United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller United States District Judge
before the court is defendant Officine Nicola Galperti e
Figlio S.p.A.'s (“ONG”) motion to dismiss for
lack of personal jurisdiction. Dkt. 19 at 1-21. Plaintiffs
Boltex Manufacturing Company, L.P. (“Boltex”) and
Weldbend Corporation (“Weldbend”) (collectively,
“Plaintiffs”) responded. Dkt. 26. ONG replied.
Dkt. 28. The parties filed supplemental briefing after
conducting jurisdictional discovery. Dkts. 54, 59. Having
considered the motion, response, reply, supplemental
briefing, and applicable law, the court is of the opinion
that ONG's motion should be DENIED.
false advertising case, all parties manufacture carbon steel
flanges. Dkt. 1 at 1-3. Boltex is a Texas limited
partnership with its principal place of business in Houston,
Texas. Id. at 2. Weldbend is a Delaware corporation
with its principal place of business in Argo, Illinois.
Id. ONG's principal place of business is in
Italy. Id. at 3.
dispute centers on normalization, a heat treatment process
that changes the physical composition of carbon steel to
increase its machinability and toughness. Id. at 1,
8. Because the process involves additional time and
resources, it costs manufacturers more to produce normalized
flanges than non-normalized (or forged) ones. Id.
American Society of Testing and Materials
(“ASTM”) sets out standards requiring
manufacturers to apply heat treatment to certain types of
flanges. Id. at 8-9. Manufacturers can
choose from several processes including normalization.
Id. However, many customers will only purchase
certain flanges if they are normalized. Id.
Additionally, customers “generally select and purchase
flanges based upon price alone.” Id. at 17.
manufacture, market, and sell normalized flanges.
Id. at 9. Plaintiffs' normalization processes
comply with ASTM standards. Id. at 8-9. Plaintiffs
indicate that compliance by: (1) stamping normalized flanges
and (2) noting normalization in an industry-standard report.
Id. at 10. Further, Plaintiffs charge more for
normalized flanges than they do for forged ones. Id.
advertised some of its flanges as normalized and as compliant
with ASTM standards. Id. at 11, 16. Customers believed
those flanges were “of the same quality and meet the
same standards as Plaintiffs' flanges . . . .”
Id. at 16. But, ONG's flanges were not
normalized. Id. Thus, they did not comply with ASTM
standards. Id. at 18.
ONG customers interested in buying normalized, ASTM-compliant
flanges emailed ONG for price quotes. Dkt. 54 at 5. ONG's
emailed responses indicated that its flanges met those
criteria. Id. at 5-6. Then, ONG sold those flanges
to multiple customers in Texas. Id. at 5-7. And, ONG
sold those flanges for less than the cost of Plaintiffs'
normalized flanges, charging “about the same price at
which [Plaintiffs] sell their ‘as forged'
(non-normalized) flanges.” Dkt. 1 at 16. As a result,
customers who wanted to buy normalized, ASTM-compliant
flanges purchased those flanges from ONG, and not from
sued Defendants for false advertising and unfair competition
in violation of the Lanham Act, 15 U.S.C. § 1125(a), as
well as common law unfair competition. Id. at 23. In
the instant motion, ONG moves to dismiss for lack of personal
jurisdiction. Dkt. 19.
must dismiss an action when it lacks personal jurisdiction
over the defendant. Fed.R.Civ.P. 12(b)(2). When a
non-resident defendant moves to dismiss for lack of personal
jurisdiction, the resident plaintiff has the burden of
establishing a prima facie showing that the defendant is
subject to personal jurisdiction. Lewis v. Fresne,
252 F.3d 352, 358 (5th Cir. 2001); see also Bullion v.
Gillespie, 895 F.2d 213, 216-17 (5th Cir. 1990).
“Proof by a preponderance of the evidence is not
required.” D.J. Invs., Inc. v. Metzeler Motorcycle
Tire Agent Gregg, Inc., 754 F.2d 542, 545-46 (5th Cir.
diversity action, a federal court may exercise personal
jurisdiction over a non-resident defendant if: (1) the
long-arm statute of the forum state allows the exercise of
personal jurisdiction over that defendant, and (2) the
exercise of personal jurisdiction over that defendant is
consistent with due process under the U.S. Constitution.
Clemens v. McNamee, 615 F.3d 374, 378 (5th Cir.
2010). This two-step personal jurisdiction inquiry collapses
into one federal due process analysis because the Texas
long-arm statute extends to the limits of federal due
process. Id. (citing Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct.
satisfy due process, the plaintiff must show: “(1) that
the non-resident purposely availed himself of the benefits
and protections of the forum state by establishing
‘minimum contacts' with the state; and (2) that the
exercise of jurisdiction does not offend ‘traditional
notions of fair play and substantial justice.'”
Johnston v. Multidata Sys. Int'l Corp., 523 F.3d
602, 609 (5th Cir. 2008) (quoting Wilson v. Belin,
20 F.3d 644, 647 (5th Cir.1994)). Minimum contacts are
established through the assertion of either general or
specific jurisdiction. Panda Brandywine Corp. v. ...