O'Berry v. ENSCO International, Inc et al, No. 2:2016cv03569 - Document 79 (E.D. La. 2017)

Court Description: ORDER AND REASONS denying in part 6 Motion to Dismiss to the extent it seeks dismissal of Plaintiff's claims pursuant to Rule 12(b)(1), Rule 12(b)(2) of the Federal Rules of Civil Procedure and forum non conveniens. IT IS FURTHER ORDERED that Plaintiff is granted leave to amend his complaint to address the arguments raised in ENSCO plc's Rule 12(b)(6) motion to dismiss on or before Thursday, March 30, 2017. Signed by Judge Susie Morgan on 3/20/2017. (cg)
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O'Berry v. ENSCO International, Inc et al Doc. 79 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A W ILLIS D . O’BERRY, Plain tiff CIVIL ACTION VERSU S N O. 16 -3 56 9 EN SCO IN TERN ATION AL, LLC, ET AL. D e fe n d an ts SECTION : “E” ( 1) ORD ER AN D REAS ON S Before the Court is a Motion to Dism iss filed by Defendant ENSCO plc. 1 Plaintiff opposes ENSCO plc’s m otion. 2 BACKGROU N D On April 21, 20 16, Plaintiff, Willis D. O’Berry, filed his Seam an Com plaint against ENSCO International, Inc. and ENSCO plc. 3 On Novem ber 9, 20 16, Plaintiff filed his first am ended com plaint additionally nam ing ENSCO Lim ited and ENSCO Inc. as Defendants. 4 Plaintiff alleges that on or about March 17, 20 15, he was a m andatory participant in a water survival training course required by Defendants and taught by their agent, SMTC Global. 5 This course, which Plaintiff concedes was taught ashore, included participating in an at-sea escape from a downed helicopter and boarding life rafts. 6 1 R. Doc. 6. The Motion to Dism iss was originally filed by Defendants ENSCO Intern ational, Inc. and ENSCO plc. See id. On March 13, 20 17, the Court granted Plaintiff’s Consent Motion to Dism iss ENSCO International, Inc. without prejudice. R. Doc. 77. As a result, Record Docum ent 6 only pertains to ENSCO plc. 2 R. Docs. 11, 30 , 52, 61. 3 R. Doc. 1. 4 R. Doc. 36. ENSCO International, Inc. and ENSCO Inc. were voluntarily dism issed. R. Doc. 77. The rem ain in g Defendants are ENSCO Lim ited and ENSCO plc. ENSCO lim ited filed an answer and does not contest jurisdiction . R. Doc. 62. 5 R. Doc. 36, at 3-4. 6 R. Doc. 1, at 1. 1 Dockets.Justia.com Plaintiff, who was then sixty-two years old, alleges he had great difficulty getting out of the helicopter and into a life raft. 7 Plaintiff alleges that, because of his age, he should have been but was not m edically cleared for such arduous physical activity. 8 Plaintiff alleges that while struggling to clim b into a life raft from the water, he was injured when he was grabbed at the neck by fellow participants and was roughly hauled aboard the raft. 9 Plaintiff alleges that, as a result, he suffered serious cervical neck injuries for which a lum bar fusion operation was required. 10 Plaintiff alleges he has not been paid m aintenance and cure. 11 On J une 28, 20 16, Defendant ENSCO plc filed a Rule 12 Motion to Dism iss. 12 ENSCO plc argues this Court lacks subject m atter jurisdiction “as the alleged claim s are neither subject to adm iralty jurisdiction nor federal question jurisdiction given that U.S. law does not apply and the alleged incident took place onshore in Saudi Arabia.”13 In addition, ENSCO plc argues, “this Court lacks personal jurisdiction over the ENSCO entities as the acciden t occurred overseas and only involves foreign parties who lack sufficient m inim um contacts with the United States.”14 Next, ENSCO plc argues, “For sim ilar reasons, this case should also be dism issed on forum non conveniens grounds as it would be an undue burden to force the defendants to litigate this suit in the United States when all the activities and witnesses are located abroad.”15 Finally, ENSCO plc argues the Plaintiff’s J ones Act claim s against it are also subject to dism issal on 12(b)(6) 7 R. Doc. 36, at 3. Id. at 4 9 Id. 10 Id. 11 Id. 12 R. Doc. 6. 13 Id. at 1. 14 Id. 15 Id. 8 2 grounds considering the Plaintiff was never em ployed by ENSCO plc, but rather, was em ployed by a separate and distin ct Caym an corporation, ENSCO Lim ited. 16 Plaintiff opposed this m otion on J uly 19, 20 16. 17 Shortly thereafter, ENSCO plc filed a supplem ental brief in support of its Rule 12 m otion on J uly 26, 20 16. 18 Following the initial filing of the m otion to dism iss, the Court granted oral argum ent 19 which was subsequently cancelled to allow the parties tim e to conduct jurisdictional discovery. 20 After conducting jurisdictional discovery, Plaintiff filed a supplem ental m em orandum in opposition on October 27, 20 15. 21 As discussed above, Plaintiff filed his am ended com plaint on Novem ber 9, 20 16 nam ing ENSCO Lim ited an d ENSCO Inc. as Defendants. 22 On Novem ber 17, 20 16, ENSCO plc filed its secon d supplem ental brief in support of its m otion to dism iss. 23 On Novem ber 21, 20 16, the Court ordered the Defendants to file a separate m em orandum clarifying whether general personal jurisdiction exists in any jurisdiction in the United States over any of the nam ed Defendants in this action. 24 On Novem ber 22, 20 16, the Court granted Plaintiff leave to file his response to Defendant’s second supplem ental brief. 25 On Novem ber 28 , 20 16, Defendants filed their brief in response to the Court’s order. 26 In response, on Decem ber 2, 20 16, Plaintiff filed a m em orandum in opposition. 27 On J anuary 23, 20 17, Plaintiff filed his Supplem ental Mem orandum Regarding 16 Id. at 2. R. Doc. 11. 18 R. Doc. 14. 19 R. Doc. 10 . 20 R. Doc. 15. 21 R. Doc. 22 R. Doc. 36. 23 R. Doc. 43. 24 R. Doc. 46. 25 R. Doc. 49. 26 R. Doc. 51. 27 R. Doc. 52. 17 3 J urisdiction Over the Individual Defendants. 28 On J anuary 31, 20 17, the Court granted ENSCO plc leave to file its Third Supplem ental Mem orandum in support of its Motion to Dism iss. 29 On March 13, 20 17, the Court granted Plaintiff’s ex parte Motion to Dism iss Defendants Ensco International, Inc. and Ensco Inc. without prejudice. 30 LEGAL STAN D ARD I. Rule 12(b)(1) Federal courts are courts of lim ited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claim s.”31 A m otion to dism iss under Federal Rules of Civil Procedure 12(b)(1) challenges a federal court’s subject-m atter jurisdiction. 32 Under Rule 12(b)(1), “[a] case is properly dism issed for lack of subject m atter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.”33 “Lack of subject-m atter jurisdiction m ay be found in the com plaint alone, the com plaint supplem ented by the undisputed facts as evidenced in the record, or the com plaint supplem ented by the undisputed facts plus the court’s resolution of the disputed facts.”34 “When, as here, grounds for dism issal m ay exist under both Rule 12(b)(1) and Rule 12(b)(6), the Court should, if necessary, dism iss only under the form er without reaching the question of failure to state a claim .”35 28 R. Doc. 61. R. Doc. 68. 30 R. Doc. 77. 31 In re FEMA Trailer Form aldehy de Products Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 286 (5th Cir. 20 12). 32 See Fed. R. Civ. P. 12(b)(1). 33 Hom e Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 10 0 6, 10 10 (5th Cir. 1998) (internal quotation m arks and citation om itted). 34 In re FEMA, 668 F.3d at 287. 35 Valdery v. Louisiana W orkforce Com m ’n, No. CIV.A. 15-0 1547, 20 15 WL 530 7390 , at *1 (E.D. La. Sept. 10 , 20 15). 29 4 II. Rule 12(b)(2) “Personal jurisdiction ‘is an essential elem ent of the jurisdiction of a district court, without which it is powerless to proceed to an adjudication.’”36 When a non-resident defendant challenges personal jurisdiction in a m otion to dism iss, the plaintiff bears the burden of proving that personal jurisdiction exists. 37 If the district court rules on the m otion without an evidentiary hearing, as in this case, the plaintiff need only m ake a prim a facie showing of personal jurisdiction. 38 In determ in ing whether the plaintiff has m ade a prim a facie showing of personal jurisdiction, the district court m ust take the allegations of the com plaint as true, except as controverted by opposing affidavits, and all conflicts in the facts m ust be resolved in favor of plaintiffs. 39 Thus, the district court m ay consider m atters outside the com plaint, including affidavits, when determ ining whether personal jurisdiction exists. 40 To exercise personal jurisdiction over a non-resident defendant, two requirem ents m ust be satisfied. “First, the forum state’s long-arm statute must confer personal jurisdiction. Second, the exercise of jurisdiction m ust not exceed the boundaries of the Due Process Clause of the Fourteenth Am endm ent.”41 Because Louisiana’s long-arm statute confers personal jurisdiction to the lim its of constitutional due process, these two inquiries becom e one and the sam e. 42 36 Anderson v . GlobalSantaFe Offshore Services, Inc., 924 F. Supp. 2d 738 , 742 (E.D. La. 20 13) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). 37 Luv N ’ Care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 20 0 6) (citin g W y att v. Kaplan, 686 F.2d 276, 28 0 (5th Cir. 1982)). 38 See id. 39 Id. See also Thom pson v. Chry sler Motors Corp., 755 F.2d 1162, 1165 (5th Cir. 1985). 40 Jobe v. ATR Mktg., Inc., 8 7 F.3d 751, 753 (5th Cir. 1996). 41 Seiferth v. H elicopteros Atuneros, Inc., 472 F.3d 266, 270 (5th Cir. 20 0 6) (citation om itted). 42 Luv N ’ Care, 438 F.3d at 469; La. R.S. 13:320 1(B). 5 The Due Process Clause of the Fourteenth Am endm ent “operates to lim it the power of a State to assert in personam jurisdiction over a nonresident defendant.”43 For a court’s exercise of personal jurisdiction over a non-resident defen dant to be constitutional under the Due Process Clause, (1) “that defendant [m ust have] purposefully availed him self of the benefits and protections of the forum state by establishing ‘m inim um contacts’ with the forum state; and (2) the exercise of jurisdiction over that defendant [m ust] not offend ‘traditional notions of fair play and substantial justice.’”44 The “m inim um contacts” test takes two form s, depending on the type of jurisdiction the court seeks to exercise over the defen dant: gen eral jurisdiction or specific jurisdiction. In addition, the Federal Rules of Civil Procedure provide for a third form of personal jurisdiction in cases arising under federal law known as Rule 4(k)(2) jurisdiction. III. Rule 12(b)(6) Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court m ay dism iss a com plaint, or any part of it, for failure to state a claim upon which relief m ay be granted if the plaintiff has not set forth factual allegations in support of his claim that would entitle him to relief. 45 “To survive a m otion to dism iss, a com plaint m ust contain sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”46 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct 43 Helicopteros N acionales de Colom bia, S.A. v . Hall, 466 U.S. 40 8, 413– 14 (1984). Latshaw v. Johnston, 167 F.3d 20 8, 211 (5th Cir. 1999) (citation om itted). 45 Bell Atl. Corp. v . Tw om bly , 550 U.S. 544, 555 (20 0 7); Cuvillier v. Tay lor, 50 3 F.3d 397, 40 1 (5th Cir. 20 0 7). 46 Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quotin g Tw om bly , 550 U.S. at 570 ). 44 6 alleged.”47 The court, however, does not accept as true legal conclusions or m ere conclusory statem ents, and “conclusory allegations or legal conclusions m asquerading as factual conclusions will not suffice to prevent a m otion to dism iss.”48 “[T]hreadbare recitals of elem ents of a cause of action, supported by m ere conclusory statem ents” or “naked assertion[s] devoid of further factual enhancem ent” are not sufficient. 49 In sum m ary, “[f]actual allegations m ust be enough to raise a right to relief above the speculative level.”50 “[W]here the well-pleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged—but it has not show[n]’—that the pleader is entitled to relief.”51 “Dism issal is appropriate when the com plaint ‘on its face show[s] a bar to relief.’”52 AN ALYSIS I. Subject-Matter J urisdiction In his Am ended Com plaint, Plaintiff asserts this Court has subject-m atter jurisdiction under the following: (1) 28 U.S.C. § 1331 federal question jurisdiction because Plaintiff asserts a claim pursuant to the J ones Act, 46 U.S.C. § 30 10 4, et seq.; (2) alternatively, diversity jurisdiction, pursuant to 28 U.S.C. § 1332 (a)(1) and (2) because the m atter in controversy here exceeds the sum or value of $ 75,0 0 0 , exclusive of interests and costs, and is between citizens of different States and/ or citizens of a foreign state; and 47 Id. S. Christian Leadership Conference v. Suprem e Court of the State of La., 252 F.3d 781, 78 6 (5th Cir. 20 0 1) (citing Fernandez-M ontes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)). 49 Iqbal, 556 U.S. at 663, 678 (citations om itted). 50 Tw om bly , 550 U.S. at 555. 51 Id. (quotin g Fed. R. Civ. P. 8(a)(2)). 52 Cutrer v. McMillan, 30 8 F. App’x 819, 8 20 (5th Cir. 20 0 9) (per curiam ) (quotation s om itted). 48 7 (3) alternatively, pursuant to 28 U.S.C. § 1333 original jurisdiction because Plaintiff asserts a General Maritim e law claim for m aintenance and cure. 53 a. Does the Court Have Federal Question J urisdiction Pursuant to 28 U.S.C. § 1331? In his am ended com plaint, Plaintiff alleges this Court has federal question subject m atter jurisdiction pursuant to 28 U.S.C. § 1331 as a result of his claim under the J ones Act, 46 U.S.C. § 30 10 4, et seq. 54 A claim under the J ones Act is a federal question. 55 To establish federal question jurisdiction, a plaintiff m ust allege a colorable J ones Act claim . 56 In order to allege a colorable J ones Act claim , a plaintiff m ust allege (1) he was em ployed as a seam an connected to a vessel; (2) he was injured in the course of his em ploym ent; and (3) his em ployer’s negligence caused his injury. 57 First, it does not appear that there is any dispute that the Plaintiff was em ployed as a seam an connected to a vessel. Defen dants do not raise the issue in their m otion to dism iss, and it is stated that Mr. O’Berry was em ployed on the EN SCO 88, “a Liberianflagged vessel.”58 “The test for seam an status under the J ones Act is well established in this circuit.”59 The worker claim ing such status m ust establish (1) that he was assigned perm anently to, or perform s a substantial part of his work on, (2) a vessel in navigation 53 R. Doc. 36, at 2. Id. 55 1 THOMAS J . SCHOENBAUM , ADMIRALTY AND M ARITIME LAW § 6-20 (5th ed. 20 11) (internal citations om itted). ENSCO plc argues there is no federal question jurisdiction for this J ones Act claim because it is clear that United States law will not govern this case. See R. Doc. 6-1, at 4. ENSCO plc’s argum ent is based on a choice of law analysis which is part of the in quiry for dism issal pursuant to forum non conveniens, discussed below, and not subject-m atter jurisdiction. See Robichaux v. Sunland Const., Inc., 20 0 2 WL 31741211 (E.D. La. Dec. 5, 20 0 2); W arn v. M/ Y Maridom e, 169 F.3d 625 (9th Cir. 1999); Hallow ay v . Pagan River Dockside Seafood, In c., 669 F.3d 448, 452 (4th Cir. 20 12). 56 See, e.g., Hallow ay , 669 F.3d at 448. 57 See, e.g., id. 58 R. Doc. 6-1, at 17. (em phasis added). 59 Sm ith v. Odom Offshore Survey s, Inc., 791 F.2d 411, 415 (1986) 54 8 and (3) that the capacity in which he is em ployed, or the duty which he perform s, contributes to the function of the vessel or the accom plishm ent of its m ission. 60 Second, whether or not Mr. O’Berry was injured in the course of his em ploym ent is disputed but Plaintiff does allege he was injured during his participation “in a helicopter underwater evacuation training course required as a condition of his em ploym ent.”61 “A seam an does not lose his status because he is tem porarily assign ed by his em ployer to duties off his vessel.”62 Third, Plaintiff alleges he sustained his injury as a result of the negligence of SMTC, his em ployer’s agent. He claim s that despite his age, he had not been m edically cleared for such arduous physical training and that his injury occurred when he was carelessly and roughly grabbed by the neck by an SMTC em ployee. 63 A J ones Act em ployer can be held liable for the acts of its agent. 64 Whether or not Plaintiff’s claim s are supported by the facts is not the inquiry when determ ining subject m atter jurisdiction. 65 A federal court has subject m atter jurisdiction over a J ones Act claim so long as the plaintiff has properly “alleged each of the elem ents.”66 The Plaintiff has alleged a colorable J ones Act claim and the Court has subject-m atter jurisdiction over his J ones Act claim . As the Court has determ in ed it has 60 See Barrett v. Chevron , U.S.A., 781 F.2d 10 67, 10 72-73 (5th Cir. 1986). Doc. 36, at 3. 62 Sm ith, 791 F.2d at 415 (citing Guidry v. South Louisiana Contractors, Inc., 614 F.2d 337, 453 (5th Cir. 1980 ) (“[H]ow lon g a seam an’s status continues after a shoreside assignm ent is itself a fact question dependent on such factors as the duration of the assignm ent, its relationship to the em ployer’s busin ess, whether the em ployee was free to accept or reject it without endan gering his em ploym ent status and any other factors relevant to the ultim ate inquiry.”). See also N unez v. Offshore Marine Contractors, Inc., 20 13 WL 1210 6126 (S.D. Tex. Dec. 9, 20 13) (denying defendant’s m otion for sum m ary judgem ent regarding one of plaintiff’s J ones Act claim s related to an injury that occurring during a trainin g exercise.). 63 R. Doc. 36, at 3. 64 See Hasty v. Trans Atlas Boats, Inc., 389 F.3d 510 , 513 (5th Cir. 20 0 4) (citations om itted). 65 See Hollow ay , 669 F.3d 448. 66 See id. at 453. 61 R. 9 federal question subject-m atter jurisdiction over Plaintiff’s J ones Act claim , the Court need not determ ine Plaintiff’s alternatively alleged sources of subject-m atter jurisdiction. II. Does the Court Have Personal J urisdiction Over ENSCO plc? ENSCO plc argues this suit should be dism issed pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure due to lack of personal jurisdiction. On J uly 26, 20 16, the Court cancelled the scheduled oral argum ent regarding ENSCO plc’s m otion to dism iss and granted the parties leave of court to conduct jurisdictional discovery. The Court also ordered the Plaintiff to file a supplem ental m em orandum in response to the ENSCO plc’s m otion to dism iss by Wednesday, October 26, 20 16. In his supplem ental m em orandum , Plaintiff argues the Court has general and specific personal jurisdiction over ENSCO plc and alternatively, personal jurisdiction pursuant to 4(k)(2) and (3) of the Federal Rules of Civil Procedure. According to ENSCO plc, it is a foreign corporation established and operating under the laws of the United Kingdom . 67 ENSCO plc serves as a holding and parent com pany. 68 “It has no em ployees but various em ployees on other payroll com panies in the Eastern and Western Hem ispheres served as officers for the com pany.”69 a. The Court Does Not Have General J urisdiction Over ENSCO Plc A court m ay exercise general jurisdiction over a non-resident defendant when that defendant’s contacts with the forum state are “continuous and system atic,” regardless of whether such contacts are related to the plaintiff’s cause of action. 70 Stated differently, “[g]eneral jurisdiction will attach, even if the act or transaction sued upon is unrelated to 67 R. Doc. 6-1, at 2. R. Doc. 51, at 2. 69 Id. 70 Id. (citing Helicopteros, 466 U.S. at 413– 14). 68 10 the defendant’s contacts with the forum state, if the defendant has engaged in ‘continuous and system atic’ activities in the forum state.”71 In Goody ear Dunlop Tires Operations, S.A. v. Brow n, the Suprem e Court explained, “for an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s dom icile; for a corporation it is an equivalent place, one in which the corporation is fairly regarded as at hom e.”72 That is, the corporation m ust have substantial, continuous, and system atic contacts with the forum state so as to “render [it] essentially at hom e in the forum state.”73 “It is, therefore, incredibly difficult to establish general jurisdiction in a forum other than the place of incorporation or principal place of business.”74 As stated above, it is generally “in credibly difficult to establish gen eral jurisdiction in a forum other than the place of incorporation or principal place of business.”75 Plaintiff has put forward a Daily Drilling Report dated J uly 30 , 20 13 in his response to ENSCO plc’s second supplem ental brief in support of its Rule 12 m otion to dism iss. 76 This report identifies “Ensco plc” as the Contractor of Rig No. 850 6 located in the De Soto Canyon which Plaintiff alleges is in the waters of the Eastern District of Louisiana. 77 According to Plaintiff, “Obviously, this daily drilling report evidences ongoing, day-to-day, long term petroleum exploration activity in the waters of the Eastern District. This is a system atic business contact with Louisiana and the Eastern District. No other interpretation is rationally possible.”78 71 721 Bourbon, Inc. v . House of Auth, LLC, 140 F. Supp. 3d 586, 592 (E.D. La. 20 15) (citations om itted). 564 U.S. 915, 924 (20 11). 73 Daim ler AG v . Baum an , 134 S. Ct. 746, 754 (20 14) (citing Goody ear, 564 U.S. 915). 74 Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 432 (5th Cir. 20 14) (citin g Daim ler AG, 134 S. Ct. at 760 ; Helicopteros, 466 U.S. at 411– 12). 75 Monkton Ins. Servs., Ltd., 768 F.3d at 432 (citin g Daim ler AG, 134 S. Ct. at 760 ; Helicopteros, 466 U.S. at 411– 12). 76 R. Doc. 49-3. 77 R. Doc. 49, at 2. 78 Id. 72 11 To m ake a prim a facie showing of general jurisdiction, Plaintiff m ust produce eviden ce that affirm atively shows that ENSCO plc’s contacts with Louisiana are sufficient to satisfy due process requirem ents. 79 ENSCO plc’s unrelated contacts m ust be so substantial, continuous and system atic so as to render it essentially at hom e in Louisiana. 80 Even assum ing the allegations related to the drilling report are true, ENSCO plc has not presented a prim a facie showing that Louisiana is a place “in which [Ensco plc] is fairly regarded as hom e.”81 Given the high threshold required to show that general jurisdiction exists over a defen dant in a forum other than its place of incorporation or its principal place of business, the Court finds the Plaintiff has failed to m ake a prim a facie showing of general jurisdiction. As a result, the Court does not have general jurisdiction over ENSCO plc. b. The Court Does Not Have Specific J urisdiction Over ENSCO plc When the defendant’s contacts are less pervasive, a court m ay exercise specific jurisdiction over a non-resident defendant “in a suit arising out of or related to the defendant’s contacts with the forum .”82 Specific jurisdiction exists, for exam ple, where a non-resident defendant “has ‘purposefully directed its activities at the forum state and the litigation results from alleged injuries that arise out of or relate to those activities.’”83 Specific jurisdiction also exists where a non-resident defendant “purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits 79 See Alpine View Co. Ltd. v. Atlas Copco AB, 20 5 F.3d 20 8 , 217 (5th Cir. 20 0 0 ) (citations om itted). See Id. (citations om itted); Daim ler AG, 134 S. Ct. at 760 . 81 See Anderson , 924 F. Supp. 2d at 744 (quotin g Goody ear, 564 U.S. at 922-23). 82 Luv N ’ Care, 438 F.3d at 469. 83 Panda Brandy w ine Corp. v. Potom ac Elec. Pow er Co., 253 F.3d 8 65, 868 (5th Cir. 20 0 1) (quoting Alphine View Co. v . Atlas Copco A.B., 20 5 F.3d 20 8 , 215 (5th Cir. 20 0 0 )). 80 12 and protections of its laws.”84 “The non-resident’s ‘purposeful availm ent’ m ust be such that the defendant ‘should reasonably anticipate being haled into court’ in the forum state.”85 The Fifth Circuit established a three-factor analysis to guide courts in assessing the presen ce of specific personal jurisdiction: (1) whether the defendant has m inim um contacts with the forum state, i.e., whether it purposely directed its activities toward the forum state or purposely availed itself of the privileges of conducting activities there; (2) whether the plaintiff's cause of action arises out of or results from the defendant's forum -related contacts; and (3) whether the exercise of personal jurisdiction is fair and reasonable. 86 To m ake a prim a facie showing of specific personal jurisdiction, the plaintiff need only satisfy the first two factors. 87 “Although jurisdictional allegations m ust be accepted as true, such acceptan ce does not autom atically m ean that a prim a facie case for specific jurisdiction has been presented.”88 Establishing a prim a facie case still requires the plaintiff to show the nonresident defendant’s purposeful availm ent of the benefits and protections of and m inim um contacts with the forum state.”89 A district court need not credit con clusory allegations, even if uncontroverted. 90 A Plaintiff m ay be required to 84 Burger King Corp. v. Rudzew icz, 471 U.S. 462, 475 (1985) (citing Hanson v. Denckla, 357 U.S. 235, 253 (1958)). 85 Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 419 (5th Cir. 1993) (quoting W orld-W ide Volksw agen Corp. v. W oodson, 444 U.S. 286, 297 (198 0 )). 86 N uovo Pignone, SpA v. STORMAN ASIA M/ V, 310 F.3d 374, 378 (5th Cir. 20 0 2); Luv N ’ Care, 438 F.3d at 469. 87 Athletic Training Innovations, LLC v. eTagz, Inc., 955 F. Supp. 2d 60 2, 613 (E.D. La. 20 13). See also 721 Bourbon, 140 F. Supp. 3d at 592– 93; Luv N ’ Care, 438 F.3d at 469. If the plain tiff m akes a prim a facie showing, the burden of proof with respect to the third factor shifts to the defendant to “present a com pellin g case that the presence of som e other considerations would render jurisdiction unreasonable.” Autogenom ics, Inc. v. Oxford Gene Tech., 566 F.3d 10 12, 10 18 – 19 (Fed. Cir. 20 0 9). See also Athletic Training Innovations, supra, at 613. 88 Panda Brandy w ine Corp., 253 F.3d at 868 . 89 Id. (citing Burger King, 471 U.S. at 474 (“[T]he constitutional touchstone rem ains whether the defendant purposefully established ‘m inim um contacts’ in the forum State.”)). 90 Id. at 869 (citing Felch v. Transportes Lar-Mex, 92 F.3d 320 , 326 n .16 (5th Cir. 1996)). 13 produce eviden ce affirm atively dem onstratin g the defendant’s purposeful availm ent of the benefits and protections of and m in im um contacts with the forum state. 91 Although Plaintiff argues this Court has specific jurisdiction over ENSCO plc, Plaintiff does not allege that the injuries leading to this litigation occurred here. When that is the case, a court m ay have specific jurisdiction over a tort only if the plaintiff proves that his injuries arise out of or result from the defendant’s purposefully directed activities toward the forum state. 92 Plaintiff has failed to m ake a prim a facie showing of specific jurisdiction as he has not alleged any facts in any of his filings which dem onstrate that (1) ENSCO plc has m inim um contacts with Louisiana or purposefully availed itself of the privileges of conducting activities here or that (2) his cause of action arises out of or results from ENSCO plc’s Louisiana-related contacts. The Court finds it does not have specific jurisdiction over ENSCO plc in this m atter. c. The Court Has Rule 4(k)(2) J urisdiction Over ENSCO plc Federal Rule of Civil Procedure 4(k)(2) provides: For a claim that arises under federal law, serving a sum m ons or filing a waiver of service establishes personal jurisdiction over a defendant if: (A) the defendant is not subject to jurisdiction in any state’s court of general jurisdiction; and (B) exercising jurisdiction is consistent with the United States Constitution and laws. 93 The Rule was enacted to fill an im portant gap in the jurisdiction of federal courts in cases arising under federal law: 91 Id. (“Appellants’ sole evidence is their state court petition, which alleges ‘on inform ation and belief’ that Appellee knew Appellants are Texas residents and knew its actions would intentionally cause harm in Appellants in Texas. Appellants present no other evidence of Appellee’s contacts with Texas relatin g to Appellants’ claim s, and thus the district court properly concluded that the allegations are m erely conclusory.”). 92 Anderson, 924 F. Supp. 2d at 745 (citing Clark v. Moran Tow ing & Transp. Co., Inc., 738 F. Supp. 10 23 (E.D. La. 1990 )). 93 Fed. R. Civ. P. 4(k)(2). Service was m ade upon ENSCO plc through personal service on three of its Senior Vice Presidents. See R. Docs. 25, 26, 27. 14 Thus, there was a gap in the courts’ jurisdiction: while a defendant m ay have sufficient contacts with the United States as a whole to satisfy due process concerns, if she had insufficient contacts with any single state; she would not be am endable to service by a federal court sitting in that state . . . Rule 4(k)(2) was adopted in response to this problem of a gap in the courts’ jurisdiction . . . 94 “The Fifth Circuit has adopted the burden-shifting fram ework adopted by the United State Court of Appeals for the Seventh Circuit.”95 Under this fram ework: The Plaintiff m ust m ake a prim a facie case that the rule applies by “showing (1) that the claim asserted arises under federal law, (2) that personal jurisdiction is not available under any situation-specific federal statue, and (3) that the putative defendant’s contacts with the nation as a whole suffice to satisfy the applicable constitutional requirem ents. Additionally, the plaintiff m ust certify that, based on the inform ation that is readily available to the plaintiff and his counsel, the defendant is not subject to suit in the courts of general jurisdiction of any state. Once plaintiff has m ade a prim a facie case, then the burden shifts to the defendant to produce eviden ce that dem onstrates that it is subject to jurisdiction in another state and/ or that it has insufficient contacts with the United States as a whole. 96 The Fifth Circuit has concluded that cases falling under a federal court’s adm iralty jurisdiction are “claim [s] arising under federal law” for the purpose of Rule 4(k)(2). 97 Therefore, Rule 4(k)(2) applies in the presen t case if Plaintiff O’Berry can dem onstrate that “(1) the defendant in question is not subject to the general jurisdiction of any other state, and (2) that exercising jurisdiction is consistent with the due process clause of the Fifth Am endm ent, m eaning that the defendant has sufficient m inim um contacts with the United States as a whole.”98 “The Fifth Circuit has held that a ‘piecem eal analysis of the existen ce vel non of jurisdiction in all fifty states is not necessary. Rather, so long as a 94 Adam s v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 650 -51 (5th Cir. 20 0 4) (quoting W orld Tanker Carriers Corp. v . M/ V Ya Maw lay a, 99 F.3d 717, 721-22 (5th Cir. 1996)). 95 Johnson v. PPI Technology Services, L.P., 926 F. Supp. 2d 873, 88 2-83 (E.D. La. 20 13) (citing ISI Int’l Inc. v. Borden Ladner Gerv ais LLP, 226 F.3d 648 (7th Cir. 20 0 1)). 96 Id. at 883 (citin g United States v. Sw iss Am erican Bank, Ltd., 191 F.3d 30 , at 41 (1st Cir. 1999)). 97 See W orld Tanker Carriers Corp., 99 F.3d at 723. 98 Johnson, 926 F. Supp. 2d at 88 2 (E.D. La. 20 13) (citin g Adam s v. 364 F.3d at 651). 15 defendant does not concede jurisdiction in another state, a court m ay use 4(k)(2) to confer jurisdiction.’”99 “If . . . the defendant contends that he cannot be sued in the forum state and refuses to identify any other where suit is possible, then the federal court is entitled to use Rule 4(k)(2).”10 0 On Novem ber 21, 20 16, the Court issued its Order requiring all nam ed Defendants to file a separate m em orandum clarifying whether general jurisdiction exists in an y jurisdiction in the United States over each of the nam ed Defendants. 10 1 ENSCO plc did not fully respond to the Court’s Order, and instead, m erely provided a historical account of ENSCO’s evolving corporate structure, adding, “There is no subject m atter or personal jurisdiction over [ENSCO plc] in the Eastern District of Louisiana.”10 2 However, in its Third Supplem ental Brief in Support of its Motion to Dism iss, ENSCO plc represents, “In this case, there is no basis for jurisdiction in any specific District Court because [it does] not have any contact with the United States and [is a] foreign corporation[] that m aintain[s] all of [its] activities overseas.”10 3 This is sufficient to show that ENSCO plc has not conceded it is subject to the general jurisdiction of any state. ENSCO plc argues its contacts with the United States are insignificant and therefore are not sufficient to dem onstrate that exercising jurisdiction over ENSCO plc is consistent with the due process clause of the Fifth Am endm ent. 10 4 Plaintiff, however, has 99 Ogden v. GlobalSantaFe Offshore Services, 31 F. Supp. 3d 832, 839-40 (E.D. La. 20 14) (quotin g Adam s, 364 F.3d at 651). 10 0 Id. at 840 . See also, Johnson, 926 F. Supp. 2d at 8 84-85. In Johnson, the defendant argued it should be required to stipulate to jurisdiction in som e other forum as a result of its den ial of jurisdiction in the court hearing its m otion to dism iss. Id. at 884. The Fifth Circuit, rejectin g defendant GSF’s argum ent, stated, “Unfortunately for GSF, that is exactly what the Fifth Circuit has stated that Rule 4(k)(2) requires it to do.” Id. The Court also explained, “Moreover, this Court has given Defendants am ple opportun ity to m ake such an assertion and, yet, Defen dants have refused to do so.” Id. 10 1 R. Doc. 46. 10 2 R. Doc. 51, at 4. 10 3 R. Doc. 68, at 2. 10 4 R. Doc. 43, at 8-9 (citin g Porina v. Marw ard Shipping Co., 521 F.3d 122 (2d Cir. 20 0 8)). 16 dem onstrated that ENSCO plc has sufficient m inim um contacts with the United States as a whole. Plaintiff points out that ENSCO plc “m aintains a U.S.-based western hem isphere operational headquarters in Houston which is staffed by three Senior Vice Presidents and apparently Sen ior Legal Counsel (i.e., personnel).”10 5 In his deposition , Christian Ochoa, Ensco, Inc.’s Director of Tax, stated that one of ENSCO plc’s “operational headquarters” is in Houston. 10 6 Ochoa also acknowledged that ENSCO plc’s (1) Senior Vice President for Western Hem isphere Activities, Gilles Luca; (2) Vice President for Hum an Resources, Maria Silvia; an d (3) Senior Vice President for Technical Matters, J ohn Knowlton, all have offices in Houston, Texas. 10 7 Additionally, Ochoa stated that Steve Brady, who was previously Senior Vice President, Western Hem isphere, and is now Senior Vice President, Eastern Hem isphere, was based in Houston before being relocated to London as a result of his prom otion. 10 8 The Court finds that ENSCO plc has sufficient contacts with the United States as a whole such that exercising jurisdiction over ENSCO plc pursuant to Rule 4(k)(2) of the Federal Rules of Civil Procedure does not exceed the boundaries of the due process clause of the Fourteenth Am endm ent. 10 9 III. ENSCO plc’s Motion to Dism iss on the Basis of Forum Non Conveniens In its Motion to Dism iss, ENSCO plc argues the Plaintiff’s claim s should be dism issed on the basis of forum non conveniens. 110 ENSCO plc argues the Court should 10 5 R. Doc. 49, at 8 (em phasis in original). R. Doc. 30 -3, at 5. 10 7 R. Doc. 30 -3, at 4. 10 8 Id. 10 9 Given that Louisiana’s long-arm statute confers personal jurisdiction to the lim its of constitutional due process, the Court n eed not further in quire as to whether its exercise of personal jurisdiction over ENSCO plc would violate Louisiana law. See Luv N ’ Care, 438 F.3d at 469; La. R.S. 13:320 1(B). 110 R. Doc. 6-1, at 12. 10 6 17 inquire whether U.S. or foreign law applies and, if foreign law applies, “Whether another adequate forum is available where all defen dants are am enable to process.”111 ENSCO plc argues that an application of the Lauritzen-Rhoditis factors indicate that either British or Saudi Arabian law should govern this lawsuit and that it is am enable to suit in either the United Kingdom , Caym an Islands or Saudi Arabia. 112 In Gonzalez v. N aviera N eptuno A.A., the Fifth Circuit explained, “Although the plaintiff’s choice of forum should not ordinarily be disturbed, the doctrine of forum non conveniens perm its a court to resist im position upon its jurisdiction even when subject m atter jurisdiction is conferred by statute or personal jurisdiction is conferred by m inim um contacts or consent.”113 In determ ining whether a particular forum is appropriate, the court is required to balance the private interests of the litigants as well as the public interest of the chosen forum . 114 The private interests to be considered include: (i) relative ease of access to sources of proof; (ii) availability of com pulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; (iii) possibility of view of prem ises, if a view would be appropriate to the action; (iv) all other practical problem s that m ake trial of a case easy, expeditious and inexpensive; and (v) enforceability of a judgm ent if one is obtained. 115 The public interest factors include: (i) the adm inistrative difficulties flowing from court congestion; (ii) the local interest in havin g localized controversies resolved at hom e; (iii) the interest in having the trial of a case in a forum that is fam iliar with the law that governs the action; (iv) the avoidance of unnecessary problem s and conflicts of law, or an application of 111 Id. (citations om itted). Id. at 12-13. 113 832 F.2d 876, 878 (5th Cir. 1987) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 50 1, 50 8 (1947)). 114 Id. 115 Id. (citing Gilbert, 330 U.S. at 50 8 ). 112 18 foreign law; and (v) the unfairness of burdening citizens in an unrelated forum with jury duty. 116 In its Motion to Dism iss, ENSCO plc argues, “In assessing forum non conveniens, the court m ust first decide whether U.S. law or foreign law applies.”117 The Fifth Circuit previously applied a “’two-prong adm iralty forum non conveniens analysis’ which required that the district court determ ine the choice of law before addressing the issue of forum non conveniens.”118 “However, this is no longer binding law within the Fifth Circuit as Vaz Borralho was expressly overruled on this very issue.”119 “Courts no longer use a m odified forum non convenience [sic] analysis in an y cases, including those arising under the J ones Act and involving general m aritim e law. Now, choice of law is just one of the m any con siderations in the forum non conveniens analysis and alone is not determ inative.”120 The Fifth Circuit has explained that “[i]n deciding whether to dism iss a case for forum non conveniens, the district court m ust first determ ine whether an adequate alternative forum is available.”121 “If an alternative forum is both adequate and available, the district court m ust then weigh the various private and public factors to determ ine whether dism issal is warranted.”122 “Ultim ately, the inquiry is where the trial will best serve the convenience of the parties and the interests of justice.”123 “A plaintiff’s choice of 116 Id. (citin g Gilbert, 330 U.S. at 510 ; In re Air Crash Disaster N ear N ew Orleans, La. On July 9, 198 2, 821 F.2d 1147, 1162-63 (5th Cir. 1987)). 117 R. Doc. 6-1, at 12 (citing Voly rakis v. M/ V ISABELLE, 668 F.2d 863 (5th Cir. 1982)). 118 Lay son v. Baffin Investm ents, Ltd., 20 15 WL 55598 86, at *3 (M.D. La. Sept. 18, 20 15) (quotin g Vaz Borralho, et al. v . Key dril Co., et al., 696 F.2d 379 (5th Cir. 1983)). 119 Id. (citing In re: Air Crash, 821 F.2d at 1163). 120 Id. (citations om itted). 121 O’Keefe v. N oble Drilling Corp., 347 F. App’x 27, 31 (5th Cir. 20 0 9) (citing In re: Air Crash, 8 21 F.2d at 1165)). 122 Id. (citing In re: Air Crash, 821 F.2d at 1165) 123 Id. (citing DTEX , LLC, v . BBVA Bancom er, S.A., 50 8 F.3d 785, 794 (5th Cir. 20 0 7)). 19 forum is not conclusive, and ‘a foreign plaintiff’s selection of an Am erican forum deserves less deference than an Am erican citizen’s selection of his hom e forum .’”124 “The Defendant has the burden of proof on all elem ents.”125 In In re: Air Crash, the Fifth Circuit explained: This burden of persuasion runs to all the elem ents of the forum non conveniens analysis. Therefore, the m oving defendant m ust establish that an adequate and available forum exists as to all defendants if there are several. If the m oving defendant carries this initial burden, it m ust also establish that the private and public interests weigh heavily on the side of trial in the foreign forum . The Suprem e Court had held that a m oving defendant need not subm it overly detailed affidavits to carry its burden, but it “m ust provide enough inform ation to enable the district court to balance the parties interests.” 126 Defendant does not argue another forum is necessarily m ore convenient, but instead, argues it is am enable to suit in either the United Kingdom , Caym an Islands or Saudi Arabia based largely on an argum ent rooted in a choice-of-law analysis. 127 Further, the Defendant provides little to no support for its argum ent that the public and private factors favor litigating this case in either of the three identified alternative forum s abroad. Having con sidered the presum ptions that (1) plaintiff’s choice of forum should not ordinarily be disturbed and (2) an Am erican citizen’s selection of his hom e forum deserves m ore deferen ce than a foreign plaintiff’s selection as an Am erican forum , in addition to the fact that the burden of proving forum non conveniens falls on the Defendant, the Court finds ENSCO plc has not m et its burden of proof. ENSCO plc’s m otion to dism iss on the basis of forum non conveniens is denied. IV. Has Plaintiff Stated a Viable Claim Against ENSCO plc? 124 Id. (citing In re: Air Crash, 821 F.2d at 1164). Id. (citing DTEX , LLC, 50 8 F.3d at 794). 126 In re: Air Crash, 821 F.2d at 1164-65 (citin g Piper Aircraft Co. v . Rey no, 454 U.S. 235, 258 (1981)). 127 Id. at 12-13. 125 20 ENSCO plc contends that beyond jurisdiction and venue, the Plain tiff’s J ones Act and General Maritim e claim s against ENSCO plc are also subject to dism issal on 12(b)(6) grounds considering the Plaintiff was never em ployed by ENSCO plc, but rather, was em ployed by a separate and distinct Caym an corporation, co-Defendant ENSCO Lim ited. 128 “A J ones Act lawsuit may be properly filed only against the seam an’s em ployer.”129 Courts have held, however that “’the existence of . . . an em ployer/ em ployee relationship m ust be determ ined under m aritim e law’ and that ‘resolution of the issue is norm ally a factual one within the province of a jury.’”130 As the Fifth Circuit has explained, “A J ones Act claim also requires proof of an em ploym ent relationship either with the owner of the vessel or with som e other em ployer who assigns the work to a task creating a vessel connection, for ‘(b)y the express term s of the J ones Act an em ployer-em ployee relationship is essential to recovery.’”131 “In determ ining who is an em ployer for recovery under the J ones Act, control is the critical inquiry.”132 “The Fifth Circuit has established that the ‘factors indicating control over an em ployee include paym ent, direction, and supervision of the em ployee include paym ent, direction, and supervision of the em ployee. Also relevant is the source of the power to hire 128 R. Doc. 6, at 2. To the exten t ENSCO plc challenges whether the Eastern District of Louisiana is a proper venue, the Court finds that its finding of 4(k)(2) personal jurisdiction satisfies this m atter. Although the Court is cognizant that the question of venue is distin ct from the question of personal jurisdiction, Rule 4(k)(2) essentially establishes proper venue through its rule that a foreign defen dant m ay be sued in an y district when the defendant has sufficient contacts with the United States as a whole. See Johnson, 926 F. Supp. 2d. at 8 83 n.10 . See also, ISI Intern., Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 552-53 (7th Cir. 20 0 1); Allied Van Lines, Inc. v . Beam an, 20 0 8 WL 48660 52, at *2 n.1 (N.D. Ill. J uly 21, 20 0 8). 129 1 THOMAS J . SCHOENBAUM , ADMIRALTY AND M ARITIME LAW § 6-23 (5th ed. 20 11) (internal citations om itted). 130 Hollow ay v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 453 (quotin g W heatly v. Gladden, 660 F.2d 10 24, 10 26 (4th Cir. 1981)). 131 Guidry v. South Louisiana Contractors, Inc., 614 F.2d 447, 452 (5th Cir. 198 0 ) (quotin g Spinks v. Chevron Oil Co., 50 7 F.2d 216, 224 (5th Cir. 1975)). 132 Cordova v. Crow ley Marin e Servs., 20 0 3 U.S. Dist. LEXIS 13567, at *7 (E.D. La. J uly 29, 20 0 3). 21 and fire.’”133 “Further, the Fifth Circuit has reasoned that ‘the control which is exercised m ust be substantial; the m ere possibility of som e control over the actions of an em ployee will not suffice to define an em ployer-em ployee relationship.’”134 It is undisputed that Plaintiff was em ployed by ENSCO Lim ited. 135 Plaintiff, however, m aintains that he was also the concurrent em ployee of, or the borrowed em ployee of ENSCO plc. 136 In his Second Supplem ental Mem oran dum in Opposition to Defendant’s Motion to Dism iss, oppositions to ENSCO plc’s m otion to dism iss, Plaintiff argues ENSCO plc: Uses ‘separate’ but wholly-owned direct and indirect subsidiaries as if they were departm ents. One subsidiary (Ensco International, Inc.) provides insurance ben efits regardless where a U.S. citizen em ployee is assigned, and another (Ensco, Inc.) provides hum an resources an d payroll services regardless of where the U.S. citizen em ployee is assigned. And U.S. citizen em ployees like Mr. O’Berry are paper-transferred between Ensco Offshore Com pany (Gulf of Mexico) and Ensco Lim ited (overseas). 137 The Court construes these new factual allegations in Plaintiff's opposition m em orandum as a m otion to file an am ended com plaint. 138 Rule 15(a) "requires the trial court to grant leave to am end freely, and the language of this rule evinces a bias in favor of granting leave to am end." 139 A district court m ust possess a "substantial reason" to deny a m otion 133 Id. (quotin g Voly rakis v. M/ V Isabelle, 668 F.2d 863, 866 (5th Cir. 1982)). Id. 135 R. Doc. 36, at 2. 136 Id. 137 R. Doc. 52, at 3. 138 See Morin v. Moore, 30 9 F.3d 316, 323 (5th Cir. 20 0 2) ("This Court has held, that in the interest of justice a revised theory of the case set forth in the plaintiff's opposition should be construed as a m otion to am end the pleadings filed out of tim e and granted by the district court pursuant to the perm issive com m and of Rule 15.") (citin g Sherm an v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972)); Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989 n.2 (5th Cir. 20 0 8) (citing with approval cases in which the district court construed new allegations in opposition m em orandum as m otion to am end under Rule 15(a)). 139 Ly n-Lea Travel Corp. v . Am . Airlines, Inc., 283 F.3d 282, 286 (5th Cir. 20 0 2) (internal quotation m arks om itted). 134 22 under Rule 15(a). 140 No such reason exists in this case. The Court will allow Plaintiff an opportunity to am end his com plaint. CON CLU SION For the foregoing reasons; IT IS ORD ERED that ENSCO plc’s Motion to Dism iss is D EN IED to the extent it seeks dism issal of Plaintiff’s claim s pursuant to Rule 12(b)(1), Rule 12(b)(2) of the Federal Rules of Civil Procedure and forum non conveniens. IT IS FU RTH ER ORD ERED that Plaintiff is granted leave to am en d his com plaint to address the argum ents raised in ENSCO plc’s Rule 12(b)(6) m otion to dism iss on or before Th u rs d ay, March 3 0 , 2 0 17. If Plaintiff tim ely files his second am ended com plaint, Defendant’s Rule 12(b)(6) Motion to Dism iss 141 will be dism issed without prejudice as m oot. ENSCO plc will be free to re-urge its m otion to dism iss in a tim ely fashion after Plaintiff’s second am en ded com plaint is filed. N e w Orle a n s , Lo u is ian a, th is 2 0 th d ay o f March , 2 0 17. _____________ ________ _________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 140 Sm ith v. EMC Corp., 393 F.3d 590 , 595 (5th Cir. 20 0 4). In deciding whether to grant leave under Rule 15(a), courts m ay consider factors such as "undue delay, bad faith or dilatory m otive on the part of the m ovant, repeated failures to cure deficiencies by am endm ents previously allowed, undue prejudice to the opposing party by virtue of allowance of the am endm en t, and futility of the amendm ent." Jon es v. Robinson Prop. Grp., LP, 427 F.3d 98 7, 994 (5th Cir. 20 0 5). 141 R. Doc. 6. 23