United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE, UNITED STATES DISTRICT JUDGE
for consideration the motion of defendant, Frank H. Reis,
Inc., d/b/a The Reis Group, to dismiss for lack of personal
jurisdiction. The court, having considered the motion, the
response of plaintiff, Rankin Construction National Builders,
L.L.C., the record, and applicable authorities, finds that
the motion should be denied.
28, 2017, plaintiff filed its original petition in the 3
52nd Judicial District Court of Tarrant County,
Texas, asserting claims against defendant for violation of
the Texas Deceptive Trade Practices-Consumer Protection Act,
Tex. Bus. & Com. Code §§ 17.41-. 63,
misrepresentation under the Texas Insurance Code §
541.051, fraud, and conversion.
alleged: Plaintiff is a framing contractor that provides
framing and construction-related services to commercial
builders. Plaintiff carries liability insurance coverage for
the services it provides on its projects. Defendant sells
insurance products. Defendant retained or employed Damian
D'Arpino as an agent for the purpose of advising clients
on insurance products sold by defendant and for the purpose
of selling insurance products, including commercial general
liability insurance policies. Defendant was an authorized
agent to sell such insurance and to bind coverage for certain
insurance companies. Defendant sold numerous policies on
numerous projects to plaintiff, issuing approximately
eighty-five certificates of liability insurance to plaintiff
as insured. On March 7, 2016, defendant delivered to
plaintiff a certificate of liability insurance for a policy
on a construction project in New Jersey. A fatal accident
occurred on the project and when plaintiff gave notice
thereof it learned that the policy had never been in effect
and that the certificate of insurance was fraudulent.
Plaintiff also discovered that other certificates issued by
defendant were not valid when issued or coverage had lapsed
or been cancelled without notice to plaintiff.
28, 2017, defendant filed its notice of removal, bringing the
action before this court. Doc. 1.
Ground of the Motion
maintains that the court lacks personal jurisdiction over it.
Applicable Legal Standard
burden is on plaintiff to establish the court's
jurisdiction over defendant. Wilson v. Belin, 20
F.3d 644, 648 (5th Cir. 1994); Stuart v.
Spademan, 772 F.2d 1185, 1192 (5th Cir.
1985). Personal jurisdiction need not be established by a
preponderance of the evidence at this stage; prima
facie evidence is sufficient. WNS, Inc. v.
Farrow, 884 F.2d 200, 203 (5th Cir. 1989).
The court may resolve jurisdictional issues by reviewing
pleadings, affidavits, exhibits, any part of the record, and
any combination thereof. Command-Aire Corp. v. Ontario
Mech. Sales & Serv., Inc., 963 F.2d 90, 95
(5th Cir. 1992). Allegations of plaintiff's
complaint are taken as true except to the extent that they
are contradicted by defendant's affidavits. Wyatt v.
Kaplan, 686 F.2d 276, 282-83 n.13 (5th Cir.
1982). Any genuine, material conflicts are resolved in favor
of plaintiff. Jones v. Petty-Ray Geophysical Geosource,
Inc., 954 F.2d 1061, 1067 (5th Cir. 1992).
diversity action, personal jurisdiction over a nonresident
may be exercised if (1) the nonresident defendant is amenable
to service of process under the law of the forum state, and
(2) the exercise of jurisdiction under state law comports
with the due process clause of the Fourteenth Amendment.
Wilson, 20 F.3d at 646-47. Since the Texas long-arm
statute has been interpreted as extending to the limits of
due process, the only inquiry is whether the exercise of
jurisdiction over the nonresident defendant would be
constitutionally permissible. Bullion V. Gillespie,
895 F.2d 212, 216 (5th Cir. 1990) .
process to be satisfied, a nonresident must have minimum
contacts with the forum state resulting from an affirmative
act on the defendant's part and the contacts must be such
that the exercise of jurisdiction over the person of the
defendant does not offend traditional notions of fair play
and substantial justice. International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945).
the record reflects that defendant solicited plaintiff's
business. Defendant clearly understood that plaintiff was a
Texas company performing substantial construction work in
Texas, as well as other states, for which it needed
commercial insurance coverage. Plaintiff looked to and relied
upon defendant to provide the necessary coverage. It was
defendant's duty to keep plaintiff fully informed so that
it could remain safely insured at all times. See Cateora
v. British Atlantic Assurance, Ltd., 282 F.Supp. 167,
174 (S.D. Tex. 1968) . In that regard, defendant made
numerous calls and sent emails to plaintiff at its only
office, located in Fort Worth, Texas. The lawsuit arises out