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finding that corporation was not subject to specific jurisdiction solely because it was registered to sell securities in forum state in the absence of allegation that defendant engaged in any fraudulent activity in state
Summary of this case from Hunt v. Enzo Biochem, Inc.Opinion
Case No. 3:01-CV-294-X
August 9, 2001
MEMORANDUM OPINION ORDER
Before the Court are:
(1) Defendants Goss and Dirks Company Inc.'s Motion to Dismiss, filed March 19, 2001; Plaintiffs' Response, filed July 12, 2001; and
(2) Defendant Schneider's Motion to Dismiss, initially filed March 16, 2001; full briefing in support of that Motion filed July 13, 2001; and Schneider's Reply filed July 27, 2001. The Court considers Plaintiffs' July 12, 2001 Response to be a Response to Schneider's Motion as well, in the absence of any separate responsive filing within the 20 days of Schneider's July 13, 2001 briefing. For the reasons stated below, the Court GRANTS Defendants Goss, Dirks Company, and Schneider's Motions to Dismiss for lack of personal jurisdiction. The Court DENIES Schneider's July 27, 2001 Motion to Partially Strike the Cobb Affidavit submitted by Plaintiffs.
I. Background
This case involves an attempt to collect on a judgment previously obtained by Plaintiffs in a fraudulent securities transaction case against Defendant RAS Securities Corporation and an individual defendant not party to this action. In the underlying litigation, the Plaintiffs obtained a multimillion dollar judgment in the 191st Judicial District Court in Dallas County. The present action was removed to federal court pursuant to this Court's diversity jurisdiction.
Plaintiffs allege that a variety of other actors should share in Defendant RAS Corp.'s liability, based on a variety of theories, including alter ego liability, illegal purpose liability, fraudulent transfers, and piercing the corporate veil. Plaintiffs' complaint primarily involves allegations that the presently named defendants have siphoned off and diverted assets from RAS Securities Corporation to prevent Plaintiffs from collecting on their judgment, and that the present defendants are functionally the same entity as RAS. Plaintiffs' Response Brief expands on these allegations, and maintains that all of the Defendants named in the present collection action should be collectively labeled "FAB" because they are all functionally the same entity. Pls.' Resp. Br. at 3. Defendants Goss, Dirks Company, and Schneider were not named as Defendants in the underlying litigation.
In their motions to dismiss, Defendants Goss, Dirks Company, and Schneider contest this Court's personal jurisdiction over them. Defendant Goss is a resident of Connecticut. Defendant Dirks Company is incorporated under the laws of the State of New York, and has its primary place of business in New York. Defendant Schneider is a resident of New York. Defendants have adequately refuted the potential bases for personal jurisdiction present in Plaintiffs' complaint and Response to the Motions to Dismiss. The prima facie evidence (as opposed to unsubstantiated allegations) contained in Plaintiffs' Response is insufficient to support this Court's exercise of personal jurisdiction.
II. Analysis
The Texas long-arm statute extends to the fullest constitutional limits. See Tex. Civ. Prac. Rem. Code Ann. § 17.042. To establish that a court has personal jurisdiction over a party, the plaintiff must show (1) that the defendant has "purposefully availed himself of the benefits and protections of the forum state by establishing minimum contacts," and (2) that the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. Wilson v. Belin, 20 F.3d 644, 647 (5th Cir. 1994) (citations omitted). Minimum contacts may be established by showing contacts that are specific to the dispute, or contacts that are "continuous and systematic," giving rise to general jurisdiction. Id.
"It is well settled that specific jurisdiction may arise without the nonresident defendant's ever stepping foot upon the forum state's soil or may arise incident to the commission of a single act directed at the forum. The appropriate inquiry is whether the defendant purposefully availed [itself] of the privilege of conducting activities in-state, thereby invoking the benefits and protections of the forum state's laws." Bullion v. Gillespie, 895 F.2d 213, 216 (5th Cir. 1990). When specific jurisdiction is at issue, "a court must examine the relationship among the defendant, the forum, and the litigation." Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1171 (5th Cir. 1985).
The plaintiff bears the burden of proving the Court's personal jurisdiction over a nonresident defendant. See Bullion, 895 F.2d at 216-17. When the Court reaches its decision without an evidentiary hearing, plaintiffs "need only present facts sufficient to constitute a prima facie case of personal jurisdiction." Id. at 217 (citing WNS, Inc. v. Farrow, 884 F.2d 200, 203 (5th Cir. 1989)); see also Felch v. Transportes Lar-Mex, 92 F.2d 320, 326 (5th Cir. 1996). Under this framework, "uncontroverted allegations in the plaintiff's complaint are taken as true, and conflicts between the facts contained in the parties' affidavits must be resolved in the plaintiff's favor for purposes of determining whether a prima facie case of personal jurisdiction exists." Construction Aggregates, Inc. v. Senior Commodity Co., S.A.M., 860 F. Supp. 1176, 1178 (E.D. Tex. 1994)( citing Bullion, 895 F.2d at 217). Evidence needed to make out a prima facie case is minimal, but some evidence is required. See Southern Bleacher Co., Inc. v. Husco, Inc., 2001 WL 497772, *6 (N.D. Tex. May 7, 2001) (discussing the showing necessary to establish alter ego personal jurisdiction). In the present case, Plaintiffs have not made a prima facie showing of personal jurisdiction with respect to any of the three Defendants moving to dismiss.
A. Defendant Dirks Company, Inc.
1. Direct Contacts by Dirks Company
Defendant Dirks Company is a securities trading firm, although no party has provided a particularly thorough description of the nature of its business. Dirks Company's relationship to RAS Securities Corp. ("FAB") is not immediately apparent as there is no allegation that it is part of the same corporate family. The basic thrust of Plaintiffs' allegations against Dirks Company is that it was the recipient of many of the now-defunct RAS Corp.'s assets, and that it received those assets in an attempt to defraud Plaintiffs, who are RAS Corp.'s judgment creditors.
Plaintiffs have failed to make a prima facie showing that this Court has personal jurisdiction over Dirks Company. First, Plaintiffs have not alleged or supplied facts showing the existence of general jurisdiction over Defendant Dirks Company. The unrefuted Affidavit of Jessy Dirks, sole shareholder of Dirks Company, demonstrates the absence of general jurisdiction. See Goss and Dirks Motion to Dismiss, Exh. C. Dirks Company does not have offices in Texas, or maintain a registered agent here. See Dirks Aff. ¶ 3. Plaintiffs point to evidence that Dirks Company participated in the public offerings of multiple companies in Texas. See Pls.' Resp. Br. at 6 n. 10; Pls.' App., Exh. 7 (Requests 128-139). There is absolutely no evidence showing Dirks Company's role in those public offerings, and no explanation why this participation involved sufficient availment of the laws of Texas to make Dirks Company properly subject to Texas jurisdiction for all purposes. There is no evidence indicating when, or during what period of time, those transactions took place. It is therefore impossible to determine whether any contacts have been continuous and systematic.
Plaintiffs provide evidence that Dirks Company is "registered to sell securities in Texas," and conclude that this means Dirks has consented to jurisdiction in Texas. See Pls.' Resp. Br. ¶ 22; Pls.' App., Exh. 7 (Request for Admission No. 111). If there is some reason that such registration evidences consent to general jurisdiction, Plaintiffs have not explained it to the Court. Even uncontroverted facts must still "be sufficient to affirmatively show personal jurisdiction." Felch, 92 F.3d at 327 n. 16. Plaintiffs have not identified what procedure Dirks Company went through to become registered, whether Dirks's bare "Admission No. 111" implicates registration by the State of Texas or some other licensing entity, or what form(s) Dirks Company might have signed to evidence its consent to jurisdiction. Certainly no signed writing evidencing consent to jurisdiction in Texas has been supplied as part of Plaintiffs' prima facie evidence. Plaintiffs may be attempting to generate an inference, without any evidence, authority or clear statement, that Dirks Company signed Form BD (Uniform Application for Broker-Dealer Registration). Even if that were a reasonable inference to draw from Dirks Company's narrowly phrased admission, and the Court does not believe that it is, it is still not clear that Form BD includes consent to personal jurisdiction in Texas for all causes of action, or only causes of action more directly connected to the sale of securities or commodities.
The Court emphasizes that Plaintiffs do not state that Dirks Company signed a Form BD. They do not say what a "Form BD" is. They do not provide an example of a Form BD or quote its jurisdictional consent language.
Second, the Court lacks specific jurisdiction over Defendant Dirks Company by virtue of any contacts with Texas related to this litigation. Taking as true Plaintiffs' allegations that Dirks Company knowingly received and held RAS Corp.'s assets, there is still no allegation that Dirks Company did anything related to this case in Texas. The mere fact that Defendant Dirks's allegedly tortious actions may have had their impact on Plaintiffs in Texas is insufficient. General fraud and conspiracy allegations, without suggestion of a "'a single activity by [the Defendant] which was a part of this alleged conspiracy or fraud and which took place in Texas,'" will not support the Court's exercise of personal jurisdiction. See Star Tech., Inc. v. Tultex Corp., 844 F. Supp. 295, 299 (N.D. Tex. 1993)(Kendall, J.) (quoting Deininger v. Deininger, 677 F. Supp. 486, 493 (N.D. Tex. 1988)); see also Thomas v. Kadish, 748 F.2d 276, 282 (5th Cir. 1984); J.C. Hawkins v. Upjohn Co., 890 F. Supp. 601-08 (E.D. Tex. 1994).
Furthermore, even if the theory that the damages from Dirks Company's behavior were felt in Texas is legally sufficient to support specific personal jurisdiction, the Dirks Affidavit places the "prima facie" evidentiary burden back on Plaintiffs to show the existence of the behavior creating the specific contact with Texas. Jessy Dirks swears that Defendant Dirks has not received assets from RAS, nor has Dirks ever held any assets on behalf of RAS. See Dirks Aff. ¶ 4. Plaintiffs have not provided any prima facie evidence to the contrary. The assertion of wrongdoing contained in the Cobb Affidavit is too conclusory and vague to be of any probative value on this point. See Cobb Aff. ¶ 9 ("On information and belief, defendants in this action have simply moved on to the next reincarnation of their securities business, taking clients, accounts, brokers, officers and directors with them and leaving behind an empty shell"). Defendant Dirks Company has therefore adequately refuted any specific jurisdiction theory based on where the damages from tortious conduct were felt.
2. Alter Ego Theory against Dirks Company, Inc.
When a court finds one company to be the alter ego of another, the court may exercise personal jurisdiction over that company based on the other company's contacts. See Gundle Lining Constr. Corp. v. Adams County Asphalt, Inc., 85 F.3d 201, 208 (5th Cir. 1996); Toshiba Int'l Corp. v. Fritz, 993 F. Supp. 571, 574 (S.D. Tex. 1998). Courts generally demand proof that one business entity is controlling another in order to fuse the two corporations for jurisdictional purposes. See Hargrave v. Fireboard Corp., 710 F.2d 1154, 1160 (5th Cir. 1983).
The Court assumes, for the purposes of the present Motions to Dismiss only, that RAS Corp. is subject to personal jurisdiction in Texas as Defendants have not contested that link in the alter ego chain of argument.
In the present case, Plaintiffs allege that the court should "disregard the corporate fiction and hold Defendant Dirks liable for the obligations of RAS as the corporate entity of the affiliate is being used as a sham to perpetrate a fraud and avoid liability." Pls.' Compl. ¶¶ 5.03, 6.03. Plaintiffs have failed to make a prima facie case that Dirks Company and RAS are not truly separate corporate entities or that one is only a business conduit of the other. Even though Plaintiffs use many of the catch-words associated with piercing the corporate veil and alter ego liability, they fail to attribute any specific actions to Dirks Company, but speak generally of "Defendants." See Pls.' Compl. ¶¶ 7.01-02. At best, the evidence Plaintiffs point to in the present case shows that after RAS failed as a going concern, a number of RAS employees became employees at Dirks, and that in some instances those employees brought their customers and corresponding customer accounts with them. See Pls.' Resp. Br. at 21 nn. 40-42. These facts, assumed to be true, are not evidence that RAS and Dirks Company are one and the same company, or that one company was used or controlled by the other. There is no evidence that RAS or Dirks Company had ownership interests in each other, or overlapping management that would allow one to use the other for illegal purposes or as a sham.
The Dirks Affidavit and Motion to Dismiss maintain that Dirks Company is a separate corporate entity from RAS, and does not have overlapping ownership and control with RAS. Neither company is a shareholder of the other, or has any ownership interest in the other. See Dirks Aff. ¶ 4. More fundamentally, the Dirks Affidavit contains a denial that Dirks Company ever even received assets from RAS. See Dirks Aff. ¶ 4. Plaintiffs have failed to respond to these contentions or make any prima facie showing to the contrary.
Although the Court is without the benefit of briefing or comment from Plaintiffs on the choice of law issue, the Court believes that New York law governs the question of whether the corporate entities of RAS and Dirks Company should be disregarded. See House v. 22 Texas Services, Inc., 60 F. Supp.2d 602, 609 (S.D. Tex. 1999) (law of the state of incorporation applies to whether the corporate entity should be disregarded). Regardless of whether New York or Texas principles governing the separateness of corporate institution from individuals or separate business entities apply, Plaintiffs have not made a prima facie case that Dirks Company is the alter ego of RAS for jurisdictional purposes. See Western Horizon Drilling, Inc. v, Jonnet Energy Corp., 11 F.3d 65, 67-68 (5th Cir. 1994); Gundle Lining, 85 F.3d at 208-09; Williams v. Wilson, 939 F. Supp. 543, 549-50 (W.D. Tex. 1995) (discussing the types of facts necessary under Texas law to make a prima facie showing of personal jurisdiction under an alter ego theory); see also Wm. Passalacqua Builders, Inc. v. Resnick Developers South, Inc., 933 F.2d 131, 137-38 (2d Cir. 1991) (outlining scope and factors of alter ego theory under New York law). On the present facts, Dirks Company, even if a wrongdoer, was a separate corporate entity from RAS. Personal jurisdiction over RAS may not be imputed to Dirks Company if they were in fact organizationally separate and did not control each other, even if they jointly engaged in wrongdoing toward Plaintiffs (which the prima facie evidence currently on record does not show).
The Court GRANTS Defendant Dirks Company's Motion to Dismiss for lack of personal jurisdiction.
B. Defendant Goss
Defendant Goss is a former President of RAS, and was also a securities principal there. He was not a Defendant in the underlying lawsuit against RAS Corp. Plaintiffs' general contention against Defendant Goss is that he participated in siphoning assets from the defunct RAS Corp. and otherwise should be subject to this Court's jurisdiction on the theory that jurisdiction over RAS Corp. should be imputed to him.
Plaintiffs do not allege any facts tending to suggest that Goss has sufficient contacts with the state of Texas that this Court may exercise general jurisdiction over him. Goss's Affidavit supports his contention that this Court cannot exercise general personal jurisdiction over him. See Goss Aff. ¶¶ 2, 6-13. Defendant Goss is not a resident of Texas, does not own property here, does not pay taxes here, and has not visited Texas since 1958. Id. Goss also maintains that he has not committed any tort, in whole or in part, in Texas. Goss Aff. ¶ 7. Moreover, as discussed above, it is not clear that receipt of fraudulently transferred funds, with impacts felt in Texas, is in itself sufficient contact to trigger specific personal jurisdiction. Plaintiffs have not refuted the Goss Affidavit or responded to it in any way. Absent a prima facie showing by Plaintiffs to the contrary, neither general nor specific jurisdiction is proper over Goss by virtue of his own contacts with Texas.
Apparently, Plaintiffs' personal jurisdiction theory with respect to Goss is instead that, notwithstanding his lack of direct contact with the state of Texas, he used the RAS corporate form as a sham or alter ego to engage in the wrongdoing that injured the Texas Plaintiffs. See Pls.' Compl. ¶ 2.01. Assuming that this Court has personal jurisdiction over RAS, the fiduciary shield doctrine precludes the use of such a theory to exercise personal jurisdiction over Defendant Goss absent a prima facie showing that Goss is an alter ego of RAS.
"The general rule is that jurisdiction over an individual cannot be predicated upon jurisdiction over a corporation." See Stuart v. Spademan, 772 F.2d 1185, 1198 (5th Cir. 1985). Under the fiduciary shield doctrine, "an individual's transaction of business within the state solely as a corporate officer does not create personal jurisdiction over that individual though the state has in personam jurisdiction over the corporation." Id. at 1197. Some courts have held that it offends notions of fair play and substantial justice to force employees, who conduct business by phone or mail in numerous states on behalf of their employers, to defend lawsuits in those states in their individual capacities. See Saktides v. Cooper, 742 F. Supp. 382, 387 (W.D. Tex. 1990). However, "courts have recognized an exception to this rule when the corporation is the alter ego of the individual. In these cases, courts attribute a corporation's contacts with the forum state to an individual for jurisdictional purposes." Stuart, 772 F.2d at 1198.
In the present case, the fiduciary shield doctrine is initially triggered because it appears that Plaintiffs seek to attribute Defendant RAS Corp.'s contacts with Texas to Goss. However, the exception to the fiduciary shield doctrine is unavailing. Assuming Plaintiffs have adequately pled that Goss is an alter ego of RAS, see Pls.' Compl. ¶¶ 4.02-06, Plaintiffs have not made a prima facie showing of that allegation. In his affidavit, Goss states that he was never an owner, shareholder, or profit-sharer in RAS. He asserts that he has never held any assets of RAS. See Goss Aff. ¶ 4. Such averments seriously undercut "jurisdiction by veil-piercing" or alter ego theories, since Goss is not likely to have been using the RAS corporate form to his own ends in light of those facts. Plaintiffs' Response to the Motion to Dismiss does not contain any facts whatsoever to support a theory that RAS's contacts with Texas should be attributed to Goss.
Even if the fiduciary shield doctrine does not apply, and with respect to Goss's alleged actions after the period of his employ at RAS, Plaintiffs have not made a prima facie showing that Goss is an alter ego of RAS. He denies the commission of any tort that could give rise to specific jurisdiction, and denies any ongoing relationship with RAS. Goss Aff. ¶ 7.
The Court GRANTS Defendant Goss's Motion to Dismiss for lack of personal jurisdiction.
C. Defendant Schneider
Defendant Schneider was RAS Corp.'s principal shareholder prior to 1998. Plaintiffs' theory with regard to Schneider is that he participated in the improper liquidation of, and diversion of assets from, RAS Corp. when it failed. While Plaintiffs' theory for piercing the corporate veil to reach Schneider is unclear, it appears to involve allegations that RAS Corp. was inadequately capitalized.
First, there are no allegations or prima facie evidence to support the exercise of general jurisdiction over Defendant Schneider by virtue of his own personal contacts with the State of Texas. See Schneider Aff. ¶ 4. Plaintiffs supply no prima facie evidence that Schneider has visited Texas, or otherwise has had continuous and systematic contacts with the state. Plaintiffs allege Schneider, on an unspecified number of occasions, spoke with RAS employees who were working in Texas. See Pls.' Br. at 6. As discussed above, the fiduciary shield doctrine provides that contacts made in the scope of one's employment do not generate personal jurisdiction. There are no allegations or evidence that these calls were systematic and continuous, even if it is proper to consider them as contacts Schneider himself had with Texas.
Second, there are no allegations or prima facie evidence to support the exercise of specific jurisdiction over Defendant Schneider by virtue of his own conduct in connection with the present litigation. Schneider denies that he was part of, or committed any tort, related to the instant litigation. See Schneider Aff. 1 5. He denies having ever had any contact with the Plaintiffs or Texas relating to the underlying litigation or the present collection effort. The communications discussed above do not appear to have involved any transaction related to the instant litigation. Plaintiffs have supplied no prima facie evidence to the contrary.
Finally, the Court considers a theory that jurisdiction over RAS should be extended to Schneider because he was the principle shareholder of RAS. Schneider has denied improper use of the corporate form, improper diversion of assets, and inadequate capitalization. See Schneider Aff. 11 6-7. Plaintiffs fail to counter these sworn denials with any prima facie evidence to support any theory of piercing the corporate veil to reach Schneider for jurisdictional purposes. Plaintiffs claim that, "Schneider sold the shell corporation to persons now unknown for minimal sums; particularly in relationship to the state court judgment now held by Plaintiffs." Pls.' Resp. Br. at 21. There is no evidence to support this claim. Plaintiffs' additional allegations concerning Schneider are somewhat difficult to follow, see Pls.' Resp. Br. ¶ 28, and demonstrate a lack of understanding of the facts that must be shown for the Court to disregard corporate formalities and attribute jurisdiction over a corporation to an individual. Furthermore, Plaintiffs repeatedly attempt to shift the burden of proof back onto Defendant Schneider, suggesting that Schneider must provide proof of adequate capitalization to avoid veil piercing. Id. Given Schneider's denials of any basis for veil-piercing, the prima facie burden is on Plaintiffs.
The Court GRANTS Defendant Schneider's Motion to Dismiss for lack of personal jurisdiction.
III. Conclusion
For the reasons stated above, Plaintiffs have failed to meet their burden of showing that this Court has personal jurisdiction over Defendants Dirks Company, Inc., Robert Goss, or Robert Schneider. The Court GRANTS the Motions to Dismiss Plaintiffs' claims against those Defendants without prejudice, for lack of personal jurisdiction. The Court DENIES Schneider's July 27, 2001 Motion to Partially Strike the Cobb Affidavit submitted by Plaintiffs.
SO ORDERED.