United States District Court, W.D. Texas, Austin Division
THEODORE R. WINDECKER
HANG WEI, et al.
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN UNITED STATES MAGISTRATE JUDGE
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
the Court are Defendant Hang Wei's 12(b)(5) Motion to
Dismiss for Insufficient Service, 12(b)(2) Motion to Dismiss
for Lack of Personal Jurisdiction, and 12(b)(6) Failure to
State a Claim (Dkt. No. 27), the Response (Dkt. No. 30),
Reply (Dkt. No. 34), and Sur-Reply (Exh. A to Dkt. No.
The district judge referred the motion to the undersigned for
a report and recommendation pursuant to 28 U.S.C. §
636(b) and Rule 1(c) of Appendix C of the Local Rules.
suit for breach of contract arising out of Theodore
Windecker's sale of his ownership interest in a company
to a Chinese company's American subsidiary (China Vast
Int'l Ltd. and Windecker Aircraft Inc., respectively).
The suit was originally filed in state court, and was
subsequently removed to this Court. After removal, the
Defendants filed a motion to dismiss, which the Court granted
in part and denied in part. Specifically, the Court dismissed
Windecker's negligent misrepresentation and economic
duress claims against all Defendants for failure to state a
claim, but denied the motion seeking to dismiss the claims
against Windecker Aircraft Inc. for lack of personal
jurisdiction. In this motion, Hang Wei, the sole owner of
China Vast Int'l Ltd. (which in turn is the sole owner of
the Windecker Aircraft), requests that the Court dismiss the
case for: (1) insufficient service of process; (2) lack of
personal jurisdiction; and (3) failure to state a claim.
12(b)(5) allows a defendant to seek dismissal when the method
by which he was served is defective. Fed.R.Civ.P. 12(b)(5).
Once the defendant objects to the method of service by
identifying how the plaintiff's attempt at service was
defective, the burden shifts to the plaintiff to establish
that the method of service is proper. Freedom Watch, Inc.
v. Org. of the Pet. Exporting Countries (OPEC), 766 F.3d
74, 78 (D.C. Cir. 2014). “The general rule is that
‘[a] signed return of service constitutes prima facie
evidence of valid service, which can be overcome only by
strong and convincing evidence.'” People's
United Equip. Fin. Corp. v. Hartmann, 447 Fed.Appx. 522,
524 (5th Cir. 2011) (quoting O'Brien v. R.I.
O'Brien & Associates, Inc., 998 F.2d 1394, 1398
(7th Cir. 1993)). Thus, if the plaintiff meets the burden of
showing proper service, the burden shifts to the defendant to
present strong and convincing proof of insufficient service.
defendant who is not a resident of the suit's forum may
move to dismiss for lack of personal jurisdiction under Rule
12(b)(2). “If . . . the court rules on personal
jurisdiction without conducting an evidentiary hearing, the
plaintiff bears the burden of establishing only a prima
facie case of personal jurisdiction.” Sangha
v. Navig8 ShipManagement Private Ltd., 882 F.3d 96, 101
(5th Cir. 2018). “The district court is not obligated
to consult only the assertions in the plaintiff's
complaint in determining whether a prima facie case
for jurisdiction has been made. Rather, the district court
may consider the contents of the record at the time of the
motion. . . .” Id. (internal quotations and
citations omitted). “Although jurisdictional
allegations must be accepted as true, such acceptance does
not automatically mean that a prima facie case for
[personal] jurisdiction has been presented.”
Id. The plaintiff must prove that the court has
jurisdiction over the defendant with regard to each claim.
Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d
266, 275 (5th Cir. 2006).
federal court sitting in diversity may exercise personal
jurisdiction over a non-resident defendant if (1) the
state's long-arm statute permits an exercise of
jurisdiction over that defendant, and (2) an exercise of
jurisdiction would comport with the requirements of the Due
Process Clause of the Fourteenth Amendment. Sangha,
882 F.3d at 101; McFadin v. Gerber, 587 F.3d 753,
759 (5th Cir. 2009), cert. denied, 131 S.Ct. 68
(2010). Because the requirements of Texas's long-arm
statute are coextensive with the requirements of the Due
Process Clause, the sole inquiry is whether this Court's
exercise of personal jurisdiction over the Defendants would
be consistent with due process. Id. The Supreme
Court has articulated a two-part test to determine whether a
federal court sitting in diversity may properly exercise
personal jurisdiction over a nonresident defendant: (1) the
nonresident must have sufficient “minimum
contacts” with the forum state, and (2) subjecting the
nonresident to jurisdiction in the forum state must not
offend traditional notions of “fair play and
substantial justice.” McFadin, 587 F.3d at 759
(citing Int'l Shoe Co. v. Wash., 326 U.S. 310,
316 (1945)). A defendant's “minimum contacts”
may give rise to either specific or general personal
jurisdiction, depending on the nature of the suit and
defendant's relationship to the forum state. Jackson
v. Tanfoglio Giuseppe, S.R.L., 615 F.3d 579, 584 (5th
Circuit, specific personal jurisdiction is a claim-specific
inquiry; a plaintiff bringing multiple claims that arise out
of different forum contacts must establish specific
jurisdiction for each claim. McFadin, 587 F.3d at
759. Specific jurisdiction applies when a nonresident
defendant “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.” Walk Haydel & Assocs., Inc. v.
Coastal Power Prod. Co., 517 F.3d 235, 243 (5th Cir.
2008). The touchstone of specific-jurisdiction analysis is
“whether the defendant's contact shows that it
reasonably anticipates being haled into court.”
McFadin, 587 F.3d at 759. Even a single contact can
support specific jurisdiction if it creates a
“substantial connection” with the forum.
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475
n.18 (1985). Specific jurisdiction “focuses on the
relationship among the defendant, the forum, and the
litigation.” Sangha, 882 F.3d at 103 (quoting
Monkton Ins. Servs. v. Ritter, 768 F.3d 429, 432-33
(5th Cir. 2014). Due process requires that specific
jurisdiction be based on more than the “random,
fortuitous, or attenuated” contacts a defendant makes
by interacting with people affiliated with the forum state.
Walden v. Fiore, 571 U.S. 277, 286 (2014). The
plaintiff thus “cannot be the only link between the
defendant and the forum. Rather, it is the defendant's
conduct that must form the necessary connection with the
forum State that is the basis for its jurisdiction over
him.” Id. at 285.
Rule 12(b)(6) allows a party to move to dismiss an action for
failure to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). In deciding a Rule 12(b)(6) motion to
dismiss for failure to state a claim, “[t]he court
accepts all well-pleaded facts as true, viewing them in the
light most favorable to the [nonmovant].” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007) (internal quotation marks omitted), cert.
denied, 552 U.S. 1182 (2008). While a complaint attacked
by a Rule 12(b)(6) motion does not need detailed factual
allegations in order to avoid dismissal, the plaintiff's
factual allegations “must be enough to raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Supreme
Court has explained that a court need not accept as true
conclusory allegations or allegations stating a legal
conclusion. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A complaint must contain sufficient facts “to
state a claim to relief that is plausible on its face.”
Id. (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the [nonmovant]
pleads factual content that allows the court to draw the
reasonable inference that the [movant] is liable for the
misconduct alleged.” Id.
Service of Process
complains first that Windecker's service of the suit on
him was deficient. Windecker served Hang by having a process
server leave a copy of the petition and summons with
Hang's wife, at a home in North Carolina owned by Hang
and his wife. Windecker contends that this was sufficient
under Rule 4(e)(2)(B), as he left “a copy of [the
summons and complaint] at [Hang's] dwelling or usual
place of abode with someone of suitable age and discretion
who resides there [Hang's wife].” Fed.R.Civ.P.
4(e)(2)(B). Hang's primary contention is that Windecker
could not serve him at the North Carolina house, but was
instead required to serve him pursuant to the Hague
Convention because Hang is a national of the Peoples Republic