United States District Court, W.D. Texas, Waco Division
ORDER GRANTING DEFENDANT TIMBERLINE CONSTRUCTION,
INC. AND HIGH VOLTAGE, INC.'S MOTION TO DISMISS PURSUANT
TO RULE 12(b)(2), 12(b)(3), 12(b)(5) AND THE COLORADO RIVER
ALBRIGHT, UNITED STATES DISTRICT JUDGE.
the Court is Defendants Timberline Construction, Inc.'s
(“Timberline”) and High Voltage, Inc.'s
(“HVI”) motion to dismiss. ECF No. 16. The
defendants request the Court dismiss under Rule 12(b)(2),
12(b)(3), and 12(b)(5) Id. at ¶ 1. After
carefully reviewing the related pleadings and the relevant
law, the Court is of the opinion Defendants' motion to
dismiss should be GRANTED for the following
Sayers Construction, LLC, (“Sayers”) filed its
complaint asking the Court to vacate a Florida arbitration
award on May 28, 2019. ECF No. 1. Plaintiff filed a Motion to
Vacate that same day. ECF No. 6. Plaintiff filed an amended
complaint on July 2, 2019. ECF No. 13. Defendants specially
appeared and filed their motion to dismiss on July 17, 2019.
ECF No. 16. Plaintiff filed a response on August 13, 2019.
ECF No. 20. Defendants filed a reply to Plaintiff's
response on August 28, 2019. ECF No. 23.
a limited liability company formed in Texas, contracted with
Timberline, a South Dakota corporation, and HVI, a Utah
corporation, to perform a construction project in Florida.
ECF No.6 at ¶ 2. The work continued from April 2016
through March of 2017, until Timberline stopped work on the
project because of a payment dispute. ECF No.16 at ¶ 2.
Before the dispute, Sayers and Timberline entered into a
Master Agreement for Contract Services, which contained a
Texas choice-of-law clause and an arbitration clause. ECF
No.1, Ex. C, at ¶¶ 38, 51. Soon after the time of
the breach, Timberline and HVI filed a Demand for Arbitration
pursuant to the contract that controlled the parties project.
ECF No.16 at ¶ 2. The American Arbitration Association
(“AAA”) set Mr. John Vento to preside over the
arbitration in Coral Gables, Florida. Id. On
February 25, 2019, Mr. Vento issued the First Interim
Arbitration Award in favor of Timberline and HVI in an amount
of $8, 602, 525.10. ECF No.1, Ex. A. Mr. Vento then issued a
Second Interim Arbitration Award for attorney's fees and
costs in the amount of $951, 321.58. Id., Ex. B.
28, 2019, Sayers filed its Original Complaint and Application
to Vacate Interim Arbitration Awards to this Court. ECF No.
1. In its amended complaint, Sayers alleged that the
arbitration award should be vacated pursuant to 9 U.S.C.
§ 10(a)(2), (a)(3), and (a)(4). Id., at ¶
9. Sayers alleged that Mr. Vento had acted with evident
partiality due to his failure to disclose professional
relationships with counsel, was guilty of misconduct by
awarding attorneys' fees, and exceeded his powers for the
arbitration award by awarding amounts not subject to the
agreement entered into by Sayers and Timberline/HVI. ECF
No.6. Timberline and HVI then filed a motion to
dismiss pursuant to Federal Rules of Civil Procedure
12(b)(2), (b)(3), (b)(5), and the Colorado River
abstention. ECF No. 16. Because the Court finds the personal
jurisdiction issue dispositive, the Court will not address
the Defendants other arguments for dismissal.
defendant may assert lack of personal jurisdiction as a
defense. Fed R. Civ. P. 12(b)(2). When the defendant is a
nonresident of the forum state, the district court considers
first whether exercising jurisdiction over the defendant
comports with due process. Religious Tech. Ctr. v.
Liebreich, 339 F.3d 369, 373 (5th Cir.2003).
If the requirements of due process are met, the court then
applies the jurisdictional “long-arm” statute of
the forum state. Id. The Texas long-arm statute has
been interpreted to extend to the limit of due process.
Id. As such, the two inquiries are the same for
district courts in Texas. Id.; see also Tex. Civ.
Prac. & Rem. Code §§ 17.001- .093.
process requires a nonresident defendant be subject to the
personal jurisdiction of the forum. World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 291 (1980). The Court
applies a two-pronged test to determine whether a federal
court may properly exercise jurisdiction over a nonresident
defendant: (1) the nonresident must have minimum contacts
with the forum state, and (2) subjecting the nonresident to
jurisdiction must be consistent with “traditional
notions of fair play and substantial justice.”
Int'l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945); Freudensprung v. Offshore Technical Servs.,
Inc., 379 F.3d 327, 343 (5th Cir.2004).
defendant's “minimum contacts” may give rise
to either specific personal jurisdiction or general personal
jurisdiction, depending on the nature of the suit and the
defendant's relationship to the forum state.
Freudensprung, 379 F.3d at 343. “A court may
exercise specific jurisdiction when (1) the defendant
purposely directed its activities toward the forum state or
purposely availed itself of the privileges of conducting
activities there; and (2) the controversy arises out of or is
related to the defendant's contacts with the forum
state.” Id. Even when the controversy is not
related to the defendant's contacts with the forum state,
however, a court may exercise general jurisdiction over the
defendant if the defendant has such “continuous and
systematic contacts” that the defendant is essentially
at home. Id. If the nonresident defendant's
contacts do not rise to the threshold of sufficient
“minimum contacts”, the court may not exercise
personal jurisdiction over that defendant. Int'l
Shoe, 326 U.S. at 316.
plaintiff has the burden of making a prima facie case
demonstrating the nonresident defendant has sufficient
“minimum contacts” with the forum state to
justify the state's exercise of personal jurisdiction.
Freudensprung, 379 F.3d at 343. If the plaintiff
makes a prima facie case, the burden shifts to the defendant
to show such an exercise offends due process because it is
inconsistent with traditional notions of fair play and
substantial justice. Id. Finally, when a court rules
on a 12(b)(2) motion to dismiss for lack of personal
jurisdiction without holding an evidentiary hearing, it must
view the alleged facts in the light most favorable to the
non-movant, and resolve all factual disputes in its favor.
Guidry v. U.S. Tobacco Co., 188 F.3d 619, 625 (5th
case, the Court need only analyze whether specific personal
jurisdiction exists. It is evidently clear from the record
that neither Timberline nor HVI are ...