1

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-30897

Charles Guidry; Charlene Guidry,

Plaintiffs-Appellants,

VERSUS

United States Tobacco Company, Inc., et al.

Defendants,

Smokeless Tobacco Council, Inc.; Smokeless Tobacco Research

Council, Inc.; Tobacco Institute, Inc.; Council for

Tobacco Research--USA, Inc.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

 

September 14, 1999

Before REYNALDO G. GARZA, POLITZ, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Plaintiffs-Appellants Charles and Charlene Guidry appeal from

the district court’s dismissal, for lack of personal jurisdiction,

of their civil actions against Defendants-Appellees, Smokeless

Tobacco Council, Inc.; Smokeless Tobacco Research Council, Inc.;
2

Tobacco Institute, Inc.; and, Council for Tobacco Research--USA,

Inc. Concluding that the plaintiffs have established a prima facie

showing of personal jurisdiction sufficient to avoid dismissal

without an evidentiary hearing, we reverse and remand. 

I. Facts and Procedural History

Charles and Charlene Guidry, residents of Louisiana, filed

suit in Louisiana state court against six tobacco manufacturers,

United States Tobacco Co., Pinkerton Tobacco Co., Conwood Company,

L.P., R.J. Reynolds Tobacco Co., Philip Morris Incorporated, and

Brown & Williamson Tobacco Co.; and four of the tobacco

manufacturers’ trade associations, Smokeless Tobacco Council, Inc.,

Smokeless Tobacco Research Council, Inc., Tobacco Institute, Inc.,

and Council for Tobacco Research--USA, Inc. None of the defendants

is a resident of Louisiana, and none of the tobacco trade

associations is qualified to do business in Louisiana.

The plaintiffs alleged, principally, that each tobacco

manufacturer and each tobacco trade association made intentional

misrepresentations in Louisiana to Charles Guidry and other

residents that the products of the tobacco manufacturers sold in

the state were not addictive or carcinogenic; that when the tobacco

manufacturers and the tobacco trade associations made these

misrepresentations they knew, not only that the tobacco products

would cause addiction and cancer, but that the tobacco

manufacturers manipulated the levels of nicotine in their tobacco

products to create a highly compulsive physiological need for
1 The particularized nominate causes of action asserted by the

plaintiffs are: fraud and deceit; intentional misrepresentation;

negligent misrepresentation, breach of express or implied warranty,

intentional infliction of emotional distress, negligence, strict

liability, and redhibition. 

3

nicotine in Charles Guidry and other residents of the state; that

Charles Guidry, while in Louisiana, relied on each defendant’s

knowingly false representations, purchased and used the tobacco

manufacturers’ products, became heavily addicted to nicotine, and

contracted cancer from the tobacco.1 The plaintiffs also allege

that the tobacco trade associations, in addition to individually

committing delictual offenses and quasi-offenses causing the

plaintiffs injury and damage in Louisiana, conspired and acted in

concert with each other and the tobacco manufacturers to conceal or

falsely minimize the addictive and carcinogenic effects of the

tobacco products from the plaintiffs, to create a false impression

that no evidence of tobacco addiction or carcinogenesis had been

found even after diligent scientific research, and to thereby

create in Charles Guidry and other residents in Louisiana the false

impression that the addictive and carcinogenic effects of the

tobacco products were much less than the defendants knew them to

be.

Service of process on the four tobacco trade association

defendants was made under the Louisiana long-arm statute, La. Rev.

Stat. Ann. § 13:3204 (West 1991). All of the defendants removed

the case to the federal district court. The four tobacco trade
4

association defendants moved under Rule 12(b)(2) to dismiss the

suit against them for lack of personal jurisdiction. The original

district court judge to whom the motion was assigned denied it

based on his findings that (1) the plaintiffs had presented a prima

facie case for specific personal jurisdiction; and (2) the exercise

of personal jurisdiction over those defendants will not offend

traditional notions of fair play and substantial justice.

A different district court judge, in response to the tobacco

trade associations’ motion, certified under 28 U.S.C. § 1292(b) one

part of the personal jurisdiction inquiry, i.e., whether there

was personal jurisdiction based on “the foreign defendants’ alleged

conspiracy with in-state defendants.” A panel of this court denied

certification of an appeal on the question. Guidry v. United States

Tobacco Co., No. 97-00110 (5th Cir. Jun. 17, 1997). The tobacco

trade association defendants moved for reconsideration of the

original district judge’s decision denying their Rule 12(b)(2)

motions to dismiss for lack of personal jurisdiction. After

reassignment of all motions to a different judge, the district

court granted reconsideration and dismissed the four tobacco trade

association defendants from the suit. In its memorandum ruling the

district court assigned reasons stating that (1) specific personal

jurisdiction was lacking because the plaintiffs’ allegations of a

conspiracy between the tobacco trade associations and the tobacco

manufacturers were merely “conclusory;” and (2) general personal

jurisdiction was not present because the alleged contacts between
2In its memorandum ruling the district court held that neither

specific nor general personal jurisdiction could be exercised over

any of the tobacco trade association defendants. Yet in its

judgment the district court purportedly dismissed the plaintiffs’

claims against these defendants with prejudice. Under the

circumstances, the district court’s judgment can have no effect as

a dismissal with prejudice but must be considered as a dismissal

for lack of personal jurisdiction, which is not a judgment on the

merits. Personal jurisdiction is an essential element of the

jurisdiction of a district court, without which it is powerless to

proceed to an adjudication. Ruhrgas AG v. Marathon Oil Co., 119

S.Ct. 1563, 1570 (1999)(Ginsburg, J.). A court must find

jurisdiction, both subject matter and personal, before determining

the validity of a claim. Moran v. Kingdom of Saudi Arabia, 27 F.3d

169, 172 (5th Cir. 1994); Cf. Boudloche v. Conoco Oil Corp., 615

F.2d 687, 688-89 (5th Cir. 1980)(no subject matter jurisdiction);

Dassinger v. South Central Bell Telephone Co., 505 F.2d 672, 674

(5th Cir. 1974)(same). Furthermore, if we were to review the

district court’s judgment as a summary judgment on the merits we

would reverse and remand for further proceedings because the

defendants are not entitled to a summary judgment on the present

record made by the parties in anticipation only of a ruling on

personal jurisdiction.

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the four trade association defendants and the forum were not

“substantial, continuous and systematic.”2 The plaintiffs

appealed.

II. Discussion

The single issue presented by the appeal is whether the

district court had personal jurisdiction over the tobacco trade

association defendants. We look first to Louisiana’s “long-arm”

statute, La. Rev. Stat. Ann. § 13:3201 (West 1991). This law

extends personal jurisdiction of courts sitting in Louisiana,

including federal courts, to the limits permitted under the due

process clause of the Fourteenth Amendment. Petroleum Helicopters,

Inc. v. Avco Corp., 513 So.2d 1188, 1192 (La. 1987); See Petroleum
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Helicopters, Inc. v. Avco Corp., 834 F.2d 510 (5th Cir. 1987);

Petroleum Helicopters, Inc. v. Avco Corp., 804 F.2d 1367 (5th Cir.

1986). Our sole inquiry, therefore, is whether the district court

could, consistent with due process, assert personal jurisdiction

over the tobacco trade association defendants.

The due process clause of Fourteenth Amendment protects an

individual’s liberty interest in not being subject to the binding

judgments of a forum with which he has established no meaningful

“‘contacts, ties, or relations.’” Burger King Corp. v. Rudzewicz,

471 U.S. 462, 472 (1985) (quoting International Shoe Co. v.

Washington, 326 U.S. 310, 319 (1945)). Due process generally

demands that the nonresident defendant have “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., 326 U.S. at 316 (quoting

Milliken v. Meyer, 311 U.S. 457, 463 (1940)). 

Minimum contacts with a forum state may arise incident to a

federal court’s “general” or “specific” jurisdiction over a

nonresident defendant. See Bullion v. Gillespie, 895 F.2d 213, 216

(5th Cir. 1990). If a defendant has sufficient “continuous and

systematic” general contacts with the state, e.g., see Perkins v.

Benguet Consolidated Mining Co., 342 U.S. 437, 446 (1952), the

forum may exercise general personal jurisdiction over the defendant

for a “cause of action [that] does not arise out of or relate to

the [defendant’s] activities in the forum state.” Helicopteros
7

Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 (1952).

The district court determined, and the plaintiffs do not argue to

the contrary, that the tobacco trade association defendants’

contacts with Louisiana were insufficient to support general

personal jurisdiction.

The plaintiffs contend, however, that the state or federal

courts in Louisiana may exercise specific personal jurisdiction

over the defendants because this controversy “is related to or

‘arises out of’ [the defendants’] contacts with the forum.” See

id.(citing Shaffer v. Heitner, 433 U.S. 186, 204 (1977)). We are

required to examine the relationship between the defendants, the

forum state, and the litigation, See Shaffer, 433 U.S. at 204, to

determine “whether the defendant[s] purposefully established

‘minimum contacts’ in the forum state” so that it was foreseeable

“that the defendant[s] conduct and connection with the forum state

are such that [they] should reasonably anticipate being haled into

court there.” Burger King Corp., 471 U.S. at 474 (quoting WorldWide Volkswagen v. Woodson, 444 U.S. 286, 297 (1980)).

The analysis of specific jurisdiction may be refined further

into a three-part test: (1) Did the defendant have minimum contacts

with the forum state-–purposely directing its activities toward the

forum state or purposely availing itself of the privilege of

conducting activities therein? (2) Did the plaintiffs cause of

action arise out of or result from the defendant’s forum-related

contacts? (3) Would the exercise of personal jurisdiction be
8

reasonable and fair? 4 Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 1069, at 174 (Supp. 1999) (citing

authorities).

Procedurally, the party invoking the jurisdiction of a federal

court bears the burden of establishing minimum contacts justifying

the court’s jurisdiction over a nonresident defendant. Bullion,

895 F.2d at 216; Brown v. Flowers Industries, Inc., 688 F.2d 328,

332 (5th Cir. 1982), cert. denied, 460 U.S. 1023 (1983). When a

court rules on a motion to dismiss for lack of personal

jurisdiction without holding an evidentiary hearing, as in the

present case, however, the nonmoving party need only make a prima

facie showing, and the court must accept as true the nonmover’s

allegations and resolve all factual disputes in its favor. Latshaw

v. Johnston, 167 F.3d 208, 211 (5th Cir.1999); Bullion, 895 F.2d at

217; Brown 688 F.2d at 332; 5A Wright & Miller, § 1351, at 117-18

(Supp. 1999).

The district court, contrary to the rule affirmed in Latshaw,

Bullion, and Brown, failed to recognize that, because there had

been no evidentiary hearing, Charles and Charlene Guidry needed

only to establish, at the pre-trial, pre-evidentiary hearing stage

of the proceedings, a prima facie showing that (1) each tobacco

trade association defendant had minimum contacts with the forum

state, and (2) the plaintiffs had a cause of action arising out of

each such defendant’s individual forum related contacts. See

Bullion, 895 F.2d at 217. Consequently, the district court passed
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over these crucial issues and only concerned itself with whether

there was specific jurisdiction based upon a conspiracy between the

tobacco trade associations and the tobacco manufacturers and

whether there was general jurisdiction over the trade associations.

The district court did not determine whether the plaintiffs had

made a prima facie case of specific personal jurisdiction over each

tobacco trade association defendant based on a tort committed in

the state, individually and not as part of a conspiracy, by each

particular defendant.

We review de novo a district court’s grant of a motion to

dismiss for lack of personal jurisdiction. Latshaw, 167 F.3d at

210-11; Allred v. More & Peterson, 117 F.3d 278, 281 (5th Cir.

1997), cert. denied, 118 S.Ct. 691 (1998); Jobe v. ATR Marketing,

Inc., 87 F.3d 751, 753 (5th Cir. 1996). From our review of the

pleadings, depositions, affidavits and exhibits of record, we

conclude that the plaintiffs carried their burden of establishing

a prima facie showing that each tobacco trade association defendant

individually had minimum contacts with the forum out of which the

plaintiffs’ causes of action arose. Consequently, the district

court erred in dismissing the plaintiffs’ actions against the trade

associations for lack of personal jurisdiction.

The plaintiffs alleged in their complaint the following facts:

(1) the tobacco trade association defendants, holding themselves

out to be fair and impartial scientific research organizations,

intentionally communicated false information to Charles Guidry in
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Louisiana concerning the tobacco products being sold by the tobacco

manufacturer defendants in the state, viz., that the tobacco

products were not capable of causing serious addictions and cancer

in humans; and that any evidence to the contrary was unreliable and

not scientifically valid; (2) Charles Guidry relied on their false

representations, repeatedly purchased and used the tobacco products

in Louisiana, and, as a result, became unalterably addicted to

nicotine and contracted cancer at the base of his tongue. The

plaintiffs supported their complaint with depositions and exhibits

which tended to corroborate that, despite the tobacco trade

associations’ knowledge of the addictive and carcinogenic risks

associated with use of the tobacco products, they published

articles or ads in national publications circulated in Louisiana

defending and encouraging the use of tobacco products by adults as

a safe, wholesome and traditional American activity; and that at

least one of the tobacco trade association defendants caused its

representatives to appear on national network television programs

and broadcast into Louisiana knowingly false representations that

the tobacco products were not addictive, that the tobacco

manufacturer defendants did not manipulate the products’ levels of

nicotine for the purpose of causing and maintaining addictions in

consumers, and that there was no reliable scientific evidence or

indication that the use of the tobacco products caused compelling

addictions or cancers.

In support of the motions to dismiss for lack of personal
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jurisdiction the tobacco trade associations defendants presented

brief, almost identical, affidavits by their officers stating that

they had never “promoted” or “advertised” tobacco products. From

the depositions of the officers and the plaintiffs’ exhibits,

however, it is evident that at least one of the tobacco trade

associations conceded that it had placed articles or ads in

national publications sold in Louisiana approving and encouraging

the use of tobacco products; and that at least one of the other

trade associations caused its representatives to appear on national

network television programs broadcast in Louisiana and deny as

untrue and scientifically invalid representations made by members

of Congress, e.g., that the tobacco manufacturer defendants’

products were addictive and carcinogenic; that the manufacturers

knowingly manipulated and maintained addictive levels of nicotine

in their products for the purpose of creating in consumers the

physiological need for nicotine and their products as vehicles for

nicotine delivery and consumption. It is possible that the

defendants’ affidavits are not actually in conflict with the

plaintiffs’ allegations. The trade association officers, by denying

that their organizations promoted or advertised tobacco products,

may have intended to deny only that the trade associations engaged

in commercial sales or brand name advertising, and not other forms

of public or private communications. If, however, “there are

conflicts between some of the facts alleged by the plaintiffs and

those alleged by the defendants in their affidavits, such conflicts
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must be resolved in plaintiff(s’) favor for the purposes of

determining whether a prima facie case for in personam jurisdiction

has been established.” Brown, 688 F.2d at 332 (citing and quoting

United States Ry. Equip. Co. v. Port Huron & Detroit R.R., 495 F.2d

1127, 1128 (7th Cir. 1974)(internal quotations omitted)); Latshaw,

167 F.3d at 211; Bullion, 985 F.2d at 217.

Taking as true the facts alleged in the complaint, and shown

by the depositions, affidavits and exhibits, we conclude that the

plaintiffs have made a prima facie showing that each tobacco trade

association defendant individually had sufficient minimum contacts

with the forum state of Louisiana, which caused the plaintiffs to

suffer injury or damage in Louisiana, consisting of the following

intentional and nonintentional torts through each association’s

acts or omissions in the state: (1) Intentional Misrepresentation

Or Delictual Fraud. The elements of a Louisiana delictual fraud or

intentional misrepresentation cause of action are: (a) a

misrepresentation of a material fact, (b) made with the intent to

deceive, and (c) causing justifiable reliance with resultant

injury. See Newport Ltd. v. Sears, Roebuck & Co., 6 F.3d 1058, 1068

(5th Cir. 1993), cert. denied, 512 U.S. 1221 (1994); Abell v.

Potomac Ins. Co., 858 F.2d 1104, 1131 n.33 (5th Cir. 1988), vacated

on other grounds, 492 U.S. 914 (1989)(citing La.Civ.Code arts. 1847

[superseded by La.Civ.Code art. 1953 (1985)], 2315); Ballard’s Inc.

v. North American Land Development Corp., 677 So.2d 648, 651

(La.App. 2nd Cir. 1996); Pittman v. Piper, 542 So.2d 700, 702
13

(La.App. 4th Cir. 1989); Deville v. Leonards, 457 So.2d 311, 313

(La. App. 3d Cir. 1984). Note that these cases involve only

economic harm. We would expect Louisiana courts to use a standard

for intentional misrepresentation involving risk of physical harm

similar to the Restatement (Second) of Torts § 310 (1965): “An

actor who makes a misrepresentation is subject to liability to

another for physical harm which results from an act done by the

other or a third person in reliance upon the truth of the

representation, if the actor (a) intends his statement to induce or

should realize that it is likely to induce action by the other, or

a third person, which involves an unreasonable risk of harm to the

other, and (b) knows (i) that the statement is false, or (ii) that

he has not the knowledge which he professes.” Cf., infra, Devore v.

Hobart Manufacturing, 367 So.2d 836, 839 (La. 1979). (2) Negligent

Misrepresentation That Results In Physical Harm. The elements of a

Louisiana action based on negligent misrepresentation resulting in

physical harm appear to be: (a) a negligent misrepresentation or

giving of false information to another, and (b) foreseeable action

taken by the other in reasonable reliance on such information, (c)

which results in physical harm to the other or to a third person

who reasonably could be expected to be put in peril by the action

taken. See Devore, 367 So.2d at 839 (agreeing with the recognition

of a negligent misrepresentation cause of action by White v. Lamar

Realty, Inc., 303 So.2d 598, 601 (La.App. 2nd Cir. 1974) based on

Civil Code articles 2315 and 2316, which “afford a broad ambit of
14

protection for persons damaged by intentional and negligent acts of

others,” and indicating that Restatement (Second) of Torts, § 311

(1965) provides the standard of conduct for “negligent

misrepresentation that results in physical harm.”); accord Daye v.

General Motors Corp., 720 So.2d 654, 659 (La. 1998); Daye v.

General Motors Corp., 712 So.2d 120, 126 (La.App. 2nd Cir. 1997);

See State Farm Fire & Casualty Co. v. Valley Elec. Membership

Corp., 558 So.2d 731, 736 (La.App. 3d Cir. 1990). On the other

hand, in cases involving only economic harm or pecuniary loss, the

Louisiana Supreme Court and courts of appeal have applied a

standard identical or similar to Restatement (Second) Torts § 552

(1977). Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007, 1016-

18 (La. 1993); Devore, 367 So.2d at 838 n.1, 839; Cf., Beal v.

Lomas & Nettleton Co., 410 So.2d 318, 322 (La.App. 4

th Cir. 1982);

Dousson v. South Cent. Bell, 429 So.2d 466, 468 (La.App. 4th Cir.

1983). (3) Intentional Infliction of Mental Distress. The elements

of the Louisiana cause of action for intentional infliction of

mental distress are: (a) extreme and outrageous conduct (b)

intentionally or recklessly causing (c) severe emotional distress

or bodily harm to another. Bustamento v. Tucker, 607 So.2d 532,

538 (La. 1992) (adopting Restatement (Second) of Torts § 46); White

v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991)(same); Cf. Moresi

v. State Department of Wildlife and Fisheries, 567 So.2d 1081, 1095

(La. 1990)(discussing Restatement (Second) of Torts § 46

approvingly).
15

The plaintiffs have made an adequate prima facie showing, so

far as is required at this stage of the proceedings, that they have

causes of action against each of the tobacco trade association

defendants, individually and directly, for intentional and

nonintentional torts committed by each defendant in the state, that

caused physical injuries and physically harmful effects in the

state, which arose out of or resulted from each defendant’s minimum

contacts with the forum state. The facts shown are that each

tobacco trade association defendant intentionally and negligently

communicated to the plaintiffs and other residents in Louisiana

false representations of material facts as to the addictive and

cancer-causing effects of the manufacturers’ tobacco products and

their intentional manipulation and control of nicotine at addictive

levels in the products; that each defendant intended to deceive the

plaintiffs and others in the state with respect to these material

facts; that Charles Guidry justifiably relied on each defendant’s

false representations of material facts; and that as a result of

each defendant’s false representations and his reliance on them,

Charles Guidry, in Louisiana, used the manufacturers’ tobacco

products, became severely and unalterably addicted to nicotine, and

contracted cancer from his use of the products as an addict; that

each defendant intended by its false misrepresentation to induce

Charles Guidry and other Louisiana consumers to begin or continue

to use the manufacturer’s tobacco products, to become addicted to

them, and to be exposed to an unreasonable risk of contracting
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cancer from the tobacco products; and that each defendant’s acts

and omissions in Louisiana constituted extreme and outrageous

conduct that intentionally or recklessly caused the plaintiffs

severe emotional distress and bodily harm in the forum state. 

When a nonresident defendant commits a tort within the state,

or an act outside the state that causes tortious injury within the

state, that tortious conduct amounts to sufficient minimum contacts

with the state by the defendant to constitutionally permit courts

within that state, including federal courts, to exercise personal

adjudicative jurisdiction over the tortfeasor and the causes of

actions arising from its offenses or quasi-offenses. See, e.g.,

Jobe, 87 F.3d at 753; Trinity Industries Inc. v. Myers &

Associates, Ltd., 41 F.3d 229, 231 (5th Cir.), cert. denied, 516

U.S. 807 (1995); Bullion, 895 F.2d at 217; D.J. Investments, Inc.

v. Metzeler Motorcycle Tire Agent Gregg, Inc., 754 F.2d 542, 547

(5th Cir. 1985); DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1270-

71 (5th Cir. 1983); Brown, 688 F.2d at 1333; Simon v. United States,

644 F.2d 490, 499 (5th Cir. 1981); Wilkerson v. Fortuna Corp., 554

F.2d 745, 748 (5th Cir.), cert. denied, 434 U.S. 939 (1977); Jetco

Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1233-34 (5th

Cir. 1973), abrogated on other grounds by U.S. v. Cooper, 135 F.3d

960 (5th Cir. 1998); Elkhart Engineering Corp. v. Dornier Werke,

343 F.2d 861, 866-67 (5th Cir. 1965); Calagaz v. Calhoon, 309 F.2d

248, 256-57 (5th Cir. 1962); See 4 Wright & Miller, §1069; Reese &

Galston, Doing an Act or Causing Consequences as Bases of Judicial
17

Jurisdiction, 44 Iowa L. Rev. 249 (1959). Even an act done outside

the state that has consequences or effects within the state will

suffice as a basis for jurisdiction in a suit arising from those

consequences if the effects are seriously harmful and were intended

or highly likely to follow from the nonresident defendant’s

conduct. See Calder v. Jones, 465 U.S. 783, 789-90 (1984); Bullion,

895 F.2d at 217; Brown, 688 F.2d at 1333; Simon, 644 F.2d at 499;

See 4 Wright & Miller, §1069.

In Calder v. Jones, supra, the Supreme Court upheld personal

jurisdiction over a reporter and editor, who had written and

approved an article in Florida, in a California libel suit brought

by a California plaintiff. The Court held that the defendants’

activities, knowing that the article involved a California resident

and that it would be distributed there, brought them within the

jurisdiction of the court because they knowingly had engaged in

tortious activity outside the state that had an effect in the forum

state. Id. at 790; See 4 Wright & Miller, §1067. The Supreme Court

emphasized that the Florida journalists had intentionally aimed

their economic and emotionally harmful conduct at the California

resident:

[P]etitioners are not charged with mere untargeted

negligence. Rather, their intentional, and allegedly

tortious, actions were expressly aimed at California.

Petitioner South wrote and petitioner Calder edited an

article that they knew would have a potentially

devastating impact upon respondent. And they knew that
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the brunt of that injury would be felt by respondent in

the State in which she lives and works and in which the

National Enquirer has its largest circulation. Under the

circumstances, petitioners must “reasonably anticipate

being haled into court there” to answer for the truth of

the statements made in their article. An individual

injured in California need not go to Florida to seek

redress from persons who, though remaining in Florida,

knowingly cause the injury in California. 

. . . .

We hold that jurisdiction over petitioners in

California is proper because of their intentional conduct

in Florida calculated to cause injury to respondent in

California.

Id. at 789-91 (internal citations omitted).

This Court of Appeals and the Seventh Circuit have recognized

that “[t]he Supreme Court did not intend the Calder ‘effects’ test

to apply only to libel cases.” Allred, 117 F.3d at 286-87 (quoting

Wallace v. Herron, 778 F.2d 391, 395 (7th Cir. 1985), cert. denied,

475 U.S. 1122 (1986)). The Allred and Wallace courts concluded

that, under the particular circumstances of the case, a nonresident

defendant’s intentional act of causing process to be served by mail

on a plaintiff in his home forum state was insufficient as a

“minimum contact” for purposes of jurisdiction. “[In Calder,] the

‘effects’ of the intentional tort of libel in the forum state

(i.e., the plaintiff’s residence) are perhaps more pronounced than

the ‘effects’ of most other intentional torts.” Allred, 117 F.3d at

287 (quoting Wallace, 778 F.2d at 395 (internal quotations
19

omitted)). We conclude, therefore, and believe it was implicit in

the Allred and Wallace decisions, that the “effects” of

intentional and nonintentional torts causing death or serious

physical harm are as “pronounced” as the merely economic and

emotional consequences of libel. Thus, under Calder, the effects

of torts committed outside the forum state that cause death or

serious physical harm may also serve as minimum contacts with the

forum for purposes of personal jurisdiction. See Restatement

(Second) of Conflict of Laws, § 37 and cmt. e (1988 Revision).

That a state has power to exercise judicial jurisdiction over

an individual who causes effects in the state by an intentional or

physically harmful tort done elsewhere, with respect to any claim

arising from these effects, has been recognized by the American Law

Institute, Restatement (Second) of Conflict of Laws, § 37. In

pertinent part, Comment e. of Section 37, states: “When the act was

done with the intention of causing the particular effects in the

state, the state is likely to have judicial jurisdiction though the

defendant had no other contact with the state. This will almost

surely be so when the effect involves injury to person or damage to

tangible property.” Id. at 54 and 57 (1988 Revision). That, under

certain circumstances, the state is likely to have judicial

jurisdiction even when the defendant did not intend to cause the

particular effect in the state but could reasonably have foreseen

that it would result from his act done outside the state, is

recognized by the Restatement as follows: 
20

The fact that the effect in the state was only

foreseeable will not of itself suffice to give the state

judicial jurisdiction over the defendant. Judicial

jurisdiction is likely to exist in such a case, however,

if it was somewhat more than merely foreseeable that the

defendant’s act would cause the particular effect in the

state. . . . Jurisdiction will also exist when, in

addition to the effect being foreseeable, the defendant

has other relationships with the state. 

Id.,at 55, 58.(citing, inter alia, Eyerly Aircraft Co. v. Killian,

414 F.2d 591, 597-98 (5th Cir. 1969)).

In the present case, the plaintiffs have made a prima facie

showing that the tobacco trade association defendants had

sufficient minimum contacts with the state of Louisiana and that

plaintiffs’ causes of action arose out of these minimum contacts so

as to permit the State to exercise personal jurisdiction over those

defendants with respect to this lawsuit. The trade associations

are not charged with mere untargeted negligence endangering only

economic or reputational interests. Rather, their alleged

intentional and negligent tortious actions were knowingly initiated

and aimed at users and potential consumers of tobacco products in

Louisiana, including Charles Guidry. Each defendant made false

misrepresentations of facts that it knew would have a potentially

devastating physically harmful impact on Charles Guidry and other

Louisiana residents. And each defendant knew that the brunt of

that injury would be felt by the plaintiffs, as well as other

citizens and public and private entities, in the state in which
21

they live. “Under the circumstances, [the tobacco trade

association defendants] must ‘reasonably anticipate being haled

into court there’ to answer for” the offenses and quasi-offenses

they allegedly committed. Calder, 465 U.S. at 789-90 (citing

World-Wide Volkswagen Corp., 444 U.S. at 297; Kulko v. Superior

Court, 436 U.S. 84, 97-98 (1978); Shaffer, 433 U.S. at 216). An

individual injured in Louisiana need not go to New York, Delaware,

or Washington, D.C. to seek redress from persons who, though

remaining in other states, intentionally, knowingly and recklessly

caused severe physical, emotional and economic injuries to the

plaintiffs and others in Louisiana. Sufficient minimum contacts

with Louisiana were made by defendants in the course of their

alleged torts to make jurisdiction over the tobacco trade

associations proper in Louisiana. 

Once it has been decided that a defendant purposefully

established such minimum contacts within the forum state, the

defendant “must present a compelling case that the presence of some

other considerations would render jurisdiction unreasonable.”

Gundle Lining Construction Corp. v. Adams County Asphalt, Inc,, 85

F.3d 201, 207 (5th Cir. 1996)(quoting Burger King Corp., 471 U.S.,

at 477). When determining the fundamental fairness issue this

court will normally examine (1) the defendant’s burden; (2) the

forum state’s interests; (3) the plaintiff’s interest in convenient

and effective relief; (4) the judicial system’s interest in

efficient resolution of controversies; and (5) the shared interest
22

of the several states in furthering fundamental substantive social

policies. Gundle Lining Construction Corp., 85 F.3d at 207 (citing

Asahi Metal Industry Co., Ltd. v. Superior Court, 480 U.S. 102, 113

(1987); World-Wide Volkswagen Corp. 444 U.S. at 292).

In attempting to overcome the prima facie case that

jurisdiction is reasonable, the defendant may present evidence and

argument as to certain considerations that the Supreme Court has

indicated are relevant in deciding whether maintenance of a suit

comports with traditional notions of fair play and substantial

justice. The relationship between the defendant and the forum must

be such that it is reasonable to require the defendant to defend

the particular suit which is brought there. International Shoe

Co., 326 U.S. at 317. Implicit in this emphasis on reasonableness

is the understanding that the burden on the defendant, while always

a primary concern, will in an appropriate case be considered in

light of other relevant factors, including the forum state’s

interest in adjudicating the dispute, the plaintiff’s interest in

obtaining convenient and effective relief, at least where that

interest is not adequately protected by the plaintiff’s power to

choose the forum, the interstate judicial system’s interest in

obtaining the most efficient resolution of controversies, and the

shared interest of the several states in furthering fundamental

substantive social policies. Asahi Metal Industry Co. Ltd., 480

U.S. at 113; Burger King Corp., 471 U.S. at 476-77; World-Wide

Volkswagen, 444 U.S. at 292. These considerations sometimes serve
23

to establish the reasonableness of jurisdiction upon a lesser

showing of minimum contacts than would otherwise be required.

Burger King Corp., 471 U.S. at 477; Madara v. Hall, 916 F.2d 1510,

1519 (11th Cir. 1990).

The trade association defendants have not made any showing

that litigating this matter in Louisiana presents an unreasonable

burden on them. The State of Louisiana has a substantial interest

in the litigation of these claims against foreign defendants who

allegedly committed intentional and tortious acts directed at

Louisiana that caused addiction to tobacco products and cancer in

Charles Guidry, thereby inflicting serious personal injuries on the

plaintiffs. Obviously the Guidrys have a strong interest in

obtaining the convenient and efficient relief that can only be

provided by a single lawsuit in their domicile against all

defendants allegedly liable for the indivisible injuries the

plaintiffs have suffered. Moreover, the judicial system’s concerns

for the efficient resolution of controversies preponderates in

favor of a single litigation inclusive of all defendants whose

allegedly intentional and tortious acts have coalesced to injure

the plaintiffs. In short, the exercise of in personam jurisdiction

by the federal district court sitting in Louisiana, as far as can

be determined at this stage of the litigation, is reasonable and

comports with due process.

Accordingly, we need not consider or decide the complex issues

of whether the plaintiffs made a prima facie showing that each of
24

the tobacco trade associations also had sufficient minimum contacts

with Louisiana because it conspired with one or more tobacco

manufacturer defendants to commit an intentional or willful act in,

or that such act had sufficient effects in, Louisiana, and that the

commission of that act caused damage to the plaintiffs in

Louisiana. In case the district court is confronted with these

issues again, however, we call its attention to several basic

principles of law that appear to be relevant but that were either

overlooked or misunderstood by the district court in its memorandum

ruling.

The governing substantive Louisiana law principles are set

forth by La. Civil Code art. 2324(A), which provides: “He who

conspires with another to commit an intentional or willful act is

answerable, in solido, with that person, for the damage caused by

such an act.” For assistance in determining the Louisiana courts’

interpretation of this provision see the discussion and citations

of the state cases in Frank L. Maraist and Thomas C. Galligan,

Louisiana Tort Law, § 2-5 (1996).

The pleadings in a civil action for conspiracy must comply

with the general requirement in Federal Rule of Civil Procedure 8

that the complaint contain a direct, simple, and concise statement

that demonstrates the pleader is entitled to relief. See 5 Wright

& Miller, § 1233 (citing Arnold v. Board of Educ. Of Escambia

County, Ala., 880 F.2d 305, 309 (11th Cir. 1989); Burns v. Spiller,

161 F.2d 377, 377 (D.C. Cir.), cert. denied, 332 U.S. 792 (1947)).
25

However, “a general allegation of conspiracy without a statement of

the facts constituting that conspiracy, is only an allegation of a

legal conclusion and is insufficient to constitute a cause of

action.” McCleneghan v. Union Stock Yards Co., 298 F.2d 659, 663

(8th Cir. 1962)(Blackmun, J.); See also 5 Wright & Miller, § 1233

(citing other authorities to the same effect).

When a party asserts a claim in an action for civil

conspiracy, “pleading of the evidence is surely not required and is

on the whole undesirable.” Nagler v. Admiral Corp., 248 F.2d 319,

326 (2d Cir. 1957)(Clark, C.J.); See 5 Wright & Miller, §§ 1221 and

1233. “The courts have recognized that the nature of conspiracies

often makes it impossible to provide details at the pleading stage

and that the pleader should be allowed to resort to the discovery

process and not be subjected to a dismissal of his complaint.” 5

Wright & Miller, § 1233, at 257 (citing authorities). But the

complaint must contain sufficient information to show that a valid

claim for relief has been stated and to enable the opponent to

prepare adequate responsive pleadings. Id.

Federal Rule of Civil Procedure 84 provides: “The forms

contained in the Appendix of Forms are sufficient under the rules

and are intended to indicate the simplicity and brevity of

statement which the rules contemplate.” See 12 Wright & Miller, §

3161, at 548 (“Most of the forms are exceedingly short and general

in their allegations. They deserve careful study for they indicate

much better than do the bare words of the rules the revolution in
26

procedure that the rules were intended to accomplish. . . .

Pleadings similar to the Official Forms inform the adversary of the

claim or defense asserted with sufficient particularity to enable

it to prepare a responsive pleading and the discovery and pretrial

rules amply protect the parties from surprise.”). As distinguished

from conspiracy, Rule 9(b) expressly requires that “the

circumstances constituting fraud or mistake shall be stated with

particularity.” Fed.R.Civ.P 9(b). However, Official Form 13

demonstrates that even fraud may be pleaded without long or highly

detailed particularity. 12A Wright & Miller, App. D Form 13

(“Defendant C.D. on or about______conveyed all his property, real

and personal [or specify and describe] to defendant E.F. for the

purpose of defrauding plaintiff and hindering and delaying the

collection of the indebtedness evidenced by the note above referred

to.”).

Contrary to the district court’s memorandum ruling, Thomas v.

Kadish, 748 S.2d 276 (5th Cir. 1984), did not control its decision

of whether the plaintiffs made a prima facie showing of minimum

contacts with Louisiana by each trade association defendant based

on its civil conspiracy with the tobacco manufacturers to commit an

intentional or willful act, which was carried out and resulted in

damage to the plaintiffs in the state. In that case, Thomas

brought suit under 42 U.S.C. §§ 1981, 1983, 1985, and 1986 against

various professors, administrators, and students associated with

his attendance at a California law school alleging that they
27

“‘conspired to create a record against him while he was in

California that would disqualify plaintiff from practicing law’ in

Texas . . . and . . . joined in a conspiracy with the Texas [Bar

Examiners]’to force plaintiff to drop his California suit’ against

them.” Id. at 282. This court concluded that neither the

“conclusory allegations of conspiracy by the California defendants

based upon their acts in California, nor the alleged effects of

this conspiracy in Texas, show a claim of sufficient minimum

contacts with Texas that would support personal jurisdiction of

Texas Courts against these defendants for their acts in

California.” Id. at 282 (citing Burnett v. Short, 441 F.2d 405, 406

(5th Cir. 1971)(a § 1985 conspiracy complaint dismissed for failure

to state a claim because “the complaint is devoid of any factual

allegations, which taken to be true, would support the requisite

element of conspiracy by the defendants”)). Thomas v. Kadish is a

simple case in which the complaint was devoid of factual

allegations. The plaintiff alleged no background facts whatsoever

in support of his bare allegations of two very unlikely

conspiracies, one between persons in California in 1977-1980 to

create a record against him to disqualify him from practicing law

in Texas in 1981, and another between the same California residents

and the Texas Bar Examiners to force him to drop his suit against

the California defendants. Although we intimate no opinion as to

the outcome, the Guidrys’ allegations, depositions and exhibits

present a considerable amount of detailed information in support of
3See also Black v. ACME Markets, Inc., 564 F.2d 681, 685-86 (5th

Cir. 1977) (personal jurisdiction and Texas long arm statute

reached nonresident corporation alleged to have conspired with codefendants to depress Texas beef prices and to have purchased $1.5

million of products originating in Texas in one year).

28

a less farfetched conspiracy scenario. Consequently, the present

case presents a dissimilar and more difficult problem for decision

that is not readily controlled by the easier no-factual allegation

case of Thomas v. Kadish.

3

III. Conclusion

For the reasons set forth, the judgment of the district court

dismissing the plaintiffs’ suit against the tobacco trade

association defendants for lack of personal jurisdiction is

REVERSED and the case is REMANDED to the district court for

further proceedings.