Opinion
Civil Action No. 3:02-CV-2598-R.
October 29, 2004
MEMORANDUM OPINION AND ORDER
Before this Court is DEFENDANT FOKKER SERVICES BV'S RESPONSE TO PLAINTIFF'S COMPLAINT PURSUANT TO RULE 12 OF THE FEDERAL RULES OF CIVIL PROCEDURE (filed, in Joint Motion Submission Format, October 8, 2004). For the reasons discussed below, Defendant's Motion to Dismiss is GRANTED and Plaintiff's Motion for Leave to Conduct Discovery is DENIED.
I. BACKGROUND
In this case, Plaintiff DDH Aviation, LLC ("DDH") filed suit against multiple Defendants, including Fokker Services, Inc. ("Fokker Services"), Fokker Services BV ("Fokker BV"), Stork NV ("Stork"), Transasian Air Holdings Ltd. ("Transasian"), and International Aviation Holdings Ltd. ("IAH"), mainly for violations of the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68. DDH makes thirteen claims against Fokker BV, including three claims of mail fraud, four claims of wire fraud, two claims of Travel Act violations, breach of fiduciary duty, constructive fraud, conversion, and fraud. Fokker BV moves for dismissal under Rules 12(b)(2) as well as Rules 12(b)(4), (5) and 41(b) of the Federal Rules of Civil Procedure.Plaintiff's claims against Fokker BV arise out of the sale of an aircraft and the subsequent removal and relocation of its engines and Auxiliary Power Unit. According to Plaintiff, DDH purchased an aircraft from Transasian on June 13, 2000 and stored it in the Netherlands. Plaintiff asserts it was unaware of the following facts at the time of the sale: (1) Transasian owed the Fokker entities $1 million for past services and aircraft storage, and (2) the purchased aircraft's engines were defective. Plaintiff claims that in October 2000, after Plaintiff had purchased the aircraft, Transasian and IAH worked with the Fokker entities to remove at least one engine from the aircraft without DDH's approval. In March 2001, the Fokker entities allegedly removed the Auxiliary Power Unit from DDH's aircraft and placed it in another aircraft. In April 2001, Fokker BV and Transasian entered an agreement in which Fokker BV would, on behalf of Transasian, make a payment to a company located in Texas for the purchase of a Rolls Royce Spey engine. The agreement further provided that two months later, upon receipt of payment in full from Transasian, Fokker BV would transfer the engine to Transasian. The Rolls Royce Spey engine, then, replaced an engine that had been removed from DDH's aircraft.
Defendant's Motion argues that this Court lacks specific jurisdiction over it because it has had no physical contacts with the State of Texas, and it has not purposefully availed itself of the forum. Defendant argues that Plaintiff likewise cannot establish this Court's general jurisdiction over it because Fokker Services does not conduct and has not in the past conducted business in Texas. Specifically, Defendant states that it has never conducted any business with Plaintiff. Furthermore, Defendant urges that this Court's exercise of personal jurisdiction would offend traditional notions of fair play and substantial justice. In short, Defendant argues that Plaintiff asserts no basis for jurisdiction.
In response to Defendant's Motion to Dismiss on 12(b)(2) grounds, Plaintiff argues that Fokker BV purposefully availed itself of the court's jurisdiction through direct contacts with Texas.
II. ANALYSIS
Defendant Fokker Services BV moves this Court to dismiss the claims against it on two grounds: first, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of personal jurisdiction; second, pursuant to Rules 12(b)(4), (5) and 41(b) of the Federal Rules of Civil Procedure for failure to timely comply with service of process rules.
A. Personal Jurisdiction Standard
Rule 12(b)(2) authorizes a motion to dismiss based on the defense that a court lacks jurisdiction over the defendant. A federal court sitting in diversity may exercise personal jurisdiction over nonresident defendants to the extent permitted by applicable state law. Fed.R.Civ.P. 4(e)(1). The Texas long-arm statute provides for jurisdiction to the fullest extent permitted by the U.S. Constitution. See Tex. Civ. Prac. Rem. Code. Ann. § 17.042 (West 1997); Panda Brandywine Corp. v. Potomac Electric Power Co., 253 F.3d 865, 867 (5th Cir. 2001) (citing Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990)). Under the Due Process Clause of the Fourteenth Amendment, jurisdiction over a nonresident defendant comports with due process if: "(1) that defendant has purposefully availed himself 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, 253 F.3d at 868 (quoting Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir. 2000) (citations and internal quotation marks omitted)).
Minimum contacts can be established through contacts sufficient for either specific or general jurisdiction. Specific jurisdiction over a nonresident corporation is proper, "when that corporation has purposefully directed its activities at the forum state and the litigation arises from alleged injuries that arise out of or relate to those activities." Alpine View, 205 F.3d at 215 (quoting Burger King v. Rudzewicz, 471 U.S. 462, 472 (1985) (internal quotation marks omitted)). General jurisdiction arises "when the nonresident defendant's contacts with the forum state, although not related to the plaintiff's cause of action are continuous and systematic." Id. (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16 (1984)).
Plaintiff makes no claim that Defendant Fokker Services' contacts with the forum state are continuous and systematic, so this Opinion will not address general jurisdiction.
This Court considers Defendant's motion to dismiss without conducting an evidentiary hearing. Thus, to survive Defendant's Motion, Plaintiff has the burden of "produc[ing] sufficient facts as to make out only a prima facie case supporting jurisdiction." Id. In determining whether or not Plaintiff has made a prima facie case, this Court "must accept as true [Plaintiff's] uncontroverted allegations, and resolve in its favor all conflicts between the facts contained in the parties' affidavits and other documentation." Id. Although a lower standard than that needed to prevail at trial, the Fifth Circuit noted in Panda Brandywine that the lower burden of proof:
does not automatically mean that a prima facie case for specific jurisdiction has been presented. Establishing a prima facie case still requires the plaintiff to show the nonresident defendant's purposeful availment of the benefits and protections of and minimum contacts with the forum state.Panda Brandywine, 253 F.3d at 868 (citing Burger King, 471 U.S. at 474). Mere "conclusory allegations" without any suggestion of supporting facts are insufficient. Id. at 869.
B. Specific Jurisdiction
To show minimum contacts sufficient to support specific jurisdiction, Plaintiff must show both that Fokker BV purposefully directed its activities at Texas and that "the litigation arises from alleged injuries that arise out of or relate to those activities." Alpine View, 205 F.3d at 215. Plaintiff identifies two contacts on which it bases its prima facie case for jurisdiction: (1) a contract entered by Transasian, acting as agent for Fokker BV, for the purchase of a Rolls Royce Spey engine from a company located in Texas, and (2) an alleged phone conversation between Dennis Debo, an officer and employee of DDH, and a representative of Fokker BV. Having considered both identified contacts, this court fails to find contacts sufficient to support specific jurisdiction. Each contact argued by the Plaintiff is addressed in turn.
Plaintiff moves that the contract Transasian, who allegedly was acting as agent for Fokker BV, entered into with a Texas company to purchase the replacement engine establishes specific jurisdiction. Relying solely on the affidavit of Debo, one of its employees and officers, Plaintiff supplies no explanation of its claim that Transasian was acting as Fokker BV's agent beyond Debo's blanket assertion. No evidence confirms Plaintiff's conclusory allegation that Fokker BV purposefully directed its activities at the State of Texas. Moreover, even if Fokker BV itself had entered into this contract, the injuries alleged by DDH do not arise out of or relate to the sale of a Rolls Royce Spey engine from a Dallas corporation. Rather, they arise out of the fraudulent removal of parts from DDH's aircraft, which was located in the Netherlands. The transaction referenced establishes no "contact" by which this Court may exercise jurisdiction.
The second alleged contact that Plaintiff claims establishes specific jurisdiction is a phone conversation between Debo and a representative of Fokker BV. Again, Plaintiff relies solely on Debo's affidavit to conclude that Debo had a conversation "on at least one occasion" between June 2000 and March 2001 regarding the sale of the engine at issue. Defendant Fokker BV denies this allegation and states that it was not until July 11, 2002, over a year after Transasian's purchase of the engine the Debo called Fokker BV. As discussed above, even if such conversation(s) took place, the injuries alleged by DDH do not arise out of or relate to the purchase of this engine, but rather out of the allegedly fraudulent removal of parts from DDH's aircraft. Even Debo's affidavit, the only evidence Plaintiff provides of such a conversation, clearly and specifically asserts that the conversation did not discuss the removal of any parts from DDH's aircraft. As such, the conversation referenced establishes no "contact" by which this Court may exercise jurisdiction.
This Court finds that Plaintiff has failed to establish a prima facie case for the exercise of specific jurisdiction over Defendant. As Plaintiff's claims against Fokker BV have been dismissed for lack of personal jurisdiction, this Court need not address its claims on 12(b)(4), (5), and 41(b) grounds.
III. CONCLUSION
For the reasons discussed above, Defendant's Motion to Dismiss is hereby GRANTED. Plaintiff's Motion for Leave to Conduct Discovery related to this motion is DENIED. Accordingly, Plaintiff's claims against Defendant Fokker Services BV are dismissed with prejudice.It is so ORDERED.