jurisdiction. The specific language is found in 28 U.S.C.A. § 1332(c)(1):

a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.

Although the federal statute uses the word “principal”, the definition of “primary” is virtually identical. Primary is defined as, “first in importance; chief; principal; main.” Principal is defined as, “first in rank, authority, importance, degree, etc.” WEBSTER’S NEW WORLD COLLEGE DICTIONARY, 1069, 1070 (3d ed.1996). Therefore, while determining the principal place of business under federal law is necessary to determine diversity jurisdiction, the same legal reasoning for determining federal diversity shall be used for detennining Louisiana venue for foreign corporations.

The federal jurisprudence has developed two separate, but overlapping tests to determine which state is a corporation’s principal place of business: the “nerve center” test and the “place of activities” test. Many courts have now started to combine these tests and have created the “total activities” test.

The “nerve center” test was coined in Scot Typewriter Co. v. Underwood Corp., 170 F.Supp. 862 (S.D.N.Y.1959). The often-quoted legal precept that created the “nerve center” test is as follows:

Where a corporation is engaged in far-flung and varied activities which are carried on in different states, its principal place of business is the nerve center from which it radiates out to its constituent parts and from which its officers direct, control and coordinate all activities without regard to locale, in the furtherance of the corporate objective. The test applied by our Court of Appeals, is that place where the corporation has an “office from which its business was directed and controlled” - the place where “all of its business was under the supreme direction and control of its officers.”

14Id. at 865. Thus, the “nerve center” analysis originally found corporate citizenship to be in the state where business decisions were made. However, its application has been narrowed in recent years and it is now applied in cases that involve very large corporations with operations that span several states. “The “nerve center” test should be used only when no state contains a substantial predominance of the corporation’s business activities.” Danjaq, S.A. v. Pathe Communications Corp., 979 F.2d 772, 776 (9th Cir.1992).

The “place of activity” test was developed in Kelly v. U.S. Steel Corp., 284 F.2d 850 (3rd Cir.1960). The Third Circuit was faced with a situation where U.S. Steel had all of its executive offices in New York, but its operations were in several different states, Pennsylvania having the most production capabilities and employees. The court rejected the “nerve center” analysis and stated,

All this points to us the conclusion that business by way of activities is centered in Pennsylvania and we think it is the activities rather than the occasional meeting of policy-making Directors which indicate the principal place of business.

Id. at 854.

Finally, the Fifth Circuit adopted the “total activity” test in Anniston Soil Pipe Co. v. Central Foundry Co., 329 F.2d 313 (5th Cir.1964), but the court did not enunciate any rules. It merely stated in a per curiam that it adopted the reasons of the lower court. It was not until 1987, in J.A. Olson Co. v. City of Winona, Miss., 818 F.2d 401 (5th Cir.1987), that the Fifth Circuit elucidated the “total activity” test clearly and wrote extensively on how to [999]*999make the analysis. It summarized the existing rules as follows:

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Related

Scarbrough v. J. Ray McDermott
833 So. 2d 436 (Louisiana Court of Appeal, 2002)

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750 So. 2d 996, 99 La.App. 4 Cir. 0840, 1999 La. App. LEXIS 1597, 1999 WL 342356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dorsey-v-j-ray-mcdermott-inc-lactapp-1999.