United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE, UNITED STATES DISTRICT JUDGE
Vecron Exim Ltd. ("Vecron" or
"Plaintiff") filed this action against defendants
XPO Logistics, Inc. and XPO Global Forwarding, Inc.
(collectively, "XPO"), Afif Baltagi
("Baltagi"), and Production Tire Company
(collectively, "Defendants") alleging that
Defendants (and others not parties to this action) engaged in
a conspiracy to defraud Plaintiff through purchase and sale
transactions for off-the-road mining tires
("Tires"). Plaintiff alleges that Jason Adkins
("Adkins"), the owner of Landash Corporation
("Landash"), approached Plaintiff seeking purchase
order financing for a transaction between a buyer and seller
for purchase of thirty-six Tires. Adkins represented to
Plaintiff that the seller was Mid America and the buyer was
Production Tire.Plaintiff alleges that Adkins was already
the owner of the thirty-six Tires, and that the entire
transaction (and accompanying fraudulent documents) was a
sham orchestrated to defraud Plaintiff.
before the court are Production Tire Company's Motion to
Dismiss for Lack of Personal Jurisdiction ("Production
Tire's Motion to Dismiss") (Docket Entry No. 17) and
Defendant XPO's Amended Motion for Leave to Designate
Responsible Third Parties ("XPO's Motion to
Designate RTPs") (Docket Entry No. 51). For the reasons
explained below, Production Tire's Motion to Dismiss will
be denied and XPO's Motion to Designate RTPs will be
Production Tire's Motion to Dismiss
Production Tire argues in its Motion to Dismiss that the
court lacks both specific and general personal jurisdiction
over it.The court permitted Plaintiff to conduct
jurisdictional discovery. After deposing Production Tire's
corporate representative, Hector Esquijerosa
("Esquijerosa"), and obtaining documents from
Production Tire, Plaintiff filed its Amended Opposition to
Production Tire's Motion to Dismiss on January 25,
2019.Production Tire filed its Reply to
Plaintiff's Amended Opposition on February 4,
Standard of Review
Dismissal for lack of personal jurisdiction is governed by
Federal Rule of Civil Procedure 12(b)(2). When a defendant
moves to dismiss for lack of personal jurisdiction under Rule
12(b)(2), "the plaintiff 'bears the burden of
establishing the district court's jurisdiction over the
defendant.'" Quick Technologies, Inc. v. Sage
Group PLC, 313 F.3d 338, 343 (5th Cir. 2002), cert.
denied, 124 S.Ct. 66 (2003) (quoting Mink v. AAAA
Development LLC, 190 F.3d 333, 335 (5th Cir. 1999)).
"When the district court rules on a motion to dismiss
for lack of personal jurisdiction 'without an evidentiary
hearing, the plaintiff may bear his burden by presenting a
prima facie case that personal jurisdiction is
proper.'" Id. (quoting Wilson v.
Belin, 20 F.3d 644, 648 (5th Cir.), cert,
denied, 115 S.Ct. 322 (1994)). "In making its
determination, the district court may consider the contents
of the record before the court at the time of the motion,
including 'affidavits, interrogatories, depositions, oral
testimony, or any combination of the recognized methods of
discovery.'" Id. at 344 (quoting
Thompson v. Chrysler Motors Corp., 755 F.2d 1162,
1165 (5th Cir. 1985)) .
court must accept as true the uncontroverted allegations in
the plaintiff's complaint and must resolve in favor of
the plaintiff any factual conflicts. Guidry v. United
States Tobacco Co., Inc., 188 F.3d 619, 625 (5th Cir.
1999). However, the court is not obligated to credit
conclusory allegations, even if uncontroverted. Panda
Brandywine Corp. v. Potomac Electric Power Co., 253 F.3d
865, 869 (5th Cir. 2001) . "Absent any dispute as to the
relevant facts, the issue of whether personal jurisdiction
may be exercised over a nonresident defendant is a question
of law. ..." Ruston Gas Turbines, Inc. v. Donaldson
Co., Inc., 9 F.3d 415, 418 (5th Cir. 1993).
court may exercise personal jurisdiction over a nonresident
defendant if "(1) the forum state's long-arm statute
confers personal jurisdiction over that defendant; and (2)
the exercise of personal jurisdiction comports with the Due
Process Clause of the Fourteenth Amendment." McFadin
v. Gerber, 587 F.3d 753, 759 (5th Cir. 2009), cert,
denied, 131 S.Ct. 68 (2010). Since the Texas long-arm
statute extends as far as constitutional due process allows,
the court considers only the second step of the inquiry.
of personal jurisdiction over a nonresident defendant
comports with federal due process guarantees when the
nonresident defendant has established minimum contacts with
the forum state, and the exercise of jurisdiction "does
not offend * traditional notions of fair play and substantial
justice.'" International Shoe Co. v. State of
Washington, Office of Unemployment Compensation and
Placement, 66 S.Ct. 154, 158 (1945) (quoting
Milliken v. Meyer, 61 S.Ct. 339, 343 (1940)). A
plaintiff satisfying these two requirements raises a
presumption that exercise of jurisdiction over the defendant
is reasonable, and the burden shifts to the defendant to
present "a compelling case that the presence of some
other considerations would render jurisdiction
unreasonable." Burger King Corp. v. Rudzewicz,
105 S.Ct. 2174, 2185 (1985). "The 'minimum
contacts' inquiry is fact intensive and no one element is
decisive; rather the touchstone is whether the
defendant's conduct shows that [he] 'reasonably
anticipate[d] being haled into court'" in the forum.
McFadin, 587 F.3d at 759. "There are two types
of 'minimum contacts': those that give rise to
specific personal jurisdiction and those that give rise to
general personal jurisdiction." Lewis v.
Fresne, 252 F.3d 352, 358 (5th Cir. 2001).
may exercise general jurisdiction over non-resident
defendants "when their affiliations with the State are
so * continuous and systematic' as to render them
essentially at home in the forum State." Goodyear
Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846,
2851 (2011). "Establishing general jurisdiction is
'difficult' and requires 'extensive contacts
between a defendant and a forum.'" Sangha v.
Navig8 ShipManagement Private Limited, 882 F.3d 96,
101-02 (5th Cir. 2018) (quoting Johnston v. Multidata
Systems International Corp., 523 F.3d 602, 609 (5th Cir.
2008)). Vague allegations "that give no indication as to
the extent, duration, or frequency of contacts are
insufficient to support general jurisdiction."
Johnston, 523 F.3d at 610.
may exercise specific jurisdiction when the alleged injuries
arise from or are directly related to the non-resident
defendant's contacts with the forum state. Gundle
Lining Construction Corp. v. Adams County Asphalt, Inc.,
85 F.3d 201, 205 (5th Cir. 1996) (citing Helicopteros
Nacionales de Colombia, S.A. v. Hall, 104 S.Ct. 1868,
1872 n.8 (1984)); Quick Technologies. 313 F.3d at
344. To determine whether specific jurisdiction exists, the
court must "examine the relationship among the
defendant, the forum, and the litigation to determine whether
maintaining the suit offends traditional notions of fair play
and substantial justice." Gundle Lining, 85
F.3d at 205. Even a single contact can support specific
jurisdiction if the defendant "'purposefully avails
[himself] of the privilege of conducting activities within
the forum State, thus invoking the benefits and protections
of its laws.'" Burger King, 105 S.Ct. at
2183. "The non-resident's 'purposeful
availment' must be such that the defendant 'should
reasonably anticipate being haled into court' in the
forum state." Ruston Gas, 9 F.3d at 419 (citing
World-Wide Volkswagen Corp. v. Woodson, 100 S.Ct.
559, 567 (1980)).
are three parts to a purposeful availment inquiry. First,
only the defendant's contacts with the forum are
relevant, not the unilateral activity of the plaintiff or a
third party. Sangha, 882 F.3d at 103 (citing
Walden v, Fiore, 134 S.Ct. 1115, 1122 (2014)
("We have consistently rejected attempts to satisfy the
defendant-focused 'minimum contacts' inquiry by
demonstrating contacts between the plaintiff (or third
parties) and the forum State.")). Second, the contacts
relied upon must be purposeful rather than random,
fortuitous, or attenuated. Id. (citing
Walden, 134 S.Ct. at 1123) . Lastly, the defendant
must seek some benefit, advantage, or profit by availing
itself of the jurisdiction. Burger King, 105 S.Ct.
at 2183. Since specific jurisdiction is claim specific, a
plaintiff bringing multiple claims that arise out of
different contacts of the defendant with the forum must
establish specific personal jurisdiction for each claim.
Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d
266, 274 (5th Cir. 2006) .