United States District Court, S.D. Texas, Houston Division
J.D. Fields & Co., Inc., Plaintiff,
Shoring Engineers, Defendant.
MEMORANDUM OPINION AND ORDER
H. Miller, Senior United S H. District Judge.
before this court is defendant Shoring Engineers's
(“Shoring”) motion to dismiss for lack of
personal jurisdiction and improper venue (Dkt. 5). Plaintiff
J.D. Fields and Company, Inc. (“J.D. Fields”)
responded. Dkt. 12. Shoring replied, and J.D. Fields filed a
sur-reply. Dkt. 14 (Shoring's reply); Dkt. 15-1 (J.D.
Field's sur-reply). Having considered the motions,
responses, replies, and applicable law, the court is of the
opinion that the motion to dismiss (Dkt. 5) should be DENIED.
a breach of contract case. Shoring is incorporated and has
its principal place of business in California, while J.D.
Fields is incorporated and has its principle place of
business in Texas. Dkt. 1 at 2. In January 2017, Shoring
requested that J.D. Fields locate and supply specially
fabricated steel piling for a project at the Los Angeles
International Airport. Dkt. 1-1 at 3; Dkt. 5 at 5. J.D.
Fields subsequently sent Shoring a price quote for the piling
on company letterhead, which included J.D. Fields's
Houston office address. Dkt. 1-1 at 4; Dkt. 5 at 5. The price
quote expressly stated that “[o]nly a fully executed
purchase agreement shall be binding.” Dkt. 12-4 at 2.
March 20, 2017, a Shoring representative emailed J.D. Fields
and asked what Shoring would need to do for J.D. Fields to
“hold that pipe.” Dkt. 12-3 at 3. A J.D. Fields
representative responded that if Shoring replied to the quote
with a signature, J.D. Fields would hold the piling until
Shoring produced a formal purchase order. Id. A
Shoring representative signed the quote, wrote
“ACCEPTED” on the document, and sent the document
back to J.D. Fields. Dkt. 12-4. However, Shoring never
executed a formal purchase order.
after receiving the signed quote, J.D. Fields sent Shoring a
credit application. Id. Shoring executed the credit
application, also on J.D. Fields letterhead, and returned the
application to J.D. Fields. Dkt. 5 at 27. On March 24, J.D.
Fields notified Shoring that Shoring's credit application
had been approved. Dkt. 12-5 at 2. The credit notification
included J.D. Fields's General Terms and Conditions of
Sale (“GTCs”). Id. The GTCs expressly
provided, in bold type, that “every sale by [J.D.
Fields] shall in every case be subject to these terms and
conditions to the exclusion of any other terms.”
Id. at 3. The GTCs also included the following
2.1 CHOICE OF FORUM
All actions or proceedings either directly or indirectly
arising from or related to this contract or transaction,
regardless of whether grounded in contract, tort, or any
other legal theory, shall be brought only in State or
Federal Court in Harris County in the State of
Texas, and Buyer hereby consents and submits to the
exclusive jurisdiction and venue of such courts for the
purpose of such actions or proceedings.
Id. (emphasis added). On April 13, a J.D. Fields
representative emailed Shoring on same email chain that
Shoring used to send the March 20 signed quote. Dkt. 24-8 at
2. J.D. Fields asked if Shoring was “still good
on” the pipe for which Shoring had previously signed.
Dkt. 12-2 at 4; Dkt. 24-8 at 2. Shoring replied that
“[y]es, the other pipe is still good.” Dkt. 12-2
at 4; Dkt. 24-8 at 2. On April 19, J.D. Fields paid a
third-party distributor, JCD International Services
(“JCD”), approximately $193, 000 as a partial
up-front payment to fill Shoring's order. Dkt. 12-2 at 5;
Dkt. 24-2 at 4.
following months, Shoring made multiple requests for changes
to the order and provided fabrication instructions in
furtherance of the contract. Dkt. 12 at 11. However, in July
2017, Shoring informed J.D. Fields that Shoring was
repudiating the contract and would not take delivery of the
pilings as previously agreed. Id. To date, Shoring
has paid J.D. Fields $50, 019 in damages. Dkt. 12-2 at 5.
J.D. Fields alleges that this payment only covers a
“fraction” of its damages. Id.
Fields filed suit in the 269th Judicial District Court of
Harris County, Texas, alleging breach of contract and
promissory estoppel. Dkt. 1. Shoring removed the action to
this court. Id. Shoring then filed a Rule 12(b)
motion to dismiss for lack of personal jurisdiction and
improper venue. Dkt. 5.
Standard of Review
Rule 12(b)(2) Motion to Dismiss for Lack of Personal
must dismiss an action when it lacks personal jurisdiction
over the defendant. Fed.R.Civ.P. 12(b)(2). When a
non-resident defendant moves to dismiss for lack of personal
jurisdiction, the resident plaintiff has the burden of
establishing personal jurisdiction over the nonresident.
Lewis v. Fresne, 252 F.3d 352, 358 (5th Cir. 2001).
When a district court rules on personal jurisdiction without
an evidentiary hearing, the plaintiff must make a prima facie
showing of jurisdiction, and the court may consider the
entire contents of the record, including affidavits.
Quick Techs., Inc. v. Sage Grp. PLC, 313 F.3d 338,
344 (5th Cir. 2002). “The allegations of the complaint,
except insofar as controverted by opposing affidavits, must
be taken as true, and all conflicts in the facts must be
resolved in favor of the plaintiffs for purposes of
determining whether a prima facie case for personal
jurisdiction has been established.” Thompson v.
Chrysler Motors Corp., 755 F.2d ...