     Case: 17-31003      Document: 00514572140         Page: 1       Date Filed: 07/26/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                    No. 17-31003                        FILED
                                  Summary Calendar                  July 26, 2018
                                                                   Lyle W. Cayce
                                                                        Clerk
EVERETT BLAKES,

              Plaintiff - Appellant

v.

DYNCORP INTERNATIONAL, L.L.C.,

              Defendant - Appellee



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                               USDC No. 3:17-CV-1


Before CLEMENT, COSTA, and WILLETT, Circuit Judges.
PER CURIAM:*
       Before the court is the district court’s grant of DynCorp, L.L.C.’s
(“DynCorp”) motion to dismiss for lack of personal jurisdiction. For the
following reasons, we AFFIRM.
                                             I.
       DynCorp is a Delaware limited liability company, headquartered in
Virginia, with no physical presence in Louisiana. It neither leases nor owns


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-31003
property in Louisiana and none of its officers or directors reside, or are
domiciled, in the state. DynCorp employed Everett Blakes, a Louisiana
resident, as an Escort Monitoring Technician at Bagram Airfield in
Afghanistan, under a Foreign Service Employment Agreement (“FSA”).
      DynCorp negotiated the FSA with Blakes through a series of email
communications and phone calls. DynCorp also required him to submit an
application through its website. Blakes took part in the application and
negotiation process from his Louisiana home, where he also signed a
conditional offer of employment. Additionally, Blakes completed several forms
and sent them to DynCorp from his home. However, Blakes signed the FSA in
Florida, where he travelled to complete training for the job.
      The FSA contained choice of law and choice of forum provisions, dictating
that any disputes arising from the contract would be governed by Afghan law
and would be resolved in an Afghan forum. Further, the FSA contemplated
performance solely in Afghanistan, where, the parties agree, the FSA was, in
fact, performed. DynCorp deposited Blakes’s wages into his Louisiana bank
account, withholding the requisite Louisiana state income tax.
      Blakes brought this action against DynCorp for breach of contract on
behalf of himself and a putative class, in the Middle District of Louisiana. He
alleged that DynCorp failed to pay wages and other benefits owed pursuant to
the Afghan Labor Law, the Louisiana Wage Payment Statute, and the terms
of the FSA.
      The district court determined that DynCorp’s contacts with Louisiana
were insufficient to support the exercise of specific personal jurisdiction.
Additionally, the district court found that Blakes’s cause of action did not arise
from DynCorp’s alleged contacts with Louisiana. Rather, the court determined
that it arose from DynCorp’s alleged failure to perform the contract in


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                                      No. 17-31003
Afghanistan. Accordingly, the district court declined to exercise personal
jurisdiction over DynCorp and granted its motion to dismiss. Blakes timely
appealed.
                                             II.
       A district court’s dismissal of a complaint for lack of personal jurisdiction
is subject to de novo review. Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429,
431 (5th Cir. 2014).
                                            III.
       The district court did not err in dismissing Blakes’s complaint for lack of
personal jurisdiction. Although Blakes was only required to make a prima facie
showing to establish the district court’s personal jurisdiction over DynCorp, he
failed to meet his burden. See Walk Haydel & Assocs., Inc. v. Coastal Power
Prod. Co., 517 F.3d 235, 241 (5th Cir. 2008).
       In order to determine whether a district court may exercise specific
personal jurisdiction over a party in a manner consistent with due process, this
circuit employs a three-pronged test:
       (1) whether the defendant has minimum contacts with the forum
       state, i.e., whether it purposely directed its activities toward the
       forum state or purposefully availed itself of the privileges of
       conducting activities there; (2) whether the plaintiff’s cause of
       action arises out of or results from the defendant’s forum-related
       contacts; and (3) whether the exercise of personal jurisdiction is
       fair and reasonable. 1

Monkton, 768 F.3d at 433 (quoting Seiferth v. Helicopteros Atuneros, Inc., 472
F.3d 266, 271 (5th Cir. 2006)).



       1If a plaintiff establishes the first two prongs of the test, the burden shifts to the
defendant “to show that exercising jurisdiction would be unfair or unreasonable.” Monkton,
768 F.3d at 433. Because Blakes fails on the first two prongs, we need not reach the third.


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                                       No. 17-31003
       We have consistently held that “merely contracting with a resident of [a]
forum state” does not create minimum contacts sufficient to establish personal
jurisdiction over a nonresident defendant. Holt Oil & Gas Corp. v. Harvey, 801
F.2d 773, 778 (5th Cir. 1986). This is particularly true when an out-of-state
defendant has no physical presence in the forum, conducts no business there,
and the contract at issue “was not signed in the state and did not call for
performance in the state.” Monkton, 768 F.3d at 433. Furthermore, neither
communications between the parties leading up to the execution of a contract
nor payments sent to the forum state suffice to justify the exercise of personal
jurisdiction. See Fruedensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327,
344-45 (5th Cir. 2004). 2 Finally, foreign choice of law provisions and foreign
performance “severely diminish[]” “[t]he significance of . . . alleged minimum
contacts.” Id. at 345.
       The facts at issue here fall squarely within our circuit’s personal
jurisdiction jurisprudence. DynCorp had no physical presence in Louisiana.
Prior to the execution of the FSA, it merely exchanged information with Blakes
electronically and by telephone while he was at his Louisiana home. Moreover,
the contract between DynCorp and Blakes was signed in Florida, contained a
foreign choice of law clause, and was performed in Afghanistan. DynCorp’s only
contact with Louisiana subsequent to executing the FSA was depositing




       2  Blakes’s attempt to distinguish Freudensprung is misguided. Although Blakes is
correct to note that the plaintiff in Freudensprung was not a party to the contract at issue,
we found that fact significant only in relation to the question of whether the litigation arose
out of the defendant’s alleged minimum contacts with the forum state. Fruedensprung, 379
F.3d at 344. We went on to address the question of the defendant’s minimum contacts
themselves, finding them insufficient to support the district court’s exercise of personal
jurisdiction. Id. at 344-45. The relevance of Fruedensprung for an analysis of DynCorp’s
alleged Louisiana contacts, therefore, stands.


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                                       No. 17-31003
Blakes’s wages into his Louisiana bank account. 3 Accordingly, the district
court correctly determined that DynCorp did not have sufficient minimum
contacts with Louisiana to support the court’s exercise of personal
jurisdiction. 4
       The district court also determined that Blakes’s cause of action did not
arise out of DynCorp’s alleged contacts with Louisiana, but instead out of its
allegedly deficient performance of the FSA in Afghanistan. Because we agree
with that finding and because Blakes has failed to establish that DynCorp had
sufficient minimum contacts with Louisiana, we need not separately address
the question of the source of Blakes’s cause of action. See Monkton, 768 F.3d at
433-34.
       AFFIRMED.




       3  Blakes also contends, but never supports with authority, that DynCorp purposefully
availed itself of the privileges of conducting business in Louisiana by withholding Louisiana
state income taxes from his wages and making tax withholding payments to the Louisiana
Department of Revenue. We disagree. The Eastern District of Louisiana’s decision in
Sciortino v. CMG Capital Management Group, Inc. is instructive. The district court declined
to exercise personal jurisdiction over a nonresident defendant where the plaintiff, arguing in
favor of jurisdiction, relied in part on defendant-company’s deposits of wages into a Louisiana
bank account and its withholding of Louisiana income taxes. Sciortino v. CMG Capital
Management Group, Inc., No. 16-11012, 2016 WL 4799099, at *6-7 (E.D. La. Sept. 14, 2016).
By withholding state taxes and paying them to the Louisiana Department of Revenue,
DynCorp did not seek to avail itself of the benefits of Louisiana’s laws. It simply did what the
law required it to do in conjunction with an activity—sending payments to another state—
that this court has previously found insufficient to support the exercise of specific personal
jurisdiction. See Freudensprung, 379 F.3d at 345. DynCorp’s payments and tax withholdings
arose out of the “mere fortuity” that Blakes lived in Louisiana, from which fortuity
“purposeful availment . . . cannot be inferred.” Patterson v. Dietze, Inc., 764 F.2d 1145, 1147
(5th Cir. 1985).
        4 Blakes’s reliance on out-of-circuit case law—Pike v. Clinton Fishpacking, Inc., 143

F.Supp.2d 163 (D.Mass. 2001) and O’ Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312
(3rd Cir. 2007)—is unavailing, in light of the available body of controlling Fifth Circuit
precedent.



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