United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
KINKEADE UNITED STATES DISTRICT JUDGE.
the Court is the Motion to Dismiss for Lack of Personal
Jurisdiction Pursuant to Rule 12(b)(2) by Third-Party
Defendant ProFoam, LLC (Doc. No. 24). Since the motion to
dismiss was filed, the Court ordered Third-Party Plaintiff
Kelchner, Inc. to amend its Third-Party Complaint only as to
the citizenship of Third-Party Defendant ProFoam, LLC's
sole member. Because the amended complaint does not change or
affect the legal issues presented in the motion to dismiss
for lack of personal jurisdiction, the Court will construe
the motion to dismiss the original third-party complaint as a
motion to dismiss the first amended third-party complaint.
After reviewing the motion, the response, the reply, and the
appropriate law, the Court GRANTS
Third-Party Defendant ProFoam, LLC's motion to dismiss.
Because ProFoam, LLC does not have continuous and systematic
contacts with the forum state such that it is at home in
Texas, the Court has no personal jurisdiction over ProFoam,
LLC and must dismiss it from this case.
October 28, 2014, a pipeline explosion occurred in Monroe
County, Ohio. As a result of this explosion, Blue Racer
Midstream, LLC (“Blue Racer”) filed suit against
Kelchner, Inc. (“Kelchner”), alleging Kelchner
and ProFoam, LLC caused the explosion by improperly applying
polyurethane foam. Blue Racer filed this suit in Texas
pursuant to a forum selection clause in the contract between
Blue Racer and Kelchner. Originally, Blue Racer sued the
wrong “ProFoam” entity and then dismissed its
claims against that entity. Kelchner filed its Third-Party
Complaint against the allegedly correct ProFoam entity,
ProFoam, LLC (“ProFoam”). On the Court's
order, Kelchner amended its complaint to clarify
ProFoam's citizenship. In Kelchner, Inc's First
Amended Third-Party Complaint (“Third-Party
Complaint”), Kelchner states ProFoam's sole member
is a citizen of Louisiana.
is a Louisiana limited liability company because its sole
member is an individual who is a citizen of Louisiana.
Kelchner did not state in its Third-Party Complaint any facts
indicating Texas courts have personal jurisdiction over
ProFoam. ProFoam has alleged it is not subject to personal
jurisdiction in Texas. ProFoam alleges it does not maintain
any offices or employees in Texas, does not own or lease
property in Texas, and has no registered agent in Texas.
ProFoam alleges the only connections it has to Texas are two
pipeline projects in 2008-2009 that ProFoam worked on and
that ProFoam receives requests for bids from Texas
contractors for projects outside of Texas. Kelchner alleges
ProFoam has entered into contracts with a Texas based company
to perform projects in Ohio and Pennsylvania and has hired a
Texas company to work on a ProFoam vehicle.
ProFoam argues it has very few contacts with Texas, ProFoam
filed this motion to dismiss for lack of personal
Texas long-arm statute applies in this case. As the Texas
long-arm statute has the same scope as the U.S. Constitution,
this Court may only exercise jurisdiction over the Defendant
if jurisdiction is consistent with the Due Process Clause.
See Alpine View Co. v. Atlas Copco A.B., 205 F.3d
208, 214 (5th Cir. 2000). The Due Process Clause permits the
exercise of personal jurisdiction over a nonresident
defendant “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.'” Id. at
214-15 (quoting Int'l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945)).
contacts” can be established through either specific
jurisdiction or general jurisdiction. See Alpine
View, 205 F.3d at 215. Specific jurisdiction over a
nonresident corporation exists when that corporation has
purposefully directed its activities at the forum state and
the litigation results from alleged injuries that arise from
or relate to those activities. See id. (quoting
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472
(1985)). General jurisdiction exists when the nonresident
defendant's contacts with the forum state are so
substantial, continuous, and systematic “as to render
it essentially at home in the forum state.” Daimler
AG v. Bauman, 134 S.Ct. 746, 761 (2014). Contacts which
are random, fortuitous, or attenuated do not count in the
minimum contacts analysis. See Johnston v. Multidata Sys.
Intern. Corp., 523 F.3d 602, 610 (5th Cir. 2008).
the defendant presents a motion to dismiss for lack of
personal jurisdiction, the plaintiff has the burden of
establishing the Court's jurisdiction over the defendant.
See Gundle Lining Constr. v. Adams Cty. Asphalt,
Inc., 85 F.3d 201, 204 (5th Cir. 1996); see
Fed. R. Civ. P. 12(b)(2). In its response to a
defendant's motion to dismiss for lack of personal
jurisdiction, the plaintiff cannot stand on its pleadings,
but must, through affidavits or otherwise, set forth specific
facts demonstrating that the Court has jurisdiction. See
Revell v. Linov, 317 F.3d 467, 469 (5th Cir. 2002).
the Court does not conduct an evidentiary hearing, the party
seeking to assert jurisdiction must present facts sufficient
to make out a prima facie case supporting personal
jurisdiction. See Alpine View, 205 F.3d at 215. The
Court accepts as true that party's uncontroverted
allegations, resolving in its favor all conflicts between the
facts contained in the parties' affidavits and other
documentation. See id. However, the Court is not
required to give credit to conclusory allegations, even if
they are uncontroverted. See Panda v. Brandywine Corp. v.
Potomac Elec. Power Comp., 253 F.3d 865, 868-69 (5th
The Parties Agree the Court Does Not Have Specific
Jurisdiction Over ProFoam.
concedes that ProFoam is not subject to specific jurisdiction
in Texas given that ProFoam's sole member is a citizen of
Louisiana and all the activity in this case occurred in Ohio
Kelchner Failed to Establish ProFoam Is at Home in Texas And
So the Court Has No. ...