United States District Court, S.D. Mississippi, Northern Division
M-D MEDICAL SERVICES, INC. PLAINTIFF
M.A.S.H., INC., GREGORY L. HORN and CHARLES BORDENCA DEFENDANTS
T. WINGATE, UNITED STATES DISTRICT COURT JUDGE
THIS COURT is the Motion to Dismiss for Lack of Personal
Jurisdiction [Docket no. 3] filed by
defendants M.A.S.H., INC. (“M.A.S.H”), Gregory L.
Horn (“Horn”), and Charles Bordenca
(“Bordenca”) (hereinafter collectively referred
to as “Defendants”). The Defendants filed their
memorandum brief in support of their motion to dismiss on the
same date, May 24, 2018 [Docket no. 4]. Plaintiff M-D Medical
Services, Inc. (hereinafter referred to as “M-D
Medical” or “Plaintiff”) filed its response
in opposition and memorandum in support of its opposition on
June 7, 2018 [Docket no. 7]. Defendants filed their second
memorandum in support of their motion to dismiss on June 18,
2018 [Docket no. 10].
their motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(2)[1" name="FN1" id=
"FN1">1], Defendants campaign that each of them
lacks sufficient contacts with Mississippi to support the
assertion of personal jurisdiction over them according to the
requirements of Mississippi's Long-Arm Statute and Due
Process under the Fourteenth Amendment to the United States
Constitution. For the reasons presented herein, this Court
disagrees with the Defendants and hereby denies the
Defendants' Motion to Dismiss for Lack of Personal
Jurisdiction. [Docket no. 3].
court possesses federal subject matter jurisdiction over the
parties based on diversity of citizenship under Title 28
U.S.C. § 1332 because the matter in controversy exceeds
the sum of $75, 000, exclusive of interests and costs, and is
between citizens of different states. Complete diversity of
citizenship exists here, as none of the defendants resides in
the same state as the plaintiff.
lawsuit arises from a contractual agreement between M-D
Medical and M.A.S.H, whereby M-D Medical agreed to provide
certain enteral nutrition[4" name="FN4"
id="FN4">4] and supplies to patients of M.A.S.H.
residing in nursing facilities in the State of Alabama. The
facts below are derived from Plaintiff's Amended
Complaint [Docket no. 7].
Medical is a Mississippi corporation. Defendant M.A.S.H. is
an Alabama corporation with its principal place of business
in Alabaster, Alabama. Defendant Horn is the president of
M.A.S.H. and a resident of Alabama. Defendant Bordenca is the
secretary/treasurer of M.A.S.H. and a resident of Alabama.
M-D Medical alleges that Horn and Bordenca, as
owners/operators of M.A.S.H., exercise absolute control over
1, 2016, M-D Medical entered into a Subcontract Agreement
(hereinafter referred to as “the Agreement”) with
M.A.S.H. to provide inventory acquisition, delivery and
training products, and general product management to patients
of M.A.S.H. These patients reside in nursing homes in
Competitive Bidding Areas (hereinafter referred to as
“CBAs”) in the State of Alabama. The only
signatories to the Agreement were M.A.S.H. and M-D Medical.
M-D Medical alleges that in marketing and selling products
pursuant to the Agreement, M-D Medical “advanced
credit, money, product and/or services to Defendant for
business purposes in the amount of $153, 681.17.00, such
amount being presently due.” [Docket no. 1 at p. 3].
M-D Medical also claims that M.A.S.H has wrongly received
payments belonging to M-D Medical in the amount of $98,
500.00 as a result of a third-party billing error.
Medical's lawsuit seeks damages from all defendants for:
breach of contract; bad faith breach of contract; conversion;
negligence and/or fraud; tortious interference with business
relations; and civil conspiracy. M-D Medical also demands an
audit or accounting of each defendant from July 1, 2016 to
present, seeking disgorgement of any funds due to M-D
Medical. M-D Medical further seeks to pierce to the corporate
veil in its effort to obtain damages from the individual
defendants, Horn and Bordenca, for: breach of fiduciary
duties; breach of contract; malfeasance; and conversion
and/or misappropriation of funds.
federal court sitting in diversity may exercise personal
jurisdiction only to the extent allowed by a state court
under applicable state law. Mortensen Const. & Util.,
Inc. v. Grinnell Mut. Reinsurance Co., 718 F.Supp.2d
781, 782 (S.D.Miss. 2010). Under the Federal Rule of Civil
Procedure 12(b)(2), a defendant may move for dismissal on the
basis of lack of personal jurisdiction. “The party
seeking to invoke the power of the court bears the burden of
proving that jurisdiction exists.” Luv N' Care,
Ltd. V. Insta-Mix, Inc., 438 F.3d 465');">438 F.3d 465, 469 (5th Cir.
court may determine the jurisdictional issue by receiving
affidavits, interrogatories, depositions, oral testimony, or
any combination of the recognized methods of
discovery.” Allred v. Moore & Peterson,
117 F.3d 278');">117 F.3d 278, 281 (5th Cir. 1997). In making this
determination, uncontroverted allegations in a
plaintiff's complaint, other than conclusory allegations,
must be taken as true. Thompson v. Chrysler Motors
Corp., 1162');">755 F.2d 1162, 1165 (5th Cir. 1985)(“the
allegations of the complaint, except insofar as controverted
by opposing affidavits, must be taken as true.”)
Additionally, factual conflicts must be resolved in favor of
the plaintiff. Panda Brandywine Corp. v. Potomac Elec.
Power Co., 253 F.3d 865, 869 (5th Cir. 2001).
diversity cases under 28 U.S.C. § 1332, such as this
matter before the Court, the exercise of personal
jurisdiction over a non-resident defendant must comport with
both federal constitutional due process requirements and the
long-arm statute of the state in which the district court is
located.” Companion Prop. and Cas. Ins. Co. v.
Palermo, 723 F.3d 557, 559 (5th Cir. 2013)(citing
Paz v. Brush Engineered Materials, Inc., 445 F.3d
809, 812 (5th Cir. 2006)).
Mississippi's Long-Arm Statute
the provisions of Mississippi's Long-Arm Statute, Miss.
Code Ann. § 13-3-57, three activities permit Mississippi
courts to exercise personal jurisdiction over a nonresident
defendant: If that person has (1) entered into a contract to
be performed [in whole or in part] in Mississippi; (2) has
committed a tort in Mississippi; or, (3) is conducting
business in Mississippi." Dunn v. Yager, 58
So.2d 1171, 1184 (Miss. 2011) (citing Yatham v.
Young, 12 So.2d 467');">912 So.2d 467, 469-70 (Miss. 2005)). These
strictures of Mississippi's Long-Arm Statute are commonly
referred to as the three prongs: the contract prong, the tort
prong and the doing business prong. MissITL Int'l,
Inc. v. Constenla S.A., 493');">669 F.3d 493, 497 (5th Cir.
asserts that this Court lacks personal jurisdiction over all
defendants because M-D Medical's Complaint lacks any
factual allegations of any conduct by any Defendant that
occurred in whole or in part in Mississippi [Docket no. 4, p.
1]. M-D Medical disagrees with M.A.S.H.'s argument, and
for support, points to the exhibits. Although
Mississippi's Long-Arm Statute manifests three prongs,
this Court will only address the contract prong to show that,
here, personal jurisdiction exists over M.A.S.H.