     Case: 19-30583      Document: 00515303299         Page: 1    Date Filed: 02/10/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                    No. 19-30583                       February 10, 2020
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk

KRISTOPHER EMBRY,

                                                 Plaintiff – Appellant
v.

HIBBARD INSHORE, L.L.C.,

                                                 Defendant – Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:19-CV-1474


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       A former employee challenges the district court’s dismissal of his claims
against his former employer. We AFFIRM.
       In 2014, Kristopher Embry was hired by Michigan-based company
Hibbard Inshore, L.L.C., while Embry was living in Pennsylvania. Embry
worked remotely as a “Client Relationship Manager,” and traveled to Hibbard’s
Michigan offices approximately once per year. His duties included attending


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-30583
sales conferences, making sales calls, crafting proposals and estimates for
potential clients, and maintaining relationships with existing clients. Embry
stated in a declaration that at the time he was hired, he informed Hibbard of
his hopes to move to New Orleans, Louisiana. Embry moved to New Orleans
two years later, in 2016, because he wanted to live in a city with more
accessible flights to Panama, where his partner was living. Embry further
stated that Hibbard did not object to his moving to New Orleans, but there is
no evidence that Hibbard had any contacts with Louisiana other than Embry’s
relocation to and presence in New Orleans. Hibbard discharged Embry in June
2018.
        Because of a dispute over alleged unpaid wages, Embry filed suit against
Hibbard in Orleans Parish Civil District Court in December 2018. Hibbard
removed to the Federal District Court for the Eastern District of Louisiana on
the basis of diversity jurisdiction and moved to dismiss for lack of personal
jurisdiction. The court granted the motion, and this appeal followed.


                                  DISCUSSION
        A district court’s dismissal for lack of personal jurisdiction is reviewed
de novo. Halliburton Energy Servs., Inc. v. Ironshore Specialty Ins. Co., 921
F.3d 522, 539 (5th Cir. 2019). The core of Embry’s argument is that because
he worked for Hibbard while living in Louisiana, the district court had personal
jurisdiction over Hibbard in Louisiana. There is no argument relating to
general personal jurisdiction; Hibbard, organized and headquartered in
Michigan, was clearly not “at home” in Louisiana. See Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). The only dispute involves
specific personal jurisdiction.
        As recognized by the district court, there are three steps to determine
whether there is specific personal jurisdiction: (1) the defendant must have
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                                No. 19-30583
minimum contacts with the forum state, i.e., it must have purposefully directed
its activities toward the forum state or availed itself of the privileges of
conducting activities there; (2) the cause of action must arise from the
defendant’s forum-related contacts; and (3) if a plaintiff makes the first two
showings, a defendant may still defeat jurisdiction by showing the exercise of
jurisdiction would be unfair or unreasonable. See Carmona v. Leo Ship Mgmt.,
Inc., 924 F.3d 190, 193 (5th Cir. 2019). A plaintiff’s contacts with the forum
state do not satisfy the minimum contacts inquiry because the inquiry focuses
on the defendant. See Walden v. Fiore, 571 U.S. 277, 284 (2014).
      Embry’s arguments focus on his own connections with Louisiana.
Among the connections were his residence in that state, his attempts to
communicate with Louisiana businesses in his capacity as a Hibbard employee,
his paycheck stub had a Louisiana address on it, and he worked from
Louisiana. The district court considered that at the time Embry was hired, he
“stated that he had plans to live in Louisiana part time at some point in the
future.” We do not see that Hibbard’s awareness of where Embry moved two
years after being hired and where he eventually lived while working remotely
supports that Hibbard purposefully directed activities toward Louisiana.
      Without citing Fifth Circuit precedent, Embry urges the court to adopt a
test for specific personal jurisdiction in remote-employment cases that focuses
on (1) whether an employer agreed to its employee’s moving to the forum state
and (2) where the employee was performing his job duties when the events
giving rise to the claims (here, termination) took place. Embry’s proposed test
is not consistent with the defendant-focused inquiry a court is to conduct in
determining whether there is personal jurisdiction. The Supreme Court has
held that a “plaintiff cannot be the only link between the defendant and the
forum. Rather, it is the defendant’s conduct that must form the necessary


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connection with the forum State that is the basis for its jurisdiction over him.”
Walden, 571 U.S. at 285.
      Embry has failed to show that Hibbard had sufficient contacts with
Louisiana. The district court correctly concluded it lacked personal jurisdiction
over Hibbard.
      Embry also challenges the district court’s denial of his motion for
jurisdictional discovery, which we review for abuse of discretion. See Davila v.
United States, 713 F.3d 248, 263–64 (5th Cir. 2013). As the party opposing
dismissal and requesting discovery, Embry bears the burden of demonstrating
its necessity. Id. at 264. He is not entitled to such discovery if the record shows
that discovery is not likely to produce the facts needed to withstand Hibbard’s
motion to dismiss. Id. Relying on our decision in Fielding v. Hubert Burda
Media, Inc., 415 F.3d 419 (5th Cir. 2005), Embry argues that even if he has not
shown that Hibbard had sufficient contacts with Louisiana for personal
jurisdiction, the district court should have permitted Embry to conduct
discovery limited to the issue of personal jurisdiction.
      In Fielding, while holding that the district court did not abuse its
discretion in denying jurisdictional discovery, we recognized that a plaintiff
should be permitted to conduct jurisdictional discovery if he has alleged with
reasonable particularity the possible existence of the requisite contacts with
the forum state. Id. at 429. Embry has alleged only his own contacts with the
forum state. He asserts that “nearly all of the documentary materials relevant
to the personal jurisdiction analysis are in [the] sole and exclusive possession
of Defendant because Mr. Embry was required to return all such materials
once his employment terminated.” He does not identify, though, what these
“materials” would be, or how they would show that Hibbard has sufficient
minimum contacts with Louisiana for purposes of specific personal
jurisdiction. Embry has therefore failed to carry his burden of showing the
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requested discovery would likely produce facts sufficient to support his
argument of personal jurisdiction. Thus, there was no abuse of discretion in
not allowing additional jurisdictional discovery to take place. See Freeman v.
United States, 556 F.3d 326, 342–43 (5th Cir. 2009).
      Finally, Embry challenges the district court’s refusal to allow him to file
a surreply. He argues that the refusal was error because Hibbard introduced
new evidence as an exhibit to its reply in support of its motion to dismiss, and
the district court referred to the exhibit when dismissing Embry’s claims.
Whether to allow filing a surreply is within the sound discretion of the district
court, subject to review for abuse of discretion. Austin v. Kroger Texas, L.P.,
864 F.3d 326, 336 (5th Cir. 2017). The exhibit concerned the address on
Embry’s paycheck stub, evidence which formed an insubstantial part of the
district court’s decision. The district court did not err in refusing Embry’s
request to file a surreply.
      AFFIRMED.




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