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Chowdhury v. Harvell

United States District Court, N.D. Texas, Dallas Division

July 31, 2019

JOHN HARVELL, Defendant.

         Referred to U.S. Magistrate Judge [1]



         Before the Court for recommendation are Defendant John Harvell's Motion to Dismiss, filed December 21, 2018 (doc. 4), and Plaintiff's Motion for Partial Summary Judgment, filed January 15, 2019 (doc. 13). Based on the relevant filings and applicable law, the defendant's motion should be GRANTED, and the plaintiff's motion should be DENIED as moot.

         I. BACKGROUND

         On October 29, 2018, Shamim Chowdhury (Plaintiff) filed this pro se action for breach of fiduciary duty against his former attorney, John Harvell (Defendant), in state court. (doc. 1-1 at 2-3.)[2] He seeks actual damages, exemplary damages, and attorney's fees. (doc. 12 at 7.)

         On February 26, 2015, Plaintiff, a resident of Richardson, Texas, was arrested in Kansas “ on pretense of a false felony charge.” (doc. 12 at 2, 4.) He was charged with stalking after having been served a protection order prohibiting contact. (Id. at 4, 8-9.) Defendant, a Kansas attorney with a law office in Kansas, was hired by Plaintiff's spouse to represent him in his criminal case. (Id. at 3.) Plaintiff alleges that Defendant was aware that Plaintiff “had no criminal history and the charge was false, ” but he did not challenge the false charge in any way, nor “did he care to notify [Plaintiff] about the false charge.” (Id. at 4-5.) He asserts that Defendant “committed a set of tort[i]ous acts” while he represented him, “which clearly proves that he breached his fiduciary duty owed to [him], by breaching his duty of reasonable care and undivided loyalty.” (Id. at 3.) He claims that Defendant helped the prosecuting attorney add a fraudulent bail condition requiring GPS monitoring for Plaintiff and hold him financially responsible for the GPS monitoring fee. (Id. at 2.) He contends that Defendant “failed to meet his obligation to mail attorney client case file” to his address in Texas after multiple requests. (Id.)

         Plaintiff alleges that Defendant “made continuous and systematic communication and took multiple payments from Plaintiff with complete knowledge and understanding that Plaintiff was a resident of Texas.” (Id.) He claims that his cause of action“arises directly out of [Defendant's] contact with [him] in Texas, ” and alleges that Defendant “made multiple fraudulent telecommunication[s] with [Plaintiff] regarding [the] case status and facts.” (Id.) He also contends that in helping the prosecuting attorney obtain GPS monitoring for him, Defendant “had complete knowledge that this monitoring would occur in [Plaintiff's] forum state” of Texas. (Id.)

         Defendant's affidavit states that he is a resident of Kansas, has his only office in Kansas, and has never maintained an office or place of business in Texas. (doc. 6 at 3.) He is licensed to practice law in Kansas and Missouri, and has never been licensed to practice law in Texas or engaged in the practice of law in Texas. (Id.) He represented Plaintiff in a criminal case in Kansas, performed all work for Plaintiff in Kansas, and made or received all communications with Plaintiff in Kansas . (Id. at 4.) Defendant never traveled to Texas, and all meetings between him and Plaintiff occurred in Kansas. (Id.) Defendant avers that he never: entered into an agreement with Plaintiff to perform services in Texas; advertised in Texas; recruited Texas residents as clients; entered into any personal transactions in Texas; employed anyone within Texas; maintained a registered agent for service of process in Texas; owned or controlled any real or personal property in Texas; held any bank accounts, telephone numbers, addresses, or tangible assets in Texas; had any past or present obligation to pay taxes in Texas; had been previously sued in Texas or availed himself of the jurisdiction of Texas courts; served as a director, officer, member, or partner of a Texas corporation, partnership, or limited liability company; or owned a controlling interest in a Texas company. (Id. at 4-5.) His declaration concludes that he “did not purposely avail [himself] of the benefits and protections of Texas law” and “would not have expected to be haled into a Texas court” as a result of his representation of Plaintiff, and that it “would be significant burden” for him to travel to Texas to defend himself because it “would disrupt [his] legal practice and representation of [his] clients.” (Id. at 5.)

         On December 14, 2018, Defendant removed this case to federal district court on the basis of diversity jurisdiction. (doc. 1 at 1-4.) On December 21, 2018, he moved to dismiss this action against him for lack of personal jurisdiction, or in the alternative, for failure to state a claim; Plaintiff did not file a response. (docs. 4-6.)[3] On January 15, 2019, Plaintiff filed his motion for summary judgment, and Defendant responded on February 5, 2019. (docs. 13-14; 19-20.)

         II. RULE (12)(b)(2)

         Defendant moves to dismiss this action under Rule 12(b)(2) for lack of personal jurisdiction. (doc. 5 at 10-21.)

         The exercise of personal jurisdiction over a non-resident defendant is proper when: (1) the non-resident is subject to jurisdiction under the laws of the state in which the court sits; and (2) the exercise of jurisdiction over the defendant comports with the due process requirements of the United States Constitution. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-74 (1985); Panda Brandywine Corp. v. Potomac Electric Power Co., 253 F.3d 865, 867 (5th Cir. 2001) (per curiam). A defendant is amenable to the personal jurisdiction of a federal court sitting in diversity to the same extent as a state court in the same forum. Pedelahore v. Astropark, Inc., 745 F.2d 346, 347 (5th Cir. 1984); see also Fed. R. Civ. P. 4(e)(1), 4(h)(1). Because the Texas long-arm statute authorizes the exercise of personal jurisdiction to the extent allowed by the due process clause of the Fourteenth Amendment, only the federal due process inquiry need be addressed. Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999); Tex. Civ. Prac. & Rem. Code Ann. § 17.041 et seq. (West 2012). “Exercising personal jurisdiction over a nonresident defendant is compatible with due process when (1) that defendant has purposefully availed [itself] of the benefits and protections of the forum state by establishing minimum contacts with the forum state, and (2) the exercise of jurisdiction over that defendant does not offend traditional notions of fair play and substantial justice.” Panda Brandywine Corp., 253 F.3d at 867.

         The “minimum contacts” prong of the analysis is satisfied when a defendant “purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958). The nonresident defendant's availment must be such that the defendant “should reasonably anticipate being haled into court” in the forum state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). There are two types of minimum contacts: those giving rise to general jurisdiction and those giving rise to specific jurisdiction. Clemens v. McNamee, 615 F.3d 374, 378 (5th Cir. 2010), cert. denied, 131 S.Ct. 3091 (2011). General jurisdiction exists where the nonresident's contacts with the forum state are unrelated to the cause of action but are “continuous and systematic.” Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 (1984); Alpine View Co. Ltd. v. Atlas Copso AB, 205 F.3d 208, 215 (5th Cir. 2000). Specific jurisdiction is appropriate where the nonresident has purposefully directed its activities at the forum state and the “litigation results from alleged injuries that arise out of or relate to those activities.” Alpine View Co. Ltd., 205 F.3d at 215 (quoting Burger King Corp., 471 U.S. at 472) (internal quotation marks omitted). It is a claim-specific inquiry and requires less pervasive contacts with the forum state than general jurisdiction. McFadin v. Gerber, 587 F.3d 753, 759 (5th Cir. 2009). The plaintiff has the burden of establishing minimum contacts. WNS, Inc. v. Farrow, 884 F.2d 200, 203 (5th Cir. 1989).

         Where, as here, no evidentiary hearing is conducted, the plaintiff need only make a prima facie showing in support of jurisdiction. Central Freight Lines Inc. v. APA Transport Corp., 322 F.3d 376, 381 (5th Cir. 2003). The plaintiff's uncontroverted factual allegations in the complaint must be accepted as true, and all factual disputes contained in the parties' affidavits must be resolved in its favor. Alpine View Co., Ltd., 205 F.3d at 215; Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990). ...

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