United States District Court, S.D. Texas, Houston Division
H. MILLER UNITED STATES DISTRICT JUDGE.
before the court are defendant Officine Nicola Galperti e
Figlio S.p.A.'s (“ONG”) motions to: (1)
reconsider; (2) stay discovery; and, alternatively, (3)
certify this order for interlocutory appeal. Dkt. 81.
Plaintiffs Boltex Manufacturing Company, L.P.
(“Boltex”) and Weldbend Corporation
“Plaintiffs”) responded. Dkt. 97. ONG replied.
Dkt. 98. Having considered the motions, response, reply, and
applicable law, the court is of the opinion that the motions
should be DENIED.
asks the court to reconsider its finding of specific
jurisdiction. Dkt. 81, Dkt. 75 (denying ONG's motion
to dismiss (Dkt. 19) under Federal Rule of Civil Procedure
12(b)(2)). Specifically, ONG argues that: (1) its email
responses to Texas customers cannot constitute commercial
advertising under the Lanham Act; (2) the Plaintiffs'
evidence did not support a prima facie case for personal
jurisdiction; and (3) the court did not analyze purposeful
availment. Dkt. 81 at 9. ONG also asks the court to stay
discovery pending resolution of the instant motion.
Id. Alternatively, ONG asks the court to certify
this order for interlocutory appeal if it denies the instant
motion or grants it and still finds that personal
jurisdiction exists. Id.
Motion to reconsider
ONG's email responses
again, ONG insists that the court cannot analyze specific
jurisdiction without deciding whether its email responses to
Texas customers count as commercial advertising under the
Lanham Act. Compare Dkt. 81 at 22-28,
with Dkt. 59 at 10. Once again, the court disagrees.
See Dkt. 75 at 6. The court will not superimpose the
Rule 12(b)(6) standard onto ONG's Rule 12(b)(2) motion.
Thus, this argument cannot support a grant of the instant
to ONG, Plaintiffs failed to make a prima facie case for
personal jurisdiction because the latter relied on Andrea
Galperti's deposition. Dkt. 81 at 9-10, 13. Even though
ONG cited to its CEO's affidavit in its own 12(b)(2)
motion, ONG asserts that because “Plaintiffs chose to
depose Mr. Galperti in his individual capacity, [and] not as
a corporate representative . . . his testimony does not bind
ONG nor does it represent ONG's position on a
topic.” Id. at 13; see also Dkt. 60
at 4-5, 9-10. ONG also asserts that Mr. Galperti “spoke
only in generalities and hypotheticals.” Dkt.
81 at 14.
Mr. Galperti's capacity does not impact whether
Plaintiffs met their burden. Nor does any divergence between
Mr. Galperti's affidavit and his testimony because the
court must resolve factual differences in the Plaintiffs'
favor. Johnston v. Multidata Sys. Int'l Corp.,
523 F.3d 602, 609 (5th Cir. 2008) (“conflicts between
the facts contained in the parties' affidavits must be
resolved in the plaintiff's favor for purposes of
determining whether a prima facie case for personal
jurisdiction exists”) (internal citation omitted;
emphasis in original). ONG failed to show that Plaintiffs
presented insufficient evidence to support a prima facie case
of specific jurisdiction. Therefore, this ground cannot
support a grant of the instant motion.
argues that the court analyzed specific jurisdiction without
addressing the purposeful availment prong. Dkt. 81 at 9,
16-22. ONG argues that its email responses cannot count under
that prong because it did not initiate the communications to
Texas customers. Id. at 18 (“Responding to an
email RFQ inquiry into whether the flanges can be normalized
without ONG initiating the communication or reaching into the
Texas forum does not provide [a] fair warning . . . that the
activity may subject [it] to the jurisdiction of a foreign
argue that ONG waived a purposeful availment challenge by
only addressing the nexus prong. Dkt. 97 at 14. Plaintiffs
also argue that ONG's emails count toward purposeful
availment because ONG willingly responded to Texas customers
via email, and because those communications contained the
allegedly false representations. Id. at 9. Both
parties cite the same case, Trois v. Apple Tree Auction