                                                                               United States Court of Appeals
                                                                                        Fifth Circuit
                                                                                      F I L E D
                                                                                    September 16, 2003
                           UNITED STATES COURT OF APPEALS
                                                                                  Charles R. Fulbruge III
                                    FOR THE FIFTH CIRCUIT                                 Clerk
                                   _________________________

                                          No. 03-30269
                                     SUMMARY CALENDAR
                                   _________________________

FIRMEN THOMAS; ET AL

                      Plaintiffs
FIRMEN THOMAS

                      Plaintiff - Appellant
                                                  v.

JOHN KENNEDY; ET AL
               Defendants

MARINA ASSOCIATES, erroneously sued as Harrah’s Casino Atlantic City, doing business as
Harrah’s Casino Hotel Atlantic City by Harrah’s Atlantic City, Inc.

                      Defendant - Appellee

______________________________________________________________________________

                 On Appeal from the United States District Court for the
                             Eastern District of Louisiana
                                   (02-CV-3338-E)
______________________________________________________________________________

Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PER CURIAM:1

       In this appeal, we review the district court’s decision to grant Defendant-Appellee’s Rule

12(b)(6) Motion to Dismiss. For the following reasons, we affirm the district court’s decision.

       1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
                                                  I.

                       FACTUAL AND PROCEDURAL BACKGROUND

       Plaintiff-Appellant, Firmen Thomas (hereinafter “Thomas”), alleges that during the month

of September 1995, each of the seven casinos named as defendants reported to the United States

Internal Revenue Service (hereinafter “IRS”) that Plaintiffs had gambled at their casinos and

earned winnings. In September 1997, Plaintiffs were contacted by the IRS and assessed taxes,

interest, and penalties on the reported winnings in the amount of $200,742.00. Plaintiffs claim

that they never gambled at any of the casinos, and that the incorrect reporting of winnings to the

IRS caused them damages.

       On September 13, 2002, Plaintiffs filed suit against Defendants in Louisiana State Court

alleging negligence, intentional infliction of emotional distress, and negligent misrepresentation.

The matter was removed to federal court by one of the defendant casinos, Caesar’s World, Inc.

Defendant-Appellant, Marina Associates (hereinafter “Marina”), filed a motion to dismiss

asserting that the court lacks personal jurisdiction over it. The district court granted their motion

and this appeal followed.

                                                 II.

                                    STANDARD OF REVIEW

       Whether in personam jurisdiction can be exercised over a nonresident defendant is a

question of law subject to de novo review by this court. Jackson v. FIE Corp., 302 F.3d 515, 521

(5th Cir 2002).

                                                 III.

                                   PERSONAL JURISDICTION

        Because Louisiana’s Long-Arm Statute extends personal jurisdiction to the limits of due
process, this court need only determine whether subjecting Marina to suit in Louisiana would

offend the Due Process Clause of the Fourteenth Amendment. LSA-R.S. §13:3201; Fox v. Board

of Supervisors of Louisiana State, 576 So.2d 978, 983 (La. 1991). Personal jurisdiction may be

asserted over a nonresident defendant only if that defendant has certain “minimum contacts” with

the forum such that the maintenance of the suit does not offend “traditional notions of fair play

and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90

L.Ed. 95 (1945). There are two categories of minimum contacts with a state that may subject a

defendant to jurisdiction in that forum. A state has specific jurisdiction over a defendant when the

suit arises out of or is related to the defendant’s contacts with the forum state. Helicopteros

Nacionales de Columbis, S.A. v. Hall, 466 U.S. 408, 414 n.8, 104 S.Ct. 1868, 1872 n.8, 80

L.Ed.2d 404 (1984). A state has general jurisdiction over a defendant when the defendant has

continuous and systematic contacts with the forum state. Perkins v. Benquet Consolidated

Mining Co., 342 U.S. 437, 72 S.Ct. 413 96 L.Ed. 485 (1952). In the context of general

jurisdiction, “minimum contacts” means that the defendant has purposely availed himself of the

privilege of conducting activities within the forum state and should reasonably anticipate being

hailed into court in the forum state. Dickson Marine, Inc. v. Panalpina, Inc., 179 F.3d 331, 336

(5th Cir. 1999); Langley v. Oxford Chemicals, Inc., 634 So.2d 950 (La. App. 2 1994) citing

Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Personal jurisdiction

may be exercised over a defendant even when the suit does not arise out of the defendant’s

contacts with the forum state. Helicopteros, 466 U.S. at 415 n.9, 104 S.Ct. At 1872 n.9.

       When a defendant alleges that the court does not have personal jurisdiction, a plaintiff

need only make a prima facie showing of jurisdiction. Asarco, Inc. v. Glenara, Ltd., 912 F.2d

784, 785 (5th Cir. 1990). The allegations in the complaint are taken as true except as controverted
by the defendant’s affidavit. Id. All conflicts are resolved in favor of the plaintiffs. Id.

        Thomas concedes that his cause of action is unrelated to Marina’s contacts with

Louisiana. Thus, Marina is not subject to the court’s specific jurisdiction. Thus, we need only

address whether the court has general jurisdiction over Marina.

        Marina provided the affidavit of Luther Anderson, Vice-President of Legal Affairs and

Secretary of Harrah’s Atlantic City, Inc., the general partner of Marina Associates. Mr. Anderson

testified that: 1) Marina Associates is a New Jersey general partnership with its principal place of

business in Atlantic City, New Jersey; 2) Marina is the owner of Harrah’s Casino Hotel Atlantic

City, which is located in Atlantic City, New Jersey; 3) Marina has never been licensed to conduct

business in Louisiana; 4) Marina has never had any partners, employees or agents working or

residing in Louisiana; 5) Marina has never had an office or agent for service of process in

Louisiana; 6) Marina does not advertise or solicit business in Louisiana; and 7) Marina has no

telephone number, business listing, or mailing address in Louisiana.

        Thomas does not controvert Mr. Anderson’s testimony regarding Marina’s lack of

contacts in Louisiana. Instead, Thomas relies on Langley v. Oxford Chemicals, Inc., 634 So.2d

950 (La. App. 2 1994), to argue that Marina is subject to general jurisdiction in Louisiana due to

its reckless accounting practices that caused injury to a Louisiana citizen. Thomas also argues

that Marina purposely availed itself of the privilege of conducting business in Louisiana by falsely

reporting gambling winnings to the IRS. Thomas alleges that Marina “erroneously and falsely

claimed that the petitioners won some money at their casinos of which some tax liability was

due.”

        Assuming Thomas’s version of the facts is correct, Marina’s contact with Louisiana is still

coincidental. Thomas does not allege that Marina deliberately selected him, knowing that the
Thomas was Louisiana resident, in order to falsely report gambling winnings to the IRS. Marina

did not “purposely avail itself of the privilege of conducting business” in Louisiana. Without

continuous and systematic contacts with the State of Louisiana, Marina cannot be subject to

jurisdiction in the district court.

                                                 IV.

                                        REMAND ORDER

        This court does not have jurisdiction to review the district court’s order remanding the

case to state court. The general rule is that orders granting remand “are not reviewable on appeal

or otherwise.” 28 U.S.C. §1447(d). A remand for lack of subject matter jurisdiction under 28

U.S.C. §1447(c) is barred from appellate review by 28 U.S.C. §1447(d). Arnold v. Garlock, Inc.,

278 F.3d 426, 437 (5th Cir. 2001). While there are exceptions to the general rule against appellate

review, remands based on either 1) a timely-raised procedural error or 2) any jurisdictional error

may not be reviewed. Thermtron Products, Inc. v. Hermansdorfer, 96 S.Ct. 584 (1976). As the

district court’s remand order is based on lack of subject matter jurisdiction, the order is not

reviewable on appeal.

                                                 IV.

                                          CONCLUSION

        For the foregoing reasons the judgment of the district court granting Marina’s Rule

12(b)(6) Motion to Dismiss is affirmed.
