United States District Court, S.D. Texas, Galveston Division
REACTOR SERVICES INTERNATIONAL, INC. Plaintiff.
UNITED REFINING COMPANY Defendant.
MEMORANDUM AND RECOMMENDATION
M. EDISON UNITED STATES MAGISTRATE JUDGE
Reactor Services International, Inc. ("Reactor")
and Defendant United Refining Company ("United
Refining") entered into a Construction Agreement in
September 2017. Reactor claims that United Refining requested
Reactor perform additional work beyond the scope of the
contract, Reactor performed the work, and United Refining
refused to pay for the additional work.
originally filed this lawsuit in Texas state court in
Brazoria County, Texas, alleging causes of action for breach
of contract, fraud, and unjust enrichment. United Refining
timely removed this action to federal court. Reactor then
moved to remand to state court, arguing that the parties are
bound by a forum selection clause which establishes exclusive
venue in Brazoria County, Texas.
Construction Agreement states, in pertinent part, that United
Refining "covenants and agrees to pay to Contractor
Fixed and Firm Total Contract Price of $432, 862.50
PER YOUR QUOTATION #10-2990-REV. B [the
"Quotation"], [f]or the full and faithful
performance of all work covered by this Agreement. . .
." Dkt. 15-2 at 5 (emphasis in original). Reactor argues
that the Construction Agreement's reference to the
Quotation incorporates and adopts all the Quotation's
terms, including a forum selection clause. United Refining,
on the other hand, contends that the contractual language
specified above is insufficient to incorporate the entire
Quotation, including the forum selection clause, into the
conducting an evidentiary hearing, United States District
Court Judge George C. Hanks, Jr. denied Reactor's Motion
to Remand on January 18, 2019, finding that "[t]he
parties came to no meeting of the minds as to whether the
forum selection clause in 'the Quotation' (Dkt. 15-3
at 6) should be incorporated in to the Construction
Agreement." Dkt. 33 at 1. Moreover, Judge Hanks
specifically determined that "the parties have not
agreed to a forum selection clause." Id. at 2.
Refining has filed a Motion to Dismiss Pursuant to Federal
Rules of Civil Procedure 12(b)(2) and 12(b)(6) ("United
Refining's Motion to Dismiss"), arguing, among other
things, that this Court lacks both general and specific
personal jurisdiction over it. See Dkt. 18. United
Refining maintains that it is a Pennsylvania corporation with
its principal place of business in Pennsylvania, and that it
does not do any business in Texas, does not maintain a
principal place of business in Texas, and does not have any
offices or employees in Texas. Furthermore, United Refining
asserts that it does not own any property or assets in Texas,
does not maintain a bank account in Texas, and does not owe
taxes in Texas. United Refining's Motion to Dismiss was
referred to this Court by Judge Hanks for report and
recommendation. See Dkt. 34.
Federal Rule of Civil Procedure 12(b)(2), the "plaintiff
bears the burden of establishing a district court's
jurisdiction over a non-resident." Johnston v.
Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th
Cir. 2008). "A plaintiff must make a prima facie showing
that the defendant is subject to personal jurisdiction."
Barrow v. Sutton, No. H-14-200, 2014 WL 3485188, at
*2 (S.D. Tex. July 11, 2014).
is no dispute that this Court lacks personal jurisdiction
over United Refining. Indeed, in response to United
Refining's Motion to Dismiss, Reactor readily admits that
"this Court lacks both General and Specific Jurisdiction
[over United Refining] in this case." Dkt. 22 at 6.
Because personal jurisdiction does not exist, Reactor pins
its hopes on its claim that the parties agreed on a forum
selection clause to litigate any and all disputes in Brazoria
County, Texas. The problem with this argument is that this
Court has already found that there is no valid and
enforceable forum selection clause. As such, this Court must
dismiss this case under Rule 12(b)(2) for lack of personal
jurisdiction. Because this Court does not possess personal
jurisdiction over United Refining, this Court need not rule
on United Refining's Rule 12(b)(6) motion to dismiss.
reasons stated above, the Court RECOMMENDS that United
Refining's Motion to Dismiss be GRANTED. This Court
cannot exercise personal jurisdiction over United Refining.
The Clerk shall provide copies of this Memorandum and
Recommendation to the respective parties who have fourteen
days from the receipt thereof to file written objections
pursuant to Federal Rule of Civil Procedure 72(b) and General
Order 2002-13. Failure to file written objections within ...