United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE
action brought by plaintiffs proceeding pro se and
removed from a state court in Dallas County, see
Dkt. No. 1, has been referred to the undersigned United
States magistrate judge for pretrial management under 28
U.S.C. § 636(b) and an order of reference from United
States District Judge Sam A. Lindsay, see Dkt. No.
Skopos Financial, LLC, Dan Porter, Mark Gallas, and Jerry
Kroshus (collectively, the “Moving Defendants”)
move to dismiss Plaintiffs Angelia Smith and Kelvin
Smith's claims against Koshus for lack of personal
jurisdiction under Federal Rule of Civil Procedure 12(b)(2)
and insufficient service of process under Federal Rule of
Civil Procedure 12(b)(5) and Plaintiffs' claims against
the Moving Defendants for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). See Dkt.
Nos. 4 & 5.
Court entered an order advising the Smiths of the legal
standards governing Rule 12(b)(2), 12(b)(5), and 12(b)(6)
motions and setting a deadline for them to respond to the
motion to dismiss. See Dkt. No. 8. They failed to
file a response, no reply brief was filed, and the filing
deadlines have expired. See id.
undersigned enters these findings of fact, conclusions of
law, and recommendation that the Court should grant the
motion to dismiss to the extent and for the reasons explained
Smiths filed this action in state court on July 26, 2018,
asserting that, in August 2017, Skopos illegally repossessed
Angelia's 2014 Mitsubishi Lancer. See Dkt. No.
1-1 at 8-9; see also Id. at 16-17 (“There are
several different causes of action that Skopos Financial
violates against the Plaintiffs, ” including under the
“Fair Debt Collection Practices Act” (the
“FDCPA”)). An amended petition, adding the
remaining Moving Defendants, appears to have been filed on
July 31, 2018. See Dkt. No. 1-1 at 29. And Skopos
timely removed this action on the basis of a federal
question. See Dkt. No. 1, ¶ 3 (citing 28 U.S.C.
§§ 1331 & 1441(b)); 28 U.S.C. § 1446(b).
removal, the Smiths filed on November 28, 2018 - and
presumably in response to the motion to dismiss - a third
amended complaint. See Dkt. No. 9.
Federal Rule of Civil Procedure 15(a)(1) allows a party to
“amend its pleading once as a matter of course, ”
as applicable here, the Smiths' amended complaint was due
“21 days after service of” the motion to dismiss.
Fed.R.Civ.P. 15(a)(1)(B). That motion was served on August
31, 2018. See Dkt. No. 4. But the third amended
complaint was filed almost three months later. See
Dkt. No. 9.
separate obstacle also prevent the Smiths' amending their
complaint as a matter of course - their filing an amended
petition in state court prior to removal. See, e.g.,
Charla G. Aldous v. Lugo, No. 3:13-cv-3310-L, 2014 WL
3952670, at *6 (N.D. Tex. Aug. 12, 2014) (“As
Plaintiffs filed an Amended Petition on July 30, 2013, in
state court, this court does not believe that [Rule 15(a)(1)]
applies. This is so because removed cases must be considered
in accordance with Federal Rule of Civil Procedure 81(c)(1),
which states that the Federal Rules of Civil Procedure
‘apply to a civil action after it is removed from a
state court.' Therefore, once the action was removed, the
plain language of Rule 15(a) applied to this action. As
Plaintiffs had already amended once, they could not file an
amended pleading without Defendants' written consent or
leave of court. Fed.R.Civ.P. 15(a)(2).”).
such, the third amended complaint [Dkt. No. 9] “is a
nullity, ” id., which will be ignored by the
undersigned in entering these findings, conclusions, and
recommendation, cf. Ferris Plaza, Ltd. v. Peerless Indem.
Ins. Co., No. 3:10-cv-633-L, 2010 WL 2540826, at *2
(N.D. Tex. June 22, 2010) (“Plaintiff's First
Amended Complaint[, filed without complying with Rule 15, ]
is null and the court must look to Plaintiff's Original
Petition filed in state court on February 25, 2010.”).
Federal Rule of Civil Procedure 12(b)(2)
non-resident defendant moves to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of establishing
that the court has jurisdiction over the nonresident. See
Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 431
(5th Cir. 2014); Johnston v. Multidata Sys. Int'l
Corp., 523 F.3d 602, 609 (5th Cir. 2008). If the court
decides the matter without an evidentiary hearing, the
plaintiff may meet its burden by presenting a prima facie
case for personal jurisdiction. See Gardemal v. Westin
Hotel Co., 186 F.3d 588, 592 (5th Cir. 1999); Wilson
v. Belin, 20 F.3d 644, 648 (5th Cir. 1994).
federal district court may exercise personal jurisdiction
over a non-resident defendant if (1) the long-arm statute of
the forum state permits the exercise of personal jurisdiction
over the defendant and (2) the exercise of jurisdiction by
the forum state is consistent with due process under the
United States Constitution. See Mullins v. TestAmerica,
Inc., 564 F.3d 386, 398 (5th Cir. 2009). “As the
Texas long-arm statute extends as far as constitutional due
process allows, we only consider the second step of the
inquiry.” McFadin v. Gerber, 587 F.3d 753, 759
(5th Cir. 2009).
process component of personal jurisdiction requires two
elements: (1) the nonresident must have some minimum contact
with the forum such that the he or she could anticipate being
haled into the courts of the forum state, and (2) it must be
fair or reasonable to require the nonresident to defend the
suit in the forum state. See Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474-78 (1985); Johnston v.
Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th
Cir. 2008). The Due Process Clause ensures that persons have
“fair warning that a particular activity may subject
[them] to the jurisdiction of a foreign sovereign.”
Burger King, 471 U.S. at 472 (internal quotation
marks omitted). Personal jurisdiction must be assessed on an
individual-defendant basis. See Rush v. Savchuk, 444
U.S. 320, 332 (1980).
to establish minimum contacts with the forum, a non-resident
defendant must do some act by which he “purposefully
avails himself of the privilege of conducting activities
within the forum State, thus invoking the benefits and
protections of its laws.” Burger King, 471
U.S. at 474-75 (internal quotation marks omitted). But the
unilateral activity of one asserting a relationship with the
non-resident defendant does ...