Opinion
Civil Action No. 3:00-CV-2529-D
February 22, 2001
MEMORANDUM OPINION AND ORDER
In this removed action, defendants Andre Lisbon ("Andre") and Tova Lisbon ("Tova"), husband and wife, move to dismiss the claims against them for lack of in personam jurisdiction. For the following reasons, the court grants their motion.
Tova is sued as "Toby" Lisbon. See Pet. ¶ 2.
I
Plaintiff John R. Norris III, Administrator of the Estate of Alfred Freddy Lisbon, Deceased ("Norris"), sues Andre and Tova seeking a declaratory judgment characterizing the ownership of the Estate of decedent Alfred Freddy Lisbon ("Alfred") in a Salomon Smith Barney brokerage account held in the name Alfred, Andre, and Tova as joint tenants with right of survivorship. Pet. ¶ 8. Norris asserts that Salomon Smith Barney paid the account proceeds to Andre and Tova, id. ¶ 6, and that they have contended the account assets are their sole property, id. ¶ 7.
After removing the case from probate court based on diversity of citizenship, Andre and Tova now move to dismiss this action for lack of in personam jurisdiction, contending that they lack minimum contacts with the state of Texas. They filed their motion on December 22, 2000. Under this court's local civil rules, Norris' response was due January 11, 2001. See N.D. Tex. Civ. R. 7. l(e). He has not responded and the motion is now ripe for decision.
II A
The determination whether a federal district court has in personam jurisdiction over a nonresident defendant is bipartite: the court ascertains whether the law of the state in which it sits confers jurisdiction over the person of the defendant; if it does, the court then decides whether the exercise of jurisdiction would comport with the basic due process requirements of the United States Constitution. See InterFirst Bank Clifton v. Fernandez, 844 F.2d 279, 282 (5th Cir.), modified on other grounds, 853 F.2d 292 (1988). Because the Texas long-arm statute extends to the limits of due process, Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L. C., 815 S.W.2d 223, 226 (Tex. 1991), the court considers only whether exercising jurisdiction over Andre and Tova satisfies the due process requirements imposed by the United States Constitution. See InterFirst Bank, 844 F.2d at 282.
The due process inquiry can also be divided into two parts: the first is whether the nonresident defendant purposefully established "minimum contacts" with Texas; if so, the second is whether the exercise of jurisdiction results in "fair play and substantial justice." Id. (quoting Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 105 (1987); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985)).
A defendant's contacts with the forum may support either specific or general jurisdiction over the defendant. See id. at 283. A court has specific jurisdiction if the suit arises out of or is related to the defendant's contacts with the forum state. Id. A court may exercise general jurisdiction, even if the suit does not arise out of contacts with the forum state, if the defendant has maintained "continuous and systematic" contacts with the forum. Id.
The court need not address whether general jurisdiction exists. Nothing in Norris' petition suggests the existence of the continuous, systematic contacts necessary to support general jurisdiction.
The unilateral activity of a plaintiff cannot form the basis for the exercise of jurisdiction over a nonresident defendant. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298 (1980). Rather, the nonresident must purposefully avail himself of the benefits and protections of the forum's laws. See id. at 297. The defendant's contacts with the forum state must be such that he should "reasonably anticipate being haled into court there." Id.; see also Union Carbide Corp. v. UGI Corp., 731 F.2d 1186, 1190 (5th Cir. 1984).
Where, as here, the court considers the motion to dismiss without conducting an evidentiary hearing, plaintiff, as the party who seeks to invoke this court's jurisdiction, shoulders only the burden of proving a prima facie case for jurisdiction. See Bullion v. Gillespie, 895 F.2d 213, 216-17 (5th Cir. 1990). "Plaintiffs typically carry the burden of proof on personal jurisdiction by making a prima facie showing. The district court usually resolves the jurisdictional issue without conducting a hearing." Ham v. La Cienega Music Co., 4 F.3d 413, 415 (5th Cir. 1993) (footnote omitted). The uncontroverted allegations of plaintiff's complaint are to be taken as true and conflicts between the facts contained in the parties' affidavits must be resolved in plaintiff's favor for the purpose of determining whether a prima facie case for personal jurisdiction exists. See Brown v. Flowers Indus., Inc., 688 F.2d 328, 332 (5th Cir. 1982).
B
The court need only address whether Norris has made a prima facie showing that defendants have sufficient minimum contacts with Texas.
Norris has not asserted in his probate court petition a specific basis for this court to exercise in personam jurisdiction over Andre and Tova. Cf. Pet. ¶ 2. Even had he done so, by failing to respond to defendants' motion, he has left uncontroverted the allegations of Andre's affidavit that contradict the existence of minimum contacts. See Andre Decl. ¶¶ 2, 10. Defendants' unrefuted evidence is sufficient to preclude the court from exercising jurisdiction over them. Because the minimum contacts prong is not satisfied, the court need not examine whether the second prong of the due process analysis is met.
Defendants' counsel is reminded that Rule 7.1(i)(1) requires that evidence of this type be included in an appendix. See id. ("A party who relies on documentary (including an affidavit, declaration, deposition, answer to interrogatory, or admission) or non-documentary evidence to support or oppose a motion must include such evidence in an appendix."). Additionally, the brief must cite the appendix. See Rule 7.2(e) ("If a party's motion or response is accompanied by an appendix, the party's brief must include citations to each page of the appendix that supports each assertion that the party makes concerning any documentary or non-documentary evidence on which the party relies to support or oppose the motion."). In light of the abbreviated record on which the motion is based, these procedural defects have not interfered with the decisional process of the court and have been disregarded. This footnote has been added so that counsel will remember to observe these rules in future pleadings.