United States District Court, S.D. Texas, Houston Division
OPINION AND ORDER
MELINDA HARMON UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Anastasia Maria Mazzone
Macias's Motion to Dismiss for Lack of Personal
Jurisdiction (Doc. 11). For the reasons set forth below, the
Court hereby ORDERS that Defendant's motion is GRANTED.
Background and Relevant
On March 9, 2017, Plaintiff Tradequip Services and Marine,
Inc. (“Tradequip”) initiated suit in the 281st
Judicial District Court of Harris County, Texas (Cause No.
2017-16659) alleging claims for breach of contract, money had
and received, conversion, and unjust enrichment against
Defendant Anastasia Maria Mazzone Macias
(“Mazzone”). Defendant Mazzone subsequently
removed the action to this Court on August 9, 2017 (Doc. 1)
and filed a motion to dismiss for lack of personal
jurisdiction on August 15, 2017 (Doc. 4). Plaintiff filed an
amended complaint on September 5, 2017 (Doc. 7), and
Defendant filed a motion to dismiss the amended complaint on
September 22, 2017 (Doc. 11).
is a Texas corporation with its principal place of business
in Houston, Texas. Ms. Mazzone is an individual residing in
Florida. According to Plaintiff's First Amended
Complaint, in late 2011, Ms. Mazzone's then-husband,
Wilmer Ruperti, called Tradequip's then- president,
Roberto Rincon, in Texas to solicit a $1, 000, 000
interest-free loan. Doc. 7 at 2. According to Mr.
Rincon's declaration, Mr. Ruperti claimed he was
soliciting the loan on Ms. Mazzone's behalf. Mr. Ruperti
told Mr. Rincon that Ms. Mazzone needed the loan to fufill
some payment commitments for her new apartment in Miami and
that Ms. Mazzone would be responsible for repaying the loan,
which would be due on demand by Tradequip. Doc. 7-1 at 1. Mr.
Rincon, on behalf of Tradequip, agreed to make the loan. Doc.
7 at 2. Tradequip wired $1, 000, 000 to Ms. Mazzone's
bank account in Florida on December 1, 2011. Id.
Plaintiff does not allege that it had any communication with
Ms. Mazzone, but rather argues in its response to
Plaintiff's motion to dismiss that Mr. Ruperti was acting
as Ms. Mazzone's agent in soliciting the loan from
Tradequip. Doc. 12 at 4.
federal district court sitting in diversity may exercise
jurisdiction over a foreign defendant if (1) the long-arm
statute of the forum state creates personal jurisdiction over
the defendant; and (2) the exercise of personal jurisdiction
is consistent with the due process guarantees of the United
States Constitution.” Revell v. Lidov, 317
F.3d 467, 469 (5th Cir. 2002) (citing Latshaw v.
Johnston, 167 F.3d 208, 211 (5th Cir. 1999)). The Fifth
Circuit has found that the Texas long-arm statute is
“coextensive with the federal constitutional limits of
due process and normally generates an inquiry limited to the
scope of the Fourteenth Amendment's Due Process
Clause.” Stroman Realty, Inc. v. Wercinski,
513 F.3d 476 (5th Cir. 2008) (citing Religious Tech. Ctr.
V. Liebreich, 339 F.3d 369, 373 (5th Cir. 2003)).
determining whether a federal district court may exercise
personal jurisdiction over a nonresident defendant, the court
concentrates on whether the defendant has “minimum
contacts” with the forum state so as not to offend
“traditional notions of fair play and substantial
justice.” International Shoe v. Washington,
326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer,
311 U.S. 457, 463 (1940)). Minimum contacts may be
established through specific personal jurisdiction or general
personal jurisdiction. If a cause of action arises out of a
defendant's purposeful contacts with the forum state,
minimum contacts are established, and the court may exercise
specific personal jurisdiction. Dalton v. R & W
Marine, Inc., 897 F.2d 1359, 1361 (5th Cir. 1990)
(citing World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286 (1980)). “Even a single, substantial act
directed toward the forum can support specific
jurisdiction.” Dalton, 897 F.2d at 1361
(citing Burger King Corp. v. Rudzewicz, 471 U.S. 462
(1985)). There must, however, be some act by which the
nonresident defendant “purposefully availed himself of
the benefits and protections of the forum state's laws,
so as reasonably to anticipate being haled into court
there.” Dalton, 897 F.2d at 1361 n. 1 (citing
Hanson v. Denckla, 357 U.S. 235, 253 (1958)).
deciding whether to exercise specific jurisdiction over a
nonresident defendant, the Court must find that (1) the
defendant purposefully directed his activities toward the
forum state; (2) the cause of action arises out of or results
from those contacts; and (3) the exercise of personal
jurisdiction comports with fair play and substantial justice.
Burger King Corp., 471 U.S. at 463.
plaintiff has the burden of making a prima facie
showing that the court indeed has personal jurisdiction over
a nonresident defendant. Revell, 317 F.3d at 469. In
deciding whether it has personal jurisdiction, the Court may
consider “affidavits, interrogatories, depositions,
oral testimony, or any combination of the recognized methods
of discovery.” Id. (citing Stuart v.
Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985)).
Additionally, the court “must accept the
plaintiff's ‘uncontroverted allegations, and
resolve in [his] favor all conflicts between the facts
contained in the parties' affidavits and other
documentation.'” Revell, 317 F.3d at 469
(citing Alpine View Co. Ltd. v. Atlas Copco AB, 205
F.3d 208, 215 (5th Cir. 2000)).
agency principles, an agent's contacts can be imputed to
its principal for purposes of examining personal
jurisdiction. Coleman v. Klockner & Co. AG, 180
S.W.3d 577, 588 (Tex. App.--Houston [14th Dist.] 2005),
citing Walker Ins. Servs. v. Bottle Rock Power
Corp., 108 S.W.3d 538, 549 n.4 (Tex. App.--Houston [14th
Dist.] 2003, no pet.). “An agent is one who is
authorized by a person or entity to transact business or
manage some affair for the person or entity.”
Coleman, 180 S.W.3d at 588. The key element of an
agency relationship is the principal's right to control
the means and details of the process by which the agent is to
accomplish his task. Id. Whether an agency
relationship exists is usually a question of law.
Id. at 587. Agency is not presumed; the party
asserting an agency relationship bears the burden of proving
it. Id. at 588; Norton v. Marin, 703 S.W.2d
267, 272 (Tex. App.--San Antonio 1985). An agency
relationship can be established from underlying facts or
direct and circumstantial evidence demonstrating the
relationship of the parties. Coleman, 189 S.W.3d at
588. Under Texas law, mere declarations of an alleged agent,
by themselves, are insufficient to establish either the
existence of an agency relationship or the scope of the
alleged agent's authority. Walker Ins. Servs.,
103 S.W.3d at 550, citing Durand v. Moore, 879
S.W.2d 196, 202-03 (Tex. App.--Houston [14th Dist.] 1994, no
principal is liable for the acts of its agent only when the
agent has actual or apparent authority to perform those acts
or when the principal ratifies the agent's conduct.
Expro Americas, LLC v. Sanguine Gas Exploration,
LLC, 352 S.W.3d 915, 920-21 (Tex. App.--Houston [14th
Dist.] 2011). An agent has actual authority to act for his
principal when (1) the principal intentionally confers the
responsibility on an agent, (2) the principal intentionally
allows the agent to believe he possesses that authority, or
(3) by want of due care the principal allows the agent to
believe he possesses it. To determine if an agent has actual
authority, the court examines the principal's words and
conduct relative to the agent. Id. at 921. Actual
authority is express when the words of the principal
expressly and directly authorize the agent to do an act or
series of acts on behalf of the principal. Id.
Authority is implied for an agent to do whatever is necessary
and proper to carry out the agent's express authority.
Id. If an agent does not have express authority, he
cannot have implied authority. Id.
parties agree that Ms. Mazzone is not subject to general
personal jurisdiction in Texas. Doc. 8 at 2. Therefore, the
Court will only consider whether specific personal
jurisdiction exists. In the present case, Plaintiff has
failed to provide the Court with any evidence that
demonstrates that Defendant herself has sufficient minimum
contacts with Texas. Ms. Mazzone had no personal contacts or
communications with Plaintiff regarding the solicitation or
negotiation of the loan, nor did she purposely avail herself
of the privileges of conducting activities in Texas. In spite
of Ms. Mazzone's lack of contact with the forum ...