Kel-Sea Adventures LLC v. Contender Boats, Inc. and Great American Insurance Company

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2024 CA 0208

KEL- SEA ADVENTURES LLC

allff-
M-1

CONTENDER BOATS, INC. AND
GREAT AMERICAN INSURANCE GROUP

Judgment Rendered:

On Appeal from the Twenty -First Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
Docket No. 2022- 0002767, Div. C

Honorable Erica W. Sledge, Judge Presiding

Gino J. Rendeiro Counsel for Plaintiff/Appellant
David E. Kavanagh Kel- Sea Adventures LLC
New Orleans, Louisiana

Aaron B. Greenbaum Counsel for Defendant/ Appellee
Salvador J. Pusateri Contender Boats, Inc.
Kristian B. Dobard
New Orleans, Louisiana

Christopher E. Carey Counsel for Defendant/ Appellee
New Orleans, Louisiana Great American Insurance Group

McCLENDON, J.

Plaintiff-appellant, Kel- Sea Adventures LLC ( Kel- Sea), appeals the trial court' s

judgment rendered in favor of defendant -appellee, Contender Boats, Inc. ( Contender),

sustaining Contender's objection of lack of personal jurisdiction and dismissing Kel- Sea' s

claims against Contender. The issue before this court is whether the assertion of personal

jurisdiction by Louisiana over Contender complies with the limits of constitutional due

process. Finding that it does not, we affirm.

FACTS AND PROCEDURAL HISTORY

Defendant -appellee, Contender, a Florida corporation with its principal place of

business in Homestead, Florida, designs and manufactures fishing vessels " solely in the

State of Florida." The lawsuit underlying this appeal concerns a fishing vessel originally

built by Contender for Intensity Offshore Outfitters, LLC ( Intensity), a Louisiana limited

liability company, and subsequently purchased from Intensity by plaintiff-appellant Kel-

Sea, also a Louisiana limited liability company.

In February 2016, Josh Bodenheimer attended the Miami Boat Show in Miami,

Florida, on behalf of Intensity. While at the Miami Boat Show, Mr. Bodenheimer made

contact with representatives of Contender and placed an order for the purchase of a

fishing vessel. Contender manufactured the subject 2017 39' Contender 39ST fishing
vessel, hull identification number: JDJ9V109F617 ( the Vessel), solely within Florida. The

work order, invoice, and supplemental invoice all reflected that the Vessel was to be sold

to Intensity, located in Metairie, Louisiana, and shipped to Intensity, " F. O. B." Homestead,
Florida.' After Intensity paid for the Vessel via a bank wire transfer directed to

Contender's Florida bank account, 2 Contender made delivery of the Vessel to Intensity in

Florida and issued a Limited Warranty Statement in favor of "the original ... owner[]" of

the Vessel.

I " FOB" is an abbreviation for " FREE ON BOARD[,]" a term which denotes that the seller's delivery is
complete, and the risk of loss passes to the buyer, when the goods pass into the transporter's possession.
See Black's Law Dictionary ( 12th ed. 2024). Stated differently, " F. O. B." means title is transferred at the
time goods are delivered to the carrier. See Lowe' s Home Center, Inc. v. Kennedy, 32, 443 ( La. App. 2
Cir. 10/ 27/ 99), 744 So. 2d 711, 713.

2 The original purchase price of the Vessel is redacted from the record.

Giving rise to the lawsuit underlying this appeal, Kel- Sea purchased the Vessel

from Intensity for the price of $300, 000. 00 on or about July 31, 2018. After inspections

of the Vessel allegedly revealed manufacturing defects, Kel- Sea filed a petition for

damages in the 21st Judicial District Court in Tangipahoa Parish on September 12, 2022.

The petition alleged the Vessel " sustained severe and permanent damages as a result of

manufacturing and/ or design defects and/ or manufacturing inadequacies through normal

and foreseeable use," which rendered the Vessel a " constructive total loss." Continuing,

the petition alleged Kel- Sea sustained economic damages from loss of the use of the

Vessel and the resulting loss of revenue. The petition further alleged that Contender, as

the Vessel' s manufacturer, and Great American Insurance Group, as Kel- Sea' s insurer for

damages and losses sustained due to marine perils, were liable to Kel- Sea pursuant to

the Louisiana Products Liability Act, LSA- R. S. 9: 2800. 51, et seq., as well as theories of

negligence and breach of contract/ warranty. Kel- Sea did not name Intensity as a party

to the underlying lawsuit.

Contender responded to Kel- Sea' s petition on January 13, 2023. 3 Contender filed

an answer, a declinatory exception pleading the objection of lack of personal jurisdiction,

a peremptory exception pleading the objection of no cause of action, and a peremptory

exception pleading the objection of no right of action. 4 Of these exceptions, only

Contender's exception of lack of personal jurisdiction is at issue in this appeal. In that

regard, Contender asserted that it was a Florida corporation, with a principal place of

business in Florida, and built boats solely in Florida; that it had no offices, employees, or

property in Louisiana; and that all of the activity related to the manufacture of the Vessel,

as well as the sale and delivery of the Vessel to the original purchaser, occurred in Florida.

Maintaining that these contacts with Louisiana did not constitute sufficient minimum

3 Great American Insurance Group also answered the petition and asserted exceptions and defenses, but
is not a party to this appeal.

4 Louisiana Code of Civil Procedure article 922 recognizes three exceptions: the declinatory exception, the
dilatory exception, and the peremptory exception. At issue in this appeal is a declinatory exception raising
the objection of the court's lack of jurisdiction over the person of the defendant. See LSA- C. C. P. art.
925( A)( 5). Herein, for brevity, we refer to same as an exception of lack of personal jurisdiction. Likewise,

we refer to the peremptory exceptions raising the objections of no cause of action and no right of action
as exceptions of no cause and no right of action. See LSA- C. C. P. art. 927( 5) and ( 6).

3

contacts to subject Contender to personal jurisdiction in Louisiana, Contender sought

dismissal of Kel- Sea' s claims.

Kel- Sea opposed Contender' s exceptions in a memorandum filed on April 27, 2023.

Regarding the exception of lack of personal jurisdiction at issue herein, Kel- Sea argued

Contender had established minimum contacts with Louisiana because Contender was

registered to do business in Louisiana and had maintained long- term authorized dealer

relationships with boat dealerships in Louisiana. Thus, Kel- Sea maintained Contender had

benefitted from " a substantial physical presence in Louisiana ... through the sales and

service of its vessels and through the significant activities of its authorized dealer agents"

in Louisiana for many years, including the period of time when the Vessel was built.

Contender filed a reply memorandum in support of its exceptions on June 8, 2023,

specifically addressing the arguments Kel- Sea raised in its opposition memorandum. 5

Contender conceded that it was registered to do business in Louisiana and previously had

an authorized dealership relationship with a Louisiana boat dealership, but denied that

Contender or its authorized dealer directed any activity into Louisiana related to the

original purchase of the Vessel. Rather, Contender argued the original purchaser,

Intensity, unilaterally brought the Vessel into Louisiana, and Contender and its authorized

dealer had no involvement in Intensity's subsequent sale of the Vessel to Kel- Sea.

Contender concluded, " having an authorized dealer in Louisiana or previously selling

products in Louisiana does not subject a foreign entity to the equivalent of ' general'

jurisdiction in Louisiana for a product sold and delivered in another state."

Contender's exception of lack of personal jurisdiction, as well as Contender' s

exceptions of no cause and no right of action, came for hearing before the trial court on

June 12, 2023. During the hearing, Contender's exceptions, Kel- Sea' s memorandum in

opposition, and Contender's reply brief were offered, filed, and introduced into evidence.

Various exhibits were attached to the exceptions, memorandum in opposition to the

exceptions, and the reply brief. After taking the matter under advisement, the trial court

5 At the outset of the hearing, Kel- Sea orally moved to strike Contender's reply memorandum on the basis
that it was not timely filed. The trial court denied the oral motion to strike. Kel- Sea does not challenge this
ruling on appeal.

2

issued written reasons for judgment on June 20, 2023, granting the exception of lack of

personal jurisdiction as follows:

With regard to the Exception of Lack of Personal Jurisdiction, it is
undisputed that there was no activity directed into Louisiana by Contender
concerning the [ Vessel] in question. Specifically, all actions associated with
the initial sale of the [ Vessel] at issue, including delivery and taking
possession of the [ Vessel], occurred in Florida. All vessel design and
manufacturing occurred in Florida. Therefore, general jurisdiction is

necessary for the matter to proceed in this forum.

Here, Contender inarguably has some contact with the State of
Louisiana. Perhaps significantly, Contender previously
most had an

authorized dealer in the State of Louisiana which sold and repaired
Contender vessels. Further, Contender was authorized to do business within
the State. However, the corporation has never owned or operated any
facilities or physical assets within the State nor has Contender maintained
a bank account within the State or had an employee within the State.
Counsel for Plaintiff submitted several editions of Marlin magazine and
InTl7e& te magazine which contain Contender advertisements, and counsel
submits that these were forwarded to Louisiana residents. However, both
magazines are Florida publications. Presumably, residents of any state could
obtain a subscription to the publications.

Overall, based upon the evidence submitted, the Court finds that
Contender lacks minimum contacts with the State of Louisiana sufficient to
establish jurisdiction pursuant to La. R. S. 13: 3201. Contender's contacts
with the State are simply insufficient to constitute minimum contacts to
establish personal jurisdiction over Contender, and any assertion of
jurisdiction by this Court would violate principles of fair play and substantial
justice. Further, the Court finds no compelling or significant interest on
behalf of the State in adjudicating the claims at issue.

The trial court signed a July 7, 2023 written judgment in conformity with its written

reasons, which provides, in pertinent part:

The Court took the matter under advisement and considering the
arguments of counsel, memoranda submitted, evidence submitted, and

applicable law[,] the Court finds that Contender Boats, Inc. lacks minimum
contacts with the State of Louisiana sufficient to establish personal
jurisdiction pursuant to La. R. S. 13: 3201.

IT IS HEREBY ORDERED, ADJUDGED[,] AND DECREED that the
Declinatory Exception of Lack of Jurisdiction over the Person of the
Defendant pursuant to Louisiana Code of Civil Procedure article 925( A)( 5)
filed on behalf of Contender Boats, Inc. be and is hereby GRANTED for the
reasons set forth in the Reasons for Judgment issued on June 20, 2023.

IT IS FURTHER ORDERED, ADJUDGED[,] AND DECREED that
this matter . . . be and is hereby DISMISSED as to any claims against
Contender Boats, Inc. due to lack of personal jurisdiction over the
defendant, Contender Boats, Inc., without prejudice, with each party to
bear its own costs.

5

From this judgment, Kel- Sea appealed. 6

STANDARD OF REVIEW

In reviewing a judgment on an exception of lack of personal jurisdiction, appellate

courts apply the manifest error standard of review to the factual findings underlying the

judgment. The application of established rules of law to the facts, however, is a legal

question,
and thus, the legal issue of personal jurisdiction over a nonresident by a

Louisiana court is subject to de novo review. Bridges v. Mosaic Global Holdings, Inc.,

2008- 0113 ( La. App. 1 Cir. 10/ 24/ 08), 23 So. 3d 305, 314, writ denied, 2008- 2783 ( La.

2/ 20/ 09), 1 So. 3d 496.

XATITA

The Louisiana long- arm statute, LSA- R. S. 13: 3201( B), provides that a court of this

State may exercise personal jurisdiction over a nonresident on any basis consistent with

the Louisiana Constitution and the Constitution of the United States. Therefore, the limits

of LSA- R. S. 13: 3201 and the limits of constitutional due process are coextensive, and the

sole inquiry into jurisdiction over a nonresident is a one-step analysis of the due process

requirements. Frederic v. Zodiac Development, 2002- 1178 ( La. App. 1 Cir. 2/ 14/ 03),
839 So. 2d 448, 452.

The constitutional due process test, which was first enunciated in International

Shoe Co. v. State of Washington, 326 U. S. 310, 320, 66 S. Ct. 154, 160, 90 L. Ed. 95

1945), is two- pronged: the first prong requires that a nonresident defendant have certain

minimum contacts" with the forum state, and the second prong requires that

maintenance of the suit not offend traditional notions of fair play and substantial justice.

See Bridges, 23 So. 3d at 314- 315.

The first prong of the constitutional due process test, i.e., the " minimum contacts"

test, is satisfied by a single act or actions by which the defendant purposefully avails itself

of the privilege of conducting activities within the forum state, thus invoking the benefits

and protections of its laws, such that the nonresident should reasonably anticipate being

6
Originally, Kel- Sea filed a Notice of Intention to Seek Supervisory Writs. On review, this court observed
that the July 7, 2023 judgment granting the exception of lack of personal jurisdiction and dismissing Kel-
Sea' s claims against Contender was a final, appealable judgment pursuant to LSA-C. C. P. art. 1915( A)( 1).
Thus, in an action dated November 6, 2023, this court granted Kel- Sea' s writ for the limited purpose of
remanding the matter to the trial court with instructions to grant Kel- Sea an appeal.

haled into court in the forum state. See Bridges, 23 So. 3d at 315. The " purposeful

availment" requirement ensures that the nonresident defendant will not be haled into a

jurisdiction solely as a result of a random, fortuitous, or attenuated contact, or by the

unilateral activity of another party or a third person other than the defendant. See Asahii

Metal Industry Co., Ltd. v. Superior Court of California, 480 U. S. 102, 107 S -Ct.

1026, 94 L. Ed. 2d 92 ( 1987).

The second prong of the constitutional due process test considers the fairness of

the assertion of jurisdiction. Once minimum contacts are established, these contacts may

be considered in light of other factors to determine whether the assertion of personal

jurisdiction would comport with " fair play and substantial justice." Bridges, 23 So. 3d at

315. When the plaintiff meets the burden of proving minimum contacts, a presumption

of reasonableness of jurisdiction arises. The burden then shifts to the opposing party to

prove the assertion of jurisdiction would be so unreasonable in light of traditional notions

of fair play and substantial justice as to overcome the presumption of reasonableness

created by the defendant's minimum contacts with the forum. Bridges, 23 So. 3d at 315.

In elaborating on the constitutional due process test set forth in International

Shoe, 326 U. S. 310, the Supreme Court's decisions have recognized two types of

personal jurisdiction: general jurisdiction, sometimes called " all- purpose" jurisdiction, and

specific jurisdiction, sometimes called " case -linked" jurisdiction. Bristol- Myers Squibb

Co. v. Superior Court of California, San Francisco County, 582 U. S. 255, 262, 137

S. Ct. 1773, 1779- 80, 198 L. Ed. 2d 395 ( 2017). A court may assert general jurisdiction

over foreign ( sister -state or foreign -country) corporations to hear any and all claims

against them when their affiliations with the state are so " continuous and systematic" as

to render them essentially at home in the forum state. Specific jurisdiction, on the other

hand, depends on an affiliation between the forum and the underlying controversy,
principally, an activity or an occurrence that takes place in the forum state and is therefore

subject to the state' s regulation. Goodyear Dunlop Tires Operations, S. A. v. Brown,

564 U. S. 915, 919, 131 S. Ct. 2846, 2851, 180 L. Ed. 2d 796 ( 2011). In other words,

when a forum seeks to exercise specific jurisdiction over an out-of-state defendant who

has not consented to suit there, the requirement of meaningful minimum contacts is

N

satisfied when the defendant has purposefully directed his activities at residents of the

forum and the litigation results from alleged injuries arising out of or related to those

activities. Frederic v. Zodiac Development, 2002- 1178 ( La. App. 1 Cir. 2/ 14/ 03), 839

So. 2d 448, 452. The two- pronged connotational due process analysis applies regardless

of whether a state asserts general or specific jurisdiction. See Frederic, 839 So. 2d at

452.

General Jurisdiction

We first consider whether Contender' s contacts with Louisiana are sufficient to

subject it to the general personal jurisdiction, or " all- purpose" jurisdiction, of Louisiana' s

courts. See Bristol- Myers, 582 U. S. at 262. The Supreme Court has issued only a few

cases addressing general jurisdiction since International Shoe, 326 U. S. 310. See

Daimler AG v. Bauman, 571 U. S. 117, 129, 134 S. Ct. 746, 755, 187 L. Ed. 2d 624

2014). Of these, Perkins v. Benguet Consolidated Mining Co., 342 U. S. 437, 448,

72 S. Ct. 413, 96 L. Ed. 485 ( 1952), remains the " textbook case of general jurisdiction

appropriately exercised over a foreign corporation that has not consented to suit in the

forum." Daimler, 571 U. S. at 129. In Perkins, 342 U. S. at 438, a company incorporated

in the Philippines was found to be subject to general personal jurisdiction in Ohio, because

Ohio was the corporation' s principal, though temporary, place of business. After the

company's operations in the Philippines were completely halted during World War II, the

president, who was also the general manager and the principal stockholder, moved to

Ohio. There, the president kept an office, maintained company files, and oversaw

company activities. The Supreme Court concluded that the foreign corporation, through

its president, " ha[ d] been carrying on in Ohio a continuous and systematic, but limited,

part of its general business," and the exercise of general jurisdiction over the Philippine

corporation by an Ohio court was " reasonable and just." Perkins, 342 U. S. at 438.

In contrast, in Hellicopteros Nacionalles de Colombia,, S. A. v. Hall, 466 U. S.

408, 104 S. Ct. 1868, 80 L. Ed. 2d 404 ( 1984), the Supreme Court determined that Texas

could not exercise personal jurisdiction over a Colombian corporation after the

corporation' s helicopter crashed in Peru, killing four U. S. citizens. In Helicopteros, the

corporation' s contacts with Texas included sending its chief executive officer to Houston

M

for a contract -negotiation session; accepting into its New York bank account checks

drawn on a Houston bank; purchasing helicopters, equipment, and training services from

a helicopter company in Fort Worth for substantial sums; and sending personnel to the

Fort Worth helicopter company for training. Helicopteros, 466 U. S. at 416. The Supreme

Court found these contacts did not resemble the continuous and systematic general

business contacts previously found to warrant general jurisdiction in Perkins, 342 U. S.

at 448, writing, " mere purchases, even if occurring at regular intervals, are not enough"

to warrant personal jurisdiction in a cause of action not related to the purchases.

Helicopteros, 466 U. S. at 418.

In Goodyear, 564 U. S. 915, the Supreme Court considered whether foreign

subsidiaries of a United States parent corporation were amenable to suit in state court

on claims unrelated to any activity of the subsidiaries in the forum state. Goodyear, 564

U. S. at 918. In that case, after two boys from North Carolina were killed in a bus accident

outside Paris, the boys' parents brought a wrongful death suit in North Carolina state

court alleging that the bus's tire was defectively manufactured. The Goodyear parent

corporation, as well as Goodyear's Turkish, French, and Luxembourgian subsidiaries,

were named as defendants. While the foreign subsidiaries manufactured tires for sale in

Europe and Asia, their only affiliation with North Carolina was that a small percentage of

the tires they manufactured were distributed in North Carolina. Goodyear, 564 U. S. at

921. Considering the facts of Goodyear in light of Perkins and Helicopteros, the

Supreme Court found Goodyear's foreign subsidiaries were " in no sense at home in North

Carolina." Thus, the foreign subsidiaries' attenuated connections to North Carolina "[ fell]

far short of the ' the continuous and systematic general business contacts' necessary to

empower North Carolina to entertain suit against them on claims unrelated to anything
that connects them to the State." Goodyear, 564 U. S. at 929. Similar to Goodyear, in

Daimler, 571 U. S. 117, the Supreme Court found that a foreign defendant was not

subject to jurisdiction in California for claims " involving only foreign plaintiffs and conduct

occurring entirely abroad." Daimler, 571 U. S. at 120.

More recently, in BNSF Railway Co. v. Tyrrell, 581 U. S. 402, 413, 137 S. Ct.

1549, 1558, 198 L. Ed. 2d 36 ( 2017), the Supreme Court considered whether Montana' s

0

exercise of personal jurisdiction over a railroad doing business in Montana, but not

incorporated or headquartered there, comported with due process. BNSF, 581 U. S. at

407. Although BNSF had " over 2, 000 miles of railroad track and more than 2, 000

employees in Montana[,]" the Supreme Court noted that "the general jurisdiction inquiry

does not focus solely on the magnitude of the defendant's in- state contacts." Rather, the

inquiry requires " an appraisal of a corporation' s activities in their entirety[,]" because a

corporation that operates in many places " can scarcely be deemed at home in all of

them." BNSF, 581 U. S. at 414. Thus, the Supreme Court considered BNSF' s contacts with

Montana in the context of all of BNSF' s business activities, which it conducted in twenty-

eight states. After determining that these contacts amounted to about 6% of BNSF' s total

track mileage and less than 5% of its total work force, the Supreme Court found that

BNSF was not so heavily engaged in activity in Montana as to render it at home there.

See BNSF, 581 U. S. at 407- 414. Although these contacts were sufficient to subject BNSF

to personal jurisdiction in Montana on claims related to its business in Montana, the

Supreme Court found that, under Daimler and Goodyear, BNSF' s in- state business was

not sufficient to permit the assertion of general jurisdiction over the claims at issue, which

were unrelated to any activity occurring in Montana. See BNSF, 581 U. S. at 407-414.

With these precepts of general jurisdiction in mind, we consider the evidence Kel-

Sea offered in support of its arguments that Contender is subject to personal jurisdiction

in Louisiana. Kel- Sea relied primarily on the affidavit of Jimmy Fisackerly, the general

sales manager of Boat Stuf, one of the Louisiana boat dealers with which Contender

previously had an authorized dealership relationship. Mr. Fisackerly attested that Boat

Stuf offers sales and repair services to boats and small fishing vessels at four Louisiana

locations: Harvey, Slidell, Port Sulphur, and Hammond. According to Mr. Fisackerly, Boat

Stuf became an authorized dealer of Contender Boats in Louisiana beginning in 1995, 7

and the relationship between Contender and Boat Stuf continued for approximately

fifteen years before ending around 2010. Mr. Fisackerly further attested that during Boat

7 We note that Kel- Sea sometimes states that Contender' s activities in Louisiana began in 2005 rather than
1995. However, as both 1995 and 2005 pre -date the initial sale of the Vessel at issue, it is not significant
whether Contender' s activities in Louisiana began in 1995 or 2005.

11K

Stufs dealership relationship with Contender, Boat Stuf sold approximately ten to twenty

Contender boats per year in Louisiana, for a total of approximately two hundred new

Contender vessels, and generated hundreds of thousands of dollarS8 in revenue in the

State of Louisiana; Boat Stuf attended boat shows in Louisiana, where Contender' s

products were viewed by the Louisiana public; Boat Stuf provided warranty repairs as

well as other repairs to Contender vessels while the vessels were in Louisiana; and Boat

Stuf participated in advertising campaigns, which included listing Contender's boats and

vessels for sale in Louisiana. Finally, Mr. Fisackerly attested that, after 2010, the

authorized dealer relationship was transferred from Boat Stuf to Bent Marine, and " to the

best of [ his] knowledge, the relationship between Contender and Bent Marine ... lasted

approximately [ nine] years," during which " it is believed many new and/ or used

Contender vessels were sold in Louisiana."

In addition to Mr. Fisackerly' s affidavit, Kel- Sea offered several magazine

advertisements it referenced during the hearing of the exception of lack of personal

juriscliction. 9 The magazine advertisements were included in the March 2023 edition of

1n777eBMe, and the June -July 2022, March 2023, and June -July 2023 editions of Marlin.

Except for the June -July 2023 edition of Marlin, which lacked an address sticker, the

magazines were addressed to be delivered to New Orleans addresses. In all four

magazine advertisements, the Contender advertisement consisted of a photograph

depicting individuals and Contender boats, brief advertising language, and the

contenclerboats. com web address. The advertisements did not reference Boat Stuf or

Bent Marine, nor did they contain any reference to Louisiana.

In objecting to Kel- Sea' s assertion that Contender was subject to personal

jurisdiction in Louisiana, Contender offered numerous exhibits, including a copy of its

Annual Report filed with the Florida Secretary of State, which reflected that Contender

was incorporated in Florida and its principal place of business was located in Homestead,

8 Kel- Sea sometimes states that Contender's sales amounted to hundreds of thousands of dollars, and at
other times, states that Contender' s sales amounted to millions of dollars.

9 Kel- Sea also offered the affidavit of its counsel, Gino J. Rendeiro. However, Contender filed a motion to
strike Mr. Rendeiro' s affidavit. Based upon agreement of counsel, Mr. Rendeiro withdrew the affidavit at
the beginning of the hearing. The trial court's July 7, 2023 judgment noted that this " moot[ ed]" Contender' s
motion to strike. The parties do not raise the issue of this affidavit on appeal.

11

Florida; a certified copy of Contender's February 16, 2011 Application for Authority to
Transact Business in Louisiana, together with Contender's January 1, 2022 Application

for Withdrawal of a Foreign Corporation, both fled with the Louisiana Secretary of State;

and Contender's Foreign Corporation Annual Report for the period ending on March 4,

2021, which reflected that Contender's mailing address and principal business office as

1820 SE 38 Avenue, Homestead, Florida 33035.

In Mr. Neber's first affidavit, regarding Contender's general contacts with

Louisiana, Mr. Neber attested that no Louisiana resident had any ownership interest in

Contender. Mr. Neber further attested that Contender had never and does not currently

have employees in Louisiana; owned or operate any facilities within Louisiana; owned or

operated any physical assets within Louisiana; owned any real property in Louisiana;

maintain, lease, or own a factory or storefront in Louisiana; or engaged in any direct

solicitation of business in Louisiana, including advertisements in Louisiana publications.

While Mr. Neber conceded that Contender previously had a registered office in Louisiana

at the address of its registered agent for service of process, he attested "*[n] o business

was conducted on behalf of Contender at this address and this address was not a

storefront." Mr. Neber further attested that Contender's application for withdrawal of

authority to transact business in Louisiana remained pending at the time he executed his
first affidavit. Additionally, Mr. Neber attested that Contender maintains a " strictly

informational and promotional" website, http:// contenderboats. com. According to Mr.

Neber, the Contender website " catalogs most models and options for vessels[,]" but

purchases could not be made through the website.

Contender offered a second affidavit executed by Mr. Neber on June 7, 2023, with

Contender's reply brief ( Mr. Neber' s second affidavit). Therein, Mr. Neber attested that

any dealer relationship with Bent Marine was terminated effective July 1, 2021, and that

Contender does not currently have an authorized dealer of boats/ vessels in Louisiana. A

copy of the Dealer Cancellation Letter mailed by Contender to Bent Marine on November

4), 2021, was attached to Mr. Neber's second affidavit.

Considering the record as a whole, and remembering that -Kel- Sea bore the burden

of establishing minimum contacts, we agree with the trial court' s conclusion that

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Contender' s contacts in Louisiana were not sufficient to warrant this State' s exercise of

general personal jurisdiction over Contender. See Bridges, 23 So. 3d at 315. Because

Louisiana is neither Contender's place of incorporation nor Contender's principal place of

business, Louisiana can only exercise general personal jurisdiction over Contender if its

affiliations with the State were so continuous and systematic as to render it "at home" in

this State. Although there was a period of time when Contender was registered to do

business in Louisiana, maintained an authorized dealership relationship with Boat Stuf

and Bent Marine, and ran advertisements in magazines which were available to Louisiana

residents, we find these contacts fall short of establishing continuous and systematic

contacts with Louisiana necessary to warrant the exercise of general jurisdiction. See

Perkins, 342 U. S. at 448.

Continuing, and considering Contender's contacts with Louisiana in light of more

recent jurisprudence, we particularly take note of the Supreme Court's reiteration in

BNSF that "the general jurisdiction inquiry does not focus solely on the magnitude of the

defendant' s in- state contacts[,]" but rather, requires " an appraisal of a corporation' s

activities in their entirety[,]" because a corporation that operates in many places " can

scarcely be deemed at home in all of them." See BNSF, 581 U. S. at 414. Here, neither

party presented evidence establishing the significance of Contender's business in

Louisiana within the context of Contender's business activities in its entirety. However, it

is plain from Contender's exhibits, and Mr. Neber's affidavits in particular, that Contender

designs and manufactures boats only in Florida. Although Contender runs advertisements

in certain magazines, none of the advertisements suggest a reader contact Contender in

Louisiana; to the contrary, the advertisements direct a reader to Contender's website,

which is passive in nature because it does not allow users to make purchases and merely

provides promotional and contact information regarding Contender and its products. See

Quality Design & Construction, Inc. v. Tuff Coat Manufacturing, Inc., 2005- 1712

La. App. 1 Cir. 7/ 12/ 06), 939 So. 2d 429, 435. Accordingly, we find no merit in Kel- Sea' s

13

argument that Contender is subject to the general personal jurisdiction of Louisiana' s

courts. l0

Specific Jurisdiction

We next consider whether Contender' s contacts with Louisiana were sufficient to

subject it to the specific personal jurisdiction, or " case -linked" jurisdiction, of Louisiana' s

courts. See Bristol- Myers, 582 U. S. at 262. When a forum seeks to exercise specific

jurisdiction over an out-of-state defendant who has not consented to suit there, the

requirement of meaningful minimum contacts is satisfied when the defendant has

purposefully directed his activities at residents of the forum and the litigation results from
alleged injuries arising out of or related to those activities. Frederic, 839 So. 2d at 452.
Thus, in order for a state court to exercise specific jurisdiction, the suit must arise out of,

or relate to, the defendant's contacts with the forum. Bristol- Myers, 528 U. S. at 262.

When there is no such connection, specific jurisdiction is lacking regardless of the extent

of a defendant's unconnected activities in the state. Bristol- Myers, 528 U. S. at 264.

Stated differently, specific jurisdiction is confined to adjudication of issues deriving from,
or connected with, the very controversy that establishes jurisdiction. Bristol- Myers, 528

U. S. at 262.

As noted by the trial court in its written reasons for judgment, " there was no

activity directed into Louisiana by Contender concerning the [ Vessel] in question[,]" and
all actions associated with the initial sale of the [ Vessel] at issue," including " delivery

and taking possession" and "[ a] ll vessel design and manufacturing" occurred in Florida.

io Regarding Kel- Sea' s argument that Contender's previous involvement in litigation in Louisiana' s federal
courts proves Contender has purposefully availed itself of the privilege of utilizing Louisiana' s courts, we
likewise find no merit. The question before this court is whether Louisiana can exercise personal jurisdiction
over Contender in this case, under the facts and circumstances before us, not whether Louisiana could
exercise personal jurisdiction in other cases.

Further, review of the federal court pleadings Kel- Sea offered in support of this argument
establishes that both cases were factually and procedurally distinguishable from this matter. In Heisser v.
Contender Boats, Inc., No. 07- 9777, 2009 WL 1309741 ( E. D. La. May 7, 2009), the plaintiff filed suit in
the Eastern District of Louisiana alleging defects in a Contender boat purchased through Boat Stuf during
a boat show in New Orleans. Contender sought and obtained the dismissal of the plaintiff's claims for failing
to prove his claims exceeded the jurisdictional threshold amount of $75, 000. Regarding Contender Boats
v. Anadarko Petroleum Corporation, et al., No. 10- 4208 ( E. D. La. June 18, 2020), Kel- Sea offered a
conditional transfer order reflecting that Contender' s complaint was originally filed in the Southern District
of Florida, Miami Division, before being transferred to the Eastern District of Louisiana due to questions of
fact that are common to the actions previously transferred to the Eastern District of Louisiana." See 28
U. S. C. § 1407 and Rule 7. 1 of the Rules of Procedure of the United States Judicial Panel on Multidistrict
Litigation.

The only evidence offered by either party regarding the initial contact between Intensity

and Contender, the construction of the Vessel, the initial purchase of the Vessel, and the

delivery of the Vessel was contained in the January 13, 2023 affidavit of Joseph Neber,

the President and owner of Contender since 1984, and in attachments thereto ( Mr.

Neber's first affidavit). In Mr. Neber' s first affidavit, he attested as follows:

19. In February 2016, Josh Bodenheimer of Intensity Offshore Outfitters,
LLC attended the Miami Boat Show in Miami, Florida, at which time he made
contact with representatives of Contender concerning the purchase of a
fishing vessel.

20. While at the Miami Boat Show in February 2016, Josh Bodenheimer of
Intensity Offshore Outfitters, LLC wrote his initial order for a 39' Step Hull
fishing vessel.

21. A Production Work Order was entered by Contender on April 13, 2016,
for a 39' Step Hull fishing vessel to be sold to Intensity Offshore Outfitters,
LLC, with delivery " F. O. B. Homestead, FL", meaning that Intensity Offshore
Outfitters, LLC would take delivery of the vessel in Homestead, Florida....

22. Contender then manufactured [ the Vessel] solely within Florida.

23. An Invoice dated August 3, 2016, was issued by Contender to Intensity
Offshore Outfitters, LLC for the sale of the Vessel. Delivery was again noted
as " F. O. B. Homestead, FL". . . .

24. Intensity Offshore Outfitters, LLC then paid for the Vessel via a bank
wire transfer directed to Contender's bank account in Florida.

25. The purchase and sale of the Vessel between Contender and Intensity
Offshore Outfitters, LLC, did not involve any dealer, broker, agent, or third -
party located within the State of Louisiana.

26.The Vessel was delivered to Intensity Offshore Outfitters, LLC in
Homestead, Florida, where Intensity Offshore Outfitters, LLC took
possession of the Vessel.

27. Contender was not involved in the transport of the Vessel to the State
of Louisiana.

28. Contender provided a Limited Warranty Statement to Intensity Offshore
Outfitters, LLC relating to the Vessel... The Limited Warranty Statement
makes clear that it applies only to the original owner of the Vessel, which
was Intensity Offshore Outfitters, LLC.

29. Contender has no record of a warranty claim having been made by
Intensity Offshore Outfitters, LLC concerning the Vessel.

30. Contender has no record of Contender ever having performed
maintenance or repairs on the Vessel in the State of Louisiana.

31. Contender has never directly sold any of its vessels to Kel- Sea
Adventures, LLC.

32. Contender had no involvement concerning the purchase and sale of the
Vessel as between Intensity Offshore Outfitters, LLC and Kel- Sea
Adventures, LLC.

15

Thus, Mr. Neber's uncontradicted affidavit testimony plainly established the

following: Mr. Bodenheimer, on behalf of Intensity, traveled to Florida, where he made

contact with Contender and ordered the Vessel; Contender designed and built the Vessel

in Florida; Intensity issued payment for the Vessel to Contender's bank account in Florida;

Contender delivered the Vessel to Intensity in Florida; Contender was not involved in the

transport of the Vessel to Louisiana; and Contender was not involved in Intensity' s sale

of the Vessel to Kel- Sea. Kel- Sea does not dispute these facts, nor does Kel- Sea allege

any version of events in which any activity or occurrence related to the initial sale of the

Vessel took place in Louisiana. Further, Kel- Sea does not allege that Contender' s

authorized dealers in Louisiana were involved in the initial sale of the Vessel to Intensity,

the subsequent sale of the Vessel to Kel- Sea, or any repairs to the Vessel. Accordingly,

the record contains ample support establishing that Contender did not direct any activity

into Louisiana concerning the Vessel, and that all activity associated with the initial sale,

manufacture, and delivery of the Vessel occurred in Florida.

Applying the established rules of law to these facts, we find that specific jurisdiction

does not exist in this matter. As set forth above, in order for a court to exercise specific

jurisdiction over a claim, there must be an " affiliation between the forum and the

underlying controversy, principally, [ an] activity or an occurrence that takes place in the

forum State." Bristol- Myers, 582 U. S. at 262, citing Goodyear, 564 U. S. at 919

internal quotation marks and brackets omitted). In the absence of such a connection,

specific jurisdiction does not exist, regardless of the extent of a defendant's unconnected

activities in the state. See Bristol- Myers, 582 U. S. at 264. In this matter, Contender did

not direct any activities regarding the Vessel into Louisiana and there is nothing to

establish that this litigation resulted from alleged injuries arising out of or related to any

activities Contender " purposefully directed" at Louisiana residents. See Frederic, 839

So. 2d at 452. Moreover, the record reflects that the Vessel arrived in Louisiana solely as

the result of the unilateral activity of the original purchaser, and Kel- Sea does not allege

otherwise. Contender cannot be made subject to Louisiana' s jurisdiction on the basis of

such unilateral activity. See Agape Broadcasters Inc. v. Estate of Sampson through

Matix, 489 F. Supp. 3d 550, 556 ( W. D. La. 2020). This is true even considering the

In

stream -of -commerce doctrine, which permits a state to exercise personal jurisdiction over

a non- resident defendant who delivers products into the stream -of -commerce with the

expectation that they will be purchased by consumers in the forum state. Under the

stream -of -commerce doctrine, once a product has reached the end of the stream and is

purchased, a consumer's unilateral decision to take a product to a distant state, without

more, is insufficient to confer personal -jurisdiction over the manufacturer or distributor.

See Agape, 489 F. Supp. 3d at 557. Here, the Vessel was purchased and delivered to

the original purchaser in Florida. Intensity's subsequent decision to bring the Vessel into

Louisiana and sell it to Kel- Sea does not render Contender subject to personal jurisdiction

in this State. Accordingly, we find no merit in Kel- Sea' s assertions that the Contender is

subject to specific personal jurisdiction in Louisiana.

CONCLUSION

For the foregoing reasons, the July 7, 2023 judgment dismissing the claims of Kel-

Sea Adventures LLC, against Contender Boats, Inc., for lack of personal jurisdiction, is

affirmed. Costs of this appeal are assessed against Kel- Sea Adventures LLC.

gTif"
Tul" I

I WA

STATE OF LOUISIANA

FIRST CIRCUIT

2024 CA 0208

KEL- SEA ADVENTURES LLC

VERSUS

LANIER, J., concurring.

I believe Contender has sold enough boats to Louisiana residents in the recent

past to still be within the stream of commerce, deriving a significant financial benefit

from Louisiana residents and creating minimum sufficient contacts for Louisiana to

have personal jurisdiction over Contender; however, the plaintiff did not provide

sufficient evidence of such. Therefore, respectfully, I am constrained by the

evidence submitted in this case to concur in the result.