STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
12-268
THOMAS J. HENSGENS
VERSUS
PELICAN BEACH RESORT
**********
APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. C35111 HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and Shannon J. Gremillion, Judges.
AFFIRMED.
Nahum D. Laventhal 3421 N. Causeway Boulevard - #800 Metairie, LA 70002 Telephone: (504) 837-9107 COUNSEL FOR: Defendant/Appellee - Pelican Beach Resort
Kenneth O'Neil Privat P. O. Drawer 449 Crowley, LA 70527-0449 Telepone: (337) 783-7142 COUNSEL FOR: Plaintiff/Appellant - Thomas J. Hensgens THIBODEAUX, Chief Judge.
Plaintiff, Thomas Hensgens, and his wife, Trina, rented a hotel room
from Defendant Pelican Beach Resort (“Pelican”) in Destin, Florida. During their
trip, an employee of Pelican stole approximately $3,600.00 in property from the
Hensgens‟ rented room. Hensgens, a Louisiana domiciliary, filed suit in Jefferson
Davis Parish against Pelican, a Florida domiciliary, alleging that Pelican was
vicariously liable for the property loss since the property was stolen by one of
Pelican‟s former employees. Pelican filed an Exception of Lack of Jurisdiction. The
trial court granted Pelican‟s exception and dismissed Hensgens‟ lawsuit with
prejudice. Hensgens appeals. For the following reasons, we affirm the judgment of
the trial court.
I.
ISSUES
The sole issue presented in this appeal is whether Pelican‟s contacts with
the State of Louisiana were sufficient to confer personal jurisdiction over it in
Louisiana.
II.
FACTS AND PROCEDURAL HISTORY
Hensgens and his wife planned to vacation in Destin, Florida, in June
2010. Hensgens‟ wife booked a room at Pelican for the vacation. Pelican advertises
its vacation property on the Internet, and customers are able to book rooms through its
website. Mrs. Hensgens, however, booked their room by calling Pelican directly, and
she testified that she only used the website to look at potential rooms. Indeed, having
stayed at Pelican before, Mrs. Hensgens testified that she knew Pelican‟s phone
number “by heart.” During the Hensgens‟ stay at Pelican, a number of items were stolen
from their room. A housekeeper employed by Pelican was later convicted of the theft.
Mr. Hensgens filed suit to recover the value of the stolen items. In response, Pelican
filed its exception. At that time, Pelican affirmatively pled that it was solely
domiciled in Florida, had no office in Louisiana, and had no direct or meaningful
contacts with Louisiana.
Mrs. Hensgens testified that she had rented from Pelican several times in
the past, and, having memorized Pelican‟s phone number, she used it to call Pelican
and book the 2010 stay. She provided her credit card number over the phone, and she
did not use the Internet to book her vacation. Hensgens produced no flyers, mailings,
advertisements, or other evidence showing that Pelican sought out customers in
Louisiana or otherwise availed itself of Louisiana law.
The trial court granted Pelican‟s Exception and dismissed Hensgens‟
lawsuit with prejudice. In its written ruling, the trial court stated that the fact that no
flyers, mailings, advertisements, or other print media were distributed in Louisiana
and that no television or radio advertisements were used to promote Pelican in
Louisiana indicated that Pelican had not purposely availed itself of the laws of
Louisiana. Moreover, the trial court found it significant that Hensgens did not even
use the Internet to book his vacation. The trial court concluded that “the existence of
a business‟s internet website alone does not create the necessary minimum contacts to
impose personal jurisdiction.” Hensgens appeals.
III.
LAW AND DISCUSSION
Standard of Review
“An appellate court conducts a de novo review of the legal issue of
personal jurisdiction over a nonresident by a Louisiana court. However, the trial
2 court‟s factual findings underlying the decision are reviewed under the manifest-error
standard of review.” Peters v. Alpharetta Spa, L.L.C., 04-979, pp. 3-4 (La.App. 1 Cir.
5/6/05), 915 So.2d 908, 910 (citations omitted).
Discussion
Louisiana‟s long-arm statute, La.R.S. 13:3201, authorizes the exercise of
personal jurisdiction over non-residents by providing, in pertinent part:
A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident: (1) Transacting any business in this state. (2) Contracting to supply services or things in this state. (3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state. (4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state. (5) Having an interest in, using or possessing a real right on immovable property in this state. .... B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.
Personal Jurisdiction
In Davis v. Dempster, Inc., 00-662 (La.App. 3 Cir. 11/29/00), 790 So.2d
43, writ denied, 00-3519 (La. 2/9/01), 785 So.2d 830 (citations omitted), this court
discussed the types of personal jurisdiction:
[P]ersonal jurisdiction may be either general or specific. When the suit arises out of or is related to a defendant‟s contacts with the forum state, the exercise of personal jurisdiction is one of specific jurisdiction. However, if 3 the exercise of jurisdiction arises in a case not stemming from the defendant‟s contacts with the forum, the exercise of personal jurisdiction is one of general jurisdiction. When this latter category is in question, a defendant may be subject to the forum state‟s exercise of personal jurisdiction if contacts with the state are continuous and systematic. In de Reyes [v. Marine Management and Consulting, Ltd.], 586 So.2d 103 [(La.1991)], the Louisiana Supreme Court explained that whether proceeding under a theory of general jurisdiction or one involving specific jurisdiction, the analysis is the same. Under either theory, a determination as to whether due process standards have been met requires a two-part analysis of 1) minimum contacts with the forum state and 2) consideration of whether maintenance of the suit is consistent with notions of fair play and substantial justice.
Burden of Proof
The burden of proving minimum contacts with the forum state, for long-
arm statute purposes, is on the party claiming jurisdiction to be proper. Hunt v. Schult
Homes Corp., 94-1592 (La.App. 3 Cir. 5/3/95), 657 So.2d 124. If Hensgens is able to
establish that Pelican has had sufficient minimal contacts with Louisiana, then a
presumption arises that assertion of personal jurisdiction by the state court is
reasonable. The burden then shifts to Pelican to prove that the State of Louisiana‟s
assertion of personal jurisdiction would be unreasonable in light of traditional notions
of fair play and substantial justice.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
12-268
THOMAS J. HENSGENS
VERSUS
PELICAN BEACH RESORT
**********
APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. C35111 HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and Shannon J. Gremillion, Judges.
AFFIRMED.
Nahum D. Laventhal 3421 N. Causeway Boulevard - #800 Metairie, LA 70002 Telephone: (504) 837-9107 COUNSEL FOR: Defendant/Appellee - Pelican Beach Resort
Kenneth O'Neil Privat P. O. Drawer 449 Crowley, LA 70527-0449 Telepone: (337) 783-7142 COUNSEL FOR: Plaintiff/Appellant - Thomas J. Hensgens THIBODEAUX, Chief Judge.
Plaintiff, Thomas Hensgens, and his wife, Trina, rented a hotel room
from Defendant Pelican Beach Resort (“Pelican”) in Destin, Florida. During their
trip, an employee of Pelican stole approximately $3,600.00 in property from the
Hensgens‟ rented room. Hensgens, a Louisiana domiciliary, filed suit in Jefferson
Davis Parish against Pelican, a Florida domiciliary, alleging that Pelican was
vicariously liable for the property loss since the property was stolen by one of
Pelican‟s former employees. Pelican filed an Exception of Lack of Jurisdiction. The
trial court granted Pelican‟s exception and dismissed Hensgens‟ lawsuit with
prejudice. Hensgens appeals. For the following reasons, we affirm the judgment of
the trial court.
I.
ISSUES
The sole issue presented in this appeal is whether Pelican‟s contacts with
the State of Louisiana were sufficient to confer personal jurisdiction over it in
Louisiana.
II.
FACTS AND PROCEDURAL HISTORY
Hensgens and his wife planned to vacation in Destin, Florida, in June
2010. Hensgens‟ wife booked a room at Pelican for the vacation. Pelican advertises
its vacation property on the Internet, and customers are able to book rooms through its
website. Mrs. Hensgens, however, booked their room by calling Pelican directly, and
she testified that she only used the website to look at potential rooms. Indeed, having
stayed at Pelican before, Mrs. Hensgens testified that she knew Pelican‟s phone
number “by heart.” During the Hensgens‟ stay at Pelican, a number of items were stolen
from their room. A housekeeper employed by Pelican was later convicted of the theft.
Mr. Hensgens filed suit to recover the value of the stolen items. In response, Pelican
filed its exception. At that time, Pelican affirmatively pled that it was solely
domiciled in Florida, had no office in Louisiana, and had no direct or meaningful
contacts with Louisiana.
Mrs. Hensgens testified that she had rented from Pelican several times in
the past, and, having memorized Pelican‟s phone number, she used it to call Pelican
and book the 2010 stay. She provided her credit card number over the phone, and she
did not use the Internet to book her vacation. Hensgens produced no flyers, mailings,
advertisements, or other evidence showing that Pelican sought out customers in
Louisiana or otherwise availed itself of Louisiana law.
The trial court granted Pelican‟s Exception and dismissed Hensgens‟
lawsuit with prejudice. In its written ruling, the trial court stated that the fact that no
flyers, mailings, advertisements, or other print media were distributed in Louisiana
and that no television or radio advertisements were used to promote Pelican in
Louisiana indicated that Pelican had not purposely availed itself of the laws of
Louisiana. Moreover, the trial court found it significant that Hensgens did not even
use the Internet to book his vacation. The trial court concluded that “the existence of
a business‟s internet website alone does not create the necessary minimum contacts to
impose personal jurisdiction.” Hensgens appeals.
III.
LAW AND DISCUSSION
Standard of Review
“An appellate court conducts a de novo review of the legal issue of
personal jurisdiction over a nonresident by a Louisiana court. However, the trial
2 court‟s factual findings underlying the decision are reviewed under the manifest-error
standard of review.” Peters v. Alpharetta Spa, L.L.C., 04-979, pp. 3-4 (La.App. 1 Cir.
5/6/05), 915 So.2d 908, 910 (citations omitted).
Discussion
Louisiana‟s long-arm statute, La.R.S. 13:3201, authorizes the exercise of
personal jurisdiction over non-residents by providing, in pertinent part:
A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident: (1) Transacting any business in this state. (2) Contracting to supply services or things in this state. (3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state. (4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state. (5) Having an interest in, using or possessing a real right on immovable property in this state. .... B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.
Personal Jurisdiction
In Davis v. Dempster, Inc., 00-662 (La.App. 3 Cir. 11/29/00), 790 So.2d
43, writ denied, 00-3519 (La. 2/9/01), 785 So.2d 830 (citations omitted), this court
discussed the types of personal jurisdiction:
[P]ersonal jurisdiction may be either general or specific. When the suit arises out of or is related to a defendant‟s contacts with the forum state, the exercise of personal jurisdiction is one of specific jurisdiction. However, if 3 the exercise of jurisdiction arises in a case not stemming from the defendant‟s contacts with the forum, the exercise of personal jurisdiction is one of general jurisdiction. When this latter category is in question, a defendant may be subject to the forum state‟s exercise of personal jurisdiction if contacts with the state are continuous and systematic. In de Reyes [v. Marine Management and Consulting, Ltd.], 586 So.2d 103 [(La.1991)], the Louisiana Supreme Court explained that whether proceeding under a theory of general jurisdiction or one involving specific jurisdiction, the analysis is the same. Under either theory, a determination as to whether due process standards have been met requires a two-part analysis of 1) minimum contacts with the forum state and 2) consideration of whether maintenance of the suit is consistent with notions of fair play and substantial justice.
Burden of Proof
The burden of proving minimum contacts with the forum state, for long-
arm statute purposes, is on the party claiming jurisdiction to be proper. Hunt v. Schult
Homes Corp., 94-1592 (La.App. 3 Cir. 5/3/95), 657 So.2d 124. If Hensgens is able to
establish that Pelican has had sufficient minimal contacts with Louisiana, then a
presumption arises that assertion of personal jurisdiction by the state court is
reasonable. The burden then shifts to Pelican to prove that the State of Louisiana‟s
assertion of personal jurisdiction would be unreasonable in light of traditional notions
of fair play and substantial justice. See de Reyes, 586 So.2d 103.
Minimum Contacts
To determine whether minimum contacts exist, a court must engage in “a
factual examination of the „relationship among the forum, the defendant, and the
litigation.‟” A&L Energy, Inc. v. Pegasus Group, 00-3255, p. 6 (La. 6/29/01), 791
So.2d 1266, 1271-72, cert. denied, 534 U.S. 1022, 122 S.Ct. 550 (2001) (quoting
Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2580 (1977)). Here, the record
reveals that Pelican is a business domiciled in Florida. It has no office in Louisiana,
4 and it does not target its advertising to Louisiana residents. Moreover, the act giving
rise to this litigation—the theft— occurred in Florida.
In asserting that Louisiana may exercise personal jurisdiction over
Pelican, Hensgens relies solely on the fact that Pelican has an Internet website that is
accessible to Louisiana residents. Hensgens points out that Pelican‟s website allows
for online booking and provides a telephone number and asserts that this “invitation”
provides the requisite minimum contacts with Louisiana.
In Williams v. Frank Parra Auto Plex, Inc., 05-737 (La.App. 3 Cir.
3/22/06), 929 So.2d 755, this court considered whether Internet websites provided
sufficient contacts with Louisiana to support personal jurisdiction under the long-arm
statute. In finding that insufficient contacts existed, the Williams court recognized the
“sliding scale” analysis used by the courts in Zippo Manufacturing Company v. Zippo
Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997) and Mink v. AAAA Development
LLC, 190 F.3d 333 (5th Cir. 1999). In Zippo, the court noted that “the likelihood that
personal jurisdiction can be constitutionally exercised [based on Internet use] is
directly proportionate to the nature and quality of commercial activity that an entity
conducts over the Internet.” Zippo, 952 F. Supp. at 1124. In Mink, the court
concluded that the presence of e-mail access, a printable order form, and a toll-free
number on a website, without more, was insufficient to establish personal jurisdiction.
Mink, 190 F.3d 330.
Here, Hensgens has shown only that Pelican operates a website
accessible to Louisiana residents. While customers have the option of booking their
reservations online, Hensgens‟ wife testified that she opted to make their reservation
by calling Pelican‟s toll-free number, which she had memorized from previous
bookings. Hensgens only used the Internet site to view pictures of the property.
When this limited contact via the Internet is considered with the act allegedly giving
rise to liability, i.e., the theft of property in Florida, we conclude that Hensgens has
5 not met his initial burden of showing sufficient minimum contacts with the State of
Louisiana that would support its exercise of personal jurisdiction over Pelican.
Hensgens has failed to show how Pelican “purposely availed” itself of the privilege of
conducting activities in this state.
IV.
CONCLUSION
For the reasons articulated above, we affirm the judgment of the trial
court. Costs of this appeal are assessed against Appellant, Thomas J. Hensgens.