United States District Court, N.D. Texas, Dallas Division
STANLEY V. GRAFF, Plaintiff,
THE OWINGS GALLERY, INC., and NATHANIEL O. OWINGS, Defendants.
MEMORANDUM OPINION AND ORDER
KINKEADE UNITED STATES DISTRICT JUDGE
the Court are: (1) Defendants' Motion to Dismiss (Doc.
No. 4); and (2) Plaintiff's Contingent Motion for Leave
to Conduct Jurisdictional Discovery (Doc. No. 13). After
careful consideration of the motions, the responses, the
replies, the supporting appendices, and the applicable law,
the Court GRANTS Defendants' motion to
dismiss and DENIES Plaintiff's
contingent motion for leave to conduct jurisdictional
Factual and Procedural Background
Stanley Graff (“Plaintiff”) is a citizen of
Texas, residing in Dallas. Defendant Owings Gallery
(“Gallery”) is a corporation organized under the
laws of the state of New Mexico, with its principal place of
business in Santa Fe, New Mexico. Defendant Gallery operates
two (2) art galleries in Santa Fe, New Mexico. Defendant
Nathaniel O. Owings (“Owings”) is a citizen of
New Mexico, residing in Santa Fe. Defendant Owings is the
president and sole shareholder of Defendant Gallery.
2006, Plaintiff purchased a painting by William Victor
Higgins (“Higgins painting”). In 2012, Plaintiff
and his wife, Deborah Graff (“Deborah”) began
divorce proceedings. Plaintiff alleges the divorce court
prohibited Deborah from selling assets of the marital estate
unless she received permission from Plaintiff and the divorce
court. Despite this restriction, Plaintiff alleges that
Deborah took the Higgins painting without his and the divorce
court's knowledge or permission, and pawned it in
Arizona. When Deborah defaulted on the loan, the pawn shop
sent the painting to an auction house in Chicago, Illinois,
where it was ultimately put up for auction on September 15,
2015. Defendant Gallery bought the Higgins painting at this
auction, and it was delivered to Defendant Gallery in Santa
Fe, New Mexico, where it was displayed. On October 23, 2015,
a customer of Defendant Gallery bought the Higgins painting
after seeing it in the Santa Fe gallery. The buyer was then
invoiced for the Higgins painting on November 2, 2015, but
the painting had not yet been delivered.
November 18, 2015, Defendant Owings spoke with Plaintiff on
the telephone. Plaintiff told Defendant Owings that he was in
the process of divorcing his wife and she had stolen the
Higgins painting and sold it without Plaintiff's
knowledge. Plaintiff asked Defendant Owings to return the
painting to him. On Defendant Owings' request, Plaintiff
indicated he would provide some type of proof that the
Higgins painting belonged to him and was stolen. After this
phone call, Defendant Owings contacted the purchaser of the
Higgins painting. The painting had not yet been delivered to
the purchaser, and Defendant Owings put the purchaser on
notice that the sale was suspended because of Plaintiff's
Owings called Plaintiff twice more to inquire about any
information Plaintiff could provide to substantiate his theft
claim. Both times, Plaintiff told Defendant Owings he was
working on getting the information. By November 25, 2015, a
week after the first phone call, Defendant Owings still had
not received any proof of the theft or ownership of the
Higgins painting. Ultimately, the sale of the Higgins
painting was reinstated and the painting delivered to the
Owings' next communication with Plaintiff was a letter
dated July 29, 2016, in which Plaintiff notified Defendants
that Plaintiff would be issuing a subpoena related to the
Higgins painting. Plaintiff filed this lawsuit against
Defendants in Texas state court on January 24, 2017.
Defendants removed the case to this Court on February17,
Motion to Dismiss
nonresident defendant moves to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of establishing
the district court's jurisdiction over the nonresident.
See Monkton Ins. Services, Ltd. v. Ritter, 768 F.3d
429, 431 (5th Cir. 2014); Gardemal v. Westin Hotel
Co., 186 F.3d 588, 592 (5th Cir. 1999). When there is no
evidentiary hearing, the plaintiff may establish personal
jurisdiction by presenting a prima facie case that personal
jurisdiction exists; proof by a preponderance of the evidence
is not required. Int'l Truck & Engine Corp. v.
Quintana, 259 F.Supp.2d 553, 556 (N.D. Tex.
2003)(Lindsay, J.)(citing WNS, Inc. v. Farrow, 884
F.2d 200, 203 (5th Cir. 1989)). The plaintiff satisfies his
burden by producing admissible evidence which, if believed,
would support the existence of personal jurisdiction.
WNS, 884 F.2d at 203-04. In making its
determination, the court may consider affidavits,
interrogatories, depositions, oral testimony, or any
combination of recognized discovery methods. Allred v.
Moore & Peterson, 117 F.3d 278, 281 (5th Cir. 1997).
The court will take the allegations of the complaint as true,
except where they are controverted by opposing affidavits,
and all factual conflicts are resolved in favor of the
plaintiff. Gardemal, 186 F.3d at 592; Wilson v.
Belin, 20 F.3d 644, 648 (5th Cir. 1994). While this is a
liberal standard, it “does not require the court to
credit conclusory allegations, even if uncontroverted.”
Panda Brandywine Corp. v. Potomac Elec. Power Co.,
253 F.3d 865, 869 (5th Cir. 2001).
considering whether the court has personal jurisdiction over
a nonresident defendant, the court must consider: (1) whether
the long-arm statute of the state in which it sits confers
personal jurisdiction over the defendant; and, if so, (2)
whether the exercise of personal jurisdiction is consistent
with due process under the United State Constitution.
Mink v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th Cir.
1999). The Supreme Court of Texas has interpreted the
state's long-arm statute “to reach as far as the
federal constitution permits.” Schlobohm v.
Schapiro, 784 S.W.2d 355, 357 (Tex. 1990). Therefore,
this Court need only address whether the exercise of personal
jurisdiction over the nonresident defendant would be
consistent with the Due Process Clause of the Fourteenth
Amendment. Mink, 190 F.3d at 335-36.
may exercise personal jurisdiction over a nonresident
defendant under the Due Process Clause “when (1) that
defendant has purposefully availed himself of the benefits
and protections of the forum state by establishing
‘minimum contacts' with the forum state; and (2)
the exercise of jurisdiction over that defendant does not
offend ‘traditional notions of fair play and
substantial justice.'” Latshaw v.
Johnston, 167 F.3d 208, 211 (5th Cir. 1999)(quoting
Int'l Shoe Co. v. State of Washington, 326 U.S.
310, 316 (1945)).
nonresident defendant's “minimum contacts”
can give rise to general or specific personal jurisdiction.
Mink, 190 F.3d at 336. When the cause of action
either arises from or is directly related to the nonresident
defendant's contacts with the forum state, there is
specific personal jurisdiction. Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9
(1984). In contrast, when the nonresident defendant's
contacts with the forum state are unrelated to the
plaintiff's cause of action but are, instead,
“continuous and systematic”, there is general
personal jurisdiction. Helicopteros, 466 U.S. at 414
n. 8; see Mink, 190 F.3d at 336. The nonresident
defendant's availment of the benefits and protections of
the forum state must be such that the defendant “should
reasonably anticipate being haled into court” there.
World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297 (1980). This requirement of purposeful availment
acts to ensure that a defendant's “‘random,