Stellar Restoration Servs. v. Courtney

Full title: STELLAR RESTORATION SERVICES, LLC v. JAMES CHRISTOPHER COURTNEY a/k/a…

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

Date published: Mar 30, 2021

533 F. Supp. 3d 394 (E.D. Tex. 2021)

Opinion

CIVIL NO. 4:20-CV-382-SDJ

2021-03-30

STELLAR RESTORATION SERVICES, LLC v. JAMES CHRISTOPHER COURTNEY a/k/a Chris Courtney d/b/a Chestnut Plaza Condominium, et al.

Israel L. Suster, The Suster Law Group, PLLC, Bryan Hillary Burg, Siebman Forrest Burg & Smith LLP, Plano, TX, for Plaintiffs. Carol Collins Payne, Fishman Jackson Ronquillo PLLC, Jennifer Lynn Henry, Dawn Estes, Estes Thorne & Carr PLLC, Dallas, TX, for Defendants.

SEAN D. JORDAN, UNTTED STATES DISTRICT JUDGE

Israel L. Suster, The Suster Law Group, PLLC, Bryan Hillary Burg, Siebman Forrest Burg & Smith LLP, Plano, TX, for Plaintiffs.

Carol Collins Payne, Fishman Jackson Ronquillo PLLC, Jennifer Lynn Henry, Dawn Estes, Estes Thorne & Carr PLLC, Dallas, TX, for Defendants.

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

SEAN D. JORDAN, UNTTED STATES DISTRICT JUDGE

Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On March 11, 2021, the Magistrate Judge entered proposed findings of fact and recommendations (the "Report"), (Dkt. #33), that Defendants James Christopher Courtney's ("Courtney") and JC Enterprises I, LLC's ("JC Enterprises") Motion to Dismiss, (Dkt. #10), be denied. Defendants filed objections to the Report (the "Objections"), (Dkt. #34), and Plaintiff Stellar Restoration Services, LLC ("Stellar Restoration") filed a response (the "Response"), (Dkt. #36).

The Court has conducted a de novo review of the Objections and is of the opinion that the findings and conclusions of the Magistrate Judge are correct and that the Objections are without merit as to the ultimate findings of the Magistrate Judge. The Court hereby adopts the findings and conclusions of the Magistrate Judge as the findings and conclusions of the Court.

Background

This matter boils down to whether Courtney or JC Enterprises can be bound to a forum-selection clause. Courtney is both the President of Chestnut Plaza Condominium Association (the "Association") and the owner of JC Enterprises, a Missouri business selling specialty sportscars. See (Dkt. #8 at 3); (Dkt. #10 at 7); (Dkt. #10-2 at 3). JC Enterprises holds legal title over one of the condominium units in a commercial complex allegedly called Chestnut Plaza Condominiums. See (Dkt. #8 at 3); (Dkt. #10 at 7); (Dkt. #10-2 at 3); (Dkt. #31).

In February 2020, Courtney and Stellar Restoration's sales consultant signed a Restoration Services Agreement (the "Agreement"). See (Dkt. #13-4 at 4). The Agreement contains a forum-selection clause, which provides that "[e]xclusive forum and venue for any action brought pursuant to the terms of this Agreement ... shall be in Collin County, Texas." (Dkt. #13-4 at 4) (emphasis omitted). Courtney signed the document as "President" of the "Customer," who the Agreement defines as "Chestnut Plaza Condo Assoc." (Dkt. #13-4 at 2, 4). The Agreement further defines the "Subject Property" as "Chestnut Plaza Condominium[,] 22Ksf of standing seam, and located at the following address: 1950 E. Chestnut Expwy Springfield MO 65802." (Dkt. #13-4 at 2). The Agreement also provides:

Customer represents and warrants that the Subject Property is insured by an insurance carrier policy ("Policy") owned by Customer for Replacement Cost Value ....

The party signing for Customer represents and warrants his authority to bind Customer hereto and/or to bind the owner of the Subject Property, and Policy, to this Agreement ....

The parties, intending to be legally bound by its terms, have caused this Agreement to be executed individually and/or by their authorized representatives on the dates set forth below ....

(Dkt. #13-4 at 2, 4). Though the Agreement identifies only building 1950 on East Chestnut Expressway, the insurance policy in the record (the "Policy") covers buildings 1950 through 1980 on East Chestnut Expressway. See (Dkt. #13-4 at 2); (Dkt. #13-5 at 4). Further, the Policy's owner is "Chestnut Plaza Condominiums," not "Chestnut Plaza Condominium Association." See (Dkt. #13-5 at 4). The distinction bears significance because the record also contains registration documents for the fictitious business name "Chestnut Plaza Condominiums" (the "Fictitious Name"), which is wholly owned by Courtney. (Dkt. #13-2). The Fictitious Name is registered only as to building 1950 on East Chestnut Expressway, not buildings 1950 through 1980. See (Dkt. #13-2).

The Magistrate Judge's Report found that, due to the Agreement's ambiguous language, Courtney and JC Enterprises are bound to the forum-selection clause at this early stage of litigation. See (Dkt. #33 at 32–34). The Report recommended that (1) Defendants’ Motion be denied with respect to dismissing Defendants, and (2) Defendants’ request to transfer this matter to the Western District of Missouri be denied. See (Dkt. #33 at 32–39).

Objections to Report and Recommendation

Defendants raise two Objections to the Magistrate Judge's Report. Defendants assert that: (1) the Agreement unambiguously binds only the Association, and (2) if the Agreement is ambiguous, such ambiguity requires dismissing Courtney and JC Enterprises. See (Dkt. #34).

A. Whether the Agreement is Ambiguous

1 Defendants first Objection focuses on the phrase "and/or": "[T]he only reasonable interpretation of ‘and/or’ in these provisions is that the party signing is 1) signing both in his individual AND his representative capacity; or 2) [a] signing either in his individual OR [b] representative capacity, but not both ...." (Dkt. #34 at 3). According to Defendants, due to "the surrounding circumstances of the Agreement," Courtney signed the document only in his capacity as President of the Association, and, thus, neither Courtney nor JC Enterprises are bound. See (Dkt. #34 at 3–4). In other words, Defendants argue that "the surrounding circumstances of the Agreement" compel the Court to determine Courtney signed the Agreement in his representative capacity and nothing more. See (Dkt. #34 at 3–4). This argument is unpersuasive.

2 First, if the Court accepts Defendants’ reading of "and/or," the inquiry should end. Accepting Defendants’ understanding of "and/or" concedes that the Agreement is ambiguous. See Kenneth A. Adams & Alan S. Kaye, Revisiting the Ambiguity of "And" and "Or" in Legal Drafting, 80 St. John's L. Rev. 1167, 1180 (2006) ("[A]uthorities on legal drafting have stated or [in "and/or"] is ambiguous, in that it can be ‘inclusive,’ meaning A or B, or both, or it can be ‘exclusive,’ meaning A or B, but not both."); William Strunk , Jr. & E.B. White , The Elements of Style 40 (4th ed. 2000) (stating that "and/or" is "[a] device, or shortcut, that damages a sentence and often leads to confusion or ambiguity."). Indeed, courts have long noted that the term "and/or" can be ambiguous.¹ As the Magistrate Judge noted, "[o]nce a court determines a contractual provision is ambiguous, the meaning of that provision and the parties’ intent are questions of fact." (Dkt. #33 at 33) (citing Cicciarella v. Amica Mut. Ins. Co., 66 F.3d 764, 768 (5th Cir. 1995) ). Here, Defendants urge the Court to accept their interpretation of "and/or," drawn from the "surrounding circumstances," and conclude that Courtney signed the Agreement only in his representative capacity. See (Dkt. #34 at 2–5). But drawing from the "surrounding circumstances" of the Agreement requires the Court to examine extrinsic evidence and answer a question of fact. See Nat'l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995) (holding that an ambiguous contract permits the court to consider the parties’ interpretation and admit extraneous evidence to determine the instrument's meaning); R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519 (Tex. 1980) (same). It is simply too early to answer questions of fact at the dismissal stage. Cf. Nevels v. Ford Motor Co., 439 F.2d 251, 256–57 (5th Cir. 1971) ("The ultimate end of all litigation is the ascertainment and rendition of truth.").

1 See, e.g. , United States v. Bush , 70 F.3d 557, 562 (10th Cir. 1995) (regarding the conjunction "and/or," stating that "[s]uch vague language is strongly disfavored"); Quinn v. BJC Health Sys. , 364 F. Supp. 2d 1046, 1050 n.4 (E.D. Mo. 2005) (noting that, "[o]rdinarily, the Court refrains from using the term ‘and/or’ because the Court finds it to be ambiguous"). It appears, in modern parlance, the accepted reading of "and/or" understands "or" in its inclusive form. See The Chicago Manual of Style ¶ 5.250 (17th ed. 2017) ("Where [and/or] seems needed {take a sleeping pill and/or a warm drink}, try ... or ..., or both {take a sleeping pill or a warm drink, or both}."); R.W. Burchfield , The New Fowler's Modern Eng. Usage 53 (3d ed. 2000) ("The more comfortable way of expressing the same idea is to use ‘X or Y or both ,’ or, in many contexts, just ‘or.’ "); And/Or , Merriam-Webster's Dictionary ("used as a function word to indicate that two words or expressions are to be taken together or individually").

Even if the meaning of "and/or" is not ambiguous on its face, its application to Courtney and JC Enterprises is ambiguous in the present context. As the Report notes, what constitutes the "Subject Property" is ambiguous as a matter of law. See (Dkt. #33 at 33). The Agreement partially defines the Subject Property as Chestnut Plaza Condominiums, which implicates buildings 1950 through 1980 on East Chestnut Expressway. See (Dkt. #13-4 at 2); (Dkt. #13-5 at 4). However, only building 1950 is listed as the Subject Property. See (Dkt. #13-4 at 2). Further, it is unclear to what "22Ksf of standing seam" refers. From the record, it appears that "22Ksf of standing seam" may mean "22,000 square feet of standing seam." See (Dkt. #13-5 at 6) (copy of insurance claim, listing 21,139.63 square feet of "R&R Standing seam metal roofing" as an itemized expense). This raises the question: Would replacing 22,000 square feet of "standing seam" affect only building 1950, which is JC Enterprises’ unit, or would it affect all units in the condominium complex?

Just as the Court cannot presently divine what constitutes the Subject Property, the Court also cannot determine who is "the owner" of the Subject Property. Only after answering these preliminary questions can the Court determine how the "and/or" language operates in the Agreement. Resolving these ambiguities requires the Court to answer questions of fact, which are more appropriately addressed after discovery commences. See National Union, 907 S.W.2d at 520 ; R & P Enterprises, 596 S.W.2d at 519. At this juncture, JC Enterprises is bound to the Agreement for jurisdictional purposes.

"The owner" of the Policy presents the same problem. From the insurance claim submitted, it appears that the Policy covers buildings 1950 through 1980 on East Chestnut Expressway. See (Dkt. #13-5 at 4). This suggests that "the owner" of the Policy is the Association. However, the Policy names "Chestnut Plaza Condominiums" as the insured party, not "Chestnut Plaza Condominiums Association." (Dkt. #13-5 at 4). Whether this was merely a clerical error or instead a reference to Courtney by way of his Fictitious Name ("Chestnut Plaza Condominiums") is a question of fact. Accordingly, the identity of "the owner" is uncertain, and the meaning of the Agreement is ambiguous as a matter of law. Determining the parties’ intent is a question of fact better addressed at a later stage of litigation. See National Union, 907 S.W.2d at 520 ; R & P Enterprises, 596 S.W.2d at 519. Thus, Courtney is bound to the Agreement for jurisdictional purposes.

B. Whether the Agreement's Ambiguity Requires Defendants’ Dismissal

3 Next, Defendants argue that, if the Agreement is ambiguous, then the ambiguity "is fatal to Plaintiff's argument on jurisdiction." See (Dkt. #34 at 5). The Court finds this Objection unavailing as well.

First, Defendants cite Taylor v. Investors Associates Inc., 29 F.3d 211 (5th Cir. 1994), for the proposition that "the exclusion of language expressing clear intent to bind anyone other than the named parties ‘should be disregarded as purposeful.’ " (Dkt. #34 at 5) (citing Taylor, 29 F.3d at 215 ). But Taylor undermines Defendants’ position. In Taylor, the question before the Fifth Circuit was whether an arbitration clause binding the "undersigned, [its] heirs, executors, administrators and assigns" could also bind a securities broker-dealer. Taylor, 29 F.3d at 213, 215. The Fifth Circuit answered in the negative, as the arbitration clause's silence as to "brokers" must preclude its application to such parties. Id. at 215. Here, the opposite is true: The Agreement does not omit "owner of Subject Property" or "owner of Policy" from its terms. See (Dkt. #13-4 at 4). It explicitly names them. (Dkt. #13-4 at 4). Therefore, Taylor, when read in its proper context, counsels against dismissing Courtney and JC Enterprises.

Next, Defendants cite the doctrine of contra proferentem to argue that the Agreement's ambiguities should be construed against Stellar Restoration. See (Dkt. #34 at 6). As an initial matter, this is the first time that Defendants raise this argument, and, as such, it is not properly before the Court. See Finley v. Johnson, 243 F.3d 215, 219 n.3 (5th Cir. 2001) (citing United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992) ) ("We have held that issues raised for the first time in objections to the report of a magistrate judge are not properly before the district judge."); see also Baylor Health Care Sys. v. Equitable Plan Servs., Inc., 955 F.Supp.2d 678, 688–89 (N.D. Tex. 2013) (reprimanding party for raising arguments for the first time in objections, as the court was not put on notice and "[t]he court is not a mind reader").

45 However, even if Defendants had timely raised this argument, the Court would not apply contra proferentem prematurely. Contra proferentem stands for the principle that ambiguities in a contract are to be construed against the drafting party. See Songcharoen v. Plastic & Hand Surgery Assocs., PLLC, 561 F.App'x 327, 339 (5th Cir. 2014) (per curiam) (discussing the doctrine under Mississippi law). The doctrine is "based on the idea that the drafting party is likely to protect his own interest more than that of the other party," id., and is often invoked in scenarios where there is unequal bargaining power, such as insurance contracts, see Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 741 n.1 (Tex. 1998) ; Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1451–52 (5th Cir. 1995). "Under Texas law, a contract is generally construed against its drafter only as a last resort, after application of ordinary rules of construction leave reasonable doubt as to its interpretation." ACE Am. Ins. Co. v. Freeport Welding & Fabricating, Inc., 699 F.3d 832, 842 (5th Cir. 2012) (emphasis added) (citations omitted).

Here, Defendants have not adequately explained why the Court should rely on this "last resort" so early in the litigation. Again, this matter is in its procedural infancy, with virtually no discovery conducted. The Court is unable to apply any ordinary rule of construction, which is a prerequisite to applying contra proferentem. Further, the Court is not convinced, at this stage, that this matter presents a situation of unequal bargaining power: Courtney has served as President of the Association for more than a decade, which, at the least, evidences experience in his role. See (Dkt. #10-2 at 3); see also Hunt Bldg. Co., Ltd. v. John Hancock Life Ins. Co., No. EP-11-cv-295-DCG, 2013 WL 12094216, at *19 (W.D. Tex. July 3, 2013) ("[W]here extrinsic evidence does not yield a conclusive answer to the parties’ intent, as a matter of last resort, a court may employ the rule of contra proferentem—i.e. ‘a contract must be construed most strongly against the party who prepared it and favorably to a party who had no voice in the selection of its language.’ ").

To the Court's best knowledge, most cases in which courts have considered applying the doctrine of contra proferentem involve motions for summary judgment and motions for judgment as a matter of law where discovery had either commenced or been completed. See ACE American, 699 F.3d at 835 ; Songcharoen, 561 F.App'x at 331, 333. It could be that after the parties exchange documents and take depositions, extrinsic evidence will render the parties’ intent clear, and the Court need not rely on contra proferentem. See Songcharoen, 561 F.App'x at 333 (holding that the district court did not abuse its discretion when it declined to apply contra proferentem, as extrinsic evidence showed both parties were actively involved in drafting an agreement). Accordingly, to apply the doctrine at this early state of litigation would be premature.

As such, Defendants Objections are OVERRULED.

Conclusion

Based on the foregoing, Defendants Motion to Dismiss, (Dkt. #10), is hereby DENIED.

It is further ORDERED that Defendants’ Motion to Strike, (Dkt. #17), which seeks to strike declarations not addressed in the Report and not considered by this Court in reaching the instant decision, is hereby DENIED AS MOOT.

So ORDERED and SIGNED this 30th day of March, 2021.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KIMBERLY C. PRIEST JOHNSON, UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Defendants James Christopher Courtney and JC Enterprises I, LLC's (collectively, "Defendants") Motion to Dismiss Plaintiff's First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(2), or, Alternatively, to Transfer to the Southern District of Missouri (the "Motion") (Dkt. 10).¹ Plaintiff Stellar Restoration Services, LLC ("Stellar Restoration") filed a response (Dkt. 13), to which Defendants filed a reply (Dkt. 16) and an amended reply (Dkt. 18). Stellar Restoration then filed a sur-reply (Dkt. 20). On March 5, 2021, the Court heard oral argument on the Motion. See Dkt. 31. Having considered the pleadings, arguments, and applicable authorities, the Court recommends Defendants’ Motion (Dkt. 10) be DENIED .

I. BACKGROUND

A. THE PARTIES, ENTITIES, AND PROPERTY

Plaintiff Stellar Restoration is a Texas limited liability company specializing in the replacement of damaged commercial roofs. See Dkt. 8 at 3. Its work depends on the availability and willingness of insurance carriers to pay for such repairs. See id.

Defendant Christopher James Courtney ("Courtney") is an individual domiciled in Missouri. Dkt. 10-2 at 2. Courtney is the sole owner of Defendant JC Enterprises I, LLC ("JC Enterprises"), a Missouri business that sells specialty sportscars. See Dkt. 8 at 3; Dkt. 10 at 7. Dkt. 10-2 at 3.

Chestnut Plaza Condominiums (the "Property") is a building complex located in Springfield, Missouri. See Dkt. 8 at 3–4. Allegedly, the Property houses four condominium units, one of which is owned by JC Enterprises. See id. at 3; Dkt. 10 at 7. The Chestnut Plaza Condominium Association (the "Association") allegedly has the power to maintain and operate the Property, such as contracting for utilities, adopting administrative rules, and repairing the Property's common elements. See Dkt. 10-5 at 5. The Association was formed as a Missouri non-profit corporation in 1999, and Courtney became President of the Association in 2002. See Dkt. 10-2 at 3.

Chestnut Plaza Condominiums is a fictitious business name (the "Fictitious Name"), which, notably, is identically named as the Property. See Dkt. 8 at 5; Dkt. 13-2 (copy of Registration of Fictitious Name).² Here, the record reflects that, on March 8, 2018, Courtney registered the Fictitious Name, and Courtney wholly owns the Fictitious Name. See Dkt. 13-2.

2 Under Missouri law, individuals who conduct business under any name other than their true name are required to register a fictitious business name with the secretary of state. See Mo. Ann. Stat. § 417.200, et seq. The statute allows the public to know who is operating a business under an assumed name. See Philip G. Louis, Jr., 25 Missouri Practice , Business Organizations § 3.8 (2d ed.) (January 2021 update).

Additionally, there is also an insurance policy (the "Policy"). See Dkt. 13-5. The Policy lists "Chestnut Plaza Condominiums" as the insured and covers buildings 1950 through 1980 on East Chestnut Expressway, Springfield, Missouri, 65802-2235. See id. at 4. Because the Property and the Fictitious Name are identical, there is some ambiguity as to whether the Policy insures the Property or the Fictitious Name. See Dkt. 8 at 5.

B. THE AGREEMENT

On January 9, 2020, a storm damaged the Property's roof. See Dkt. 8 at 3–4; Dkt. 13-5. One month later, Stellar Restoration executed a Restoration Services Agreement (the "Agreement"), which was signed by two individuals: Stellar Restoration's sales consultant, and Courtney, who signed as the President of the Association. See Dkt. 8 at 8; Dkt. 13-4 at 2, 4. By its terms, the Agreement defines the Association as the "customer." See id. at 1. The Agreement's seven most relevant provisions are summarized below.

First, the Agreement defines the Subject Property as "Chestnut Plaza Condominiums, 22ksf of standing seam, and located at the following address: 1950 E. Chestnut Expwy Springfield MO 75802." Id.

Second, "[the Association] represents and warrants that the Subject Property is insured by an insurance carrier policy (‘Policy’) owned by [the Association] for Replacement Cost Value." Id. at 2.

Third, the Agreement authorizes Stellar Restoration to "investigate and evaluate" the damage sustained by the Property, after which Stellar Restoration is permitted to meet with the Association's insurance company to identify the scope of work and receive an estimate for the costs of repairs. See id. The Agreement also allows Stellar Restoration "to be present at all inspections with [the Association's] insurance carrier, adjusters, including any public insurance adjusters, agents, consultants, and/or others." Id. The amount payable to Stellar Restoration is to be set by "the Agreed Amount," which "is ascertained by reference to the insurance carrier's damages calculations and other Agreement documents." Id.

Fourth, by signing the Agreement, "[the Association] acknowledges Stellar [Restoration] is not a public insurance adjuster and cannot act to negotiate or settle an insurance dispute or claim." Id.

Fifth, the Association grants Stellar Restoration a security interest "in any insurance proceeds paid or to be paid for the Scope of Services." Id. at 4. The Association further "agrees to protect such funds as personal property for the sole benefit of and payment to Stellar [Restoration] as due under this Agreement, without regard to or any bond or any remedies at law, and authorizes injunctive relief to such effect." Id.

Sixth, the Agreement specifies that it "shall be governed by, construed, enforced in accordance with, and subject to, the laws of the State of Texas, except Chapter 707 (H.B. 2102). Exclusive forum and venue for any action brought pursuant to the terms of this Agreement, or in any way relating to this Agreement, shall be in Collin County, Texas." Id. (original emphasis removed).

And seventh, "[t]he party signing for [the Association] represents and warrants his authority to bind [the Association] hereto and/or bind the owner of the Subject Property, and Policy, to this Agreement." Id.

C. THE ALLEGATIONS

Allegedly, "[u]nbeknownst to [Stellar Restoration] at the time of contracting, [the Association's] corporate status had been administratively dissolved or revoked by the State of Missouri." Dkt. 8 at 4. Stellar Restoration alleges "at the time the Agreement was entered into by the parties," the Association "was not in existence" and Courtney failed to disclose this status to Stellar Restoration. Id. Stellar Restoration affixed a copy of the Association's dissolution documents, which reflect Missouri "administratively dissolved or revoked" the Association on December 29, 2011. Dkt. 13-1.

After signing the Agreement, Stellar Restoration allegedly worked with Courtney and Courtney's office manager to provide evidence of roof damage to the insurance carrier and the estimated costs to repair it. See Dkt. 8 at 7; Dkt. 10-2 at 3–5; Dkt. 10-3 at 2–3. On or about March 2, 2020, Courtney's office manager allegedly told Stellar Restoration that the insurance carrier had issued initial payment, which prompted Stellar Restoration to try scheduling a meeting to plan next steps. See id. at 7–8. Stellar Restoration alleges neither Courtney nor JC Enterprises responded to Stellar Restoration. See id. at 8. In late March or early April 2020, Stellar Restoration discovered another party was hired to repair the Property's roof. See id. Stellar Restoration alleges Defendants did not give Stellar Restoration "any written notice of any breach nor an opportunity to cure any such breach per the Agreement." Id.

D. THE CLAIMS

On April 16, 2020, Stellar Restoration initiated this lawsuit, asserting breach of contract and common law fraud and misrepresentation, both arising under Texas law. See id. at 9–15. Notably absent from the lawsuit is the Association, the defined "Customer" in the Agreement. See Dkt. 13-4.

For its breach of contract claim, Stellar Restoration alleges both Courtney and JC Enterprises breached the Agreement by improperly terminating it, failing to schedule Stellar Restoration's services, and allowing another contractor to repair the Property. See Dkt. 8 at 9. In the event Courtney could not bind JC Enterprises to the Agreement, Stellar Restoration alleges this should qualify as an additional breach. See id. at 9–10.

Stellar Restoration's common law fraud and misrepresentation claim is conditioned on the breach of contract claim. See id. at 10. The Amended Complaint states, "In the alternative, if the Court or finder of fact determines that Defendant Courtney had no authority to bind [JC Enterprises], then Plaintiff brings this action against Defendant Courtney for Texas common law fraud and misrepresentation, including fraud in the inducement and/or fraud of fact." Id. Stellar Restoration alleges Courtney "knew or should have known he did not have the authority to bind" JC Enterprises to the Agreement. Id. Stellar Restoration further alleges Courtney committed fraud, as he knew or should have known the Association's dissolved status precluded it from forming a contract. See id. These purportedly fraudulent acts allegedly induced Stellar Restoration's reliance and led to damages. See id. at 11.

In terms of relief, Stellar Restoration seeks damages, a preliminary injunction, and a permanent injunction. See id. at 11–12. With respect to injunctive relief, Stellar Restoration alleges the Agreement granted Stellar Restoration a security interest in the check issued by the insurance company. See id. According to Stellar Restoration, this clause entitles it to an injunction, whereby Courtney and JC Enterprises would be enjoined from "spending, transferring, conveying, gifting, or otherwise disposing of the funds received from the insurance carrier...." Id. at 12.

E. PROCEDURAL HISTORY

Stellar Restoration initiated suit against Courtney and JC Enterprises in the 401st Judicial District Court of Collin County, Texas. See Dkts. 1, 1-2, 1-3. Defendants removed the action to this Court, after which Stellar Restoration filed an Amended Complaint. See Dkts. 1, 8. Defendants then filed the present Motion (Dkt. 10), contending the Court should dismiss Stellar Restoration's Amended Complaint for lack of personal jurisdiction. In the same Motion, Defendants argue that, if the Court finds exercising personal jurisdiction is proper, the case should be transferred to the Western District of Missouri, Southern Division. See Dkt. 10; Dkt. 18 at 2 & n.2.

Notably, in Defendants’ amended reply to the Motion, Defendants allege, as of June 5, 2020, the State of Missouri "rescinded the administrative dissolution and [the Association] is once again a corporation in good standing." Dkt. 18 at 1 (italics and bold removed). Defendants further argue the rescission "is retroactive to the original date of the administrative dissolution, which predates the [Agreement] at issue." Id.

II. LEGAL STANDARD

Rule 12(b)(2) requires a court to dismiss a claim if it does not have personal jurisdiction over the defendant. See Butowsky v. Gottlieb , No. 4:19-cv-180-ALM-KPJ, 2020 WL 5797713, at *3 (E.D. Tex. July 16, 2020), report and recommendation adopted , 2020 WL 5757223 (E.D. Tex. Sept. 28, 2020) ; FED. R. CIV. P. 12(b)(2). "When a court rules on a motion to dismiss for lack of personal jurisdiction without holding an evidentiary hearing, the party asserting jurisdiction is required to present facts sufficient to constitute a prima facie case of personal jurisdiction to satisfy its burden." Duke Energy Int'l, LLC v. Napoli , 748 F. Supp. 2d 656, 678 (S.D. Tex. 2010) (citing Central Freight Lines Inc. v. APA Transp. Corp. , 322 F.3d 376, 380 (5th Cir. 2003) ; Alpine View Co. v. Atlas Copco A.B. , 205 F.3d 208, 214 (5th Cir. 2000) ). "[O]n a motion to dismiss for lack of jurisdiction, uncontroverted allegations in the plaintiff's complaint must be 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 for personal jurisdiction exists." Bullion v. Gillespie , 895 F.2d 213, 217 (5th Cir. 1990). However, the Court need not "credit conclusory arguments, even if uncontroverted." Panda Brandywine Corp. v. Potomac Elec. Power Co. , 253 F.3d 865, 869 (5th Cir. 2001). Courts conduct a two-step inquiry when a defendant challenges personal jurisdiction. Cunningham v. CBC Conglomerate, LLC , 359 F. Supp. 3d 471, 477 (E.D. Tex. 2019). First, "the court must determine whether the forum state's long-arm statute confers personal jurisdiction over the defendant," and second, the court must establish "whether the exercise of jurisdiction is consistent with due process under the United States Constitution." Id. ; Clemens v. McNamee , 615 F.3d 374, 378 (5th Cir. 2010). Because the Texas long-arm statute extends "to the constitutional limits," the Court need only consider "whether exercising personal jurisdiction over the defendants offends due process." Clemens , 615 F.3d at 378 (citing Helicopteros Nacionales de Colombia, SA v. Hall , 466 U.S. 408, 413–14, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) ). The Due Process Clause of the Fourteenth Amendment permits a court to exercise personal jurisdiction over a non-resident defendant when the defendant has "purposefully availed himself of the benefits and protections of the forum state by establishing minimum contacts with the forum state" and "the exercise of jurisdiction over that defendant does not offend traditional notions of fair play and substantial justice." Id.

III. ANALYSIS

A. STELLAR RESTORATION'S INTERPRETATION OF THE AGREEMENT

Stellar Restoration advances three arguments as to why Courtney and JC Enterprises can be sued under the Agreement, even though the Association is the signatory.

First, Stellar Restoration argues Courtney can be sued in his individual capacity by virtue of signing the Agreement. See Dkt. 8 at 5. The Agreement provides, "The party signing for [the Association] represents and warrants his authority to bind [the Association] hereto and/or bind the owner of the Subject Property, and Policy, to this Agreement." Dkt. 13-4 at 4. Under Stellar Restoration's interpretation of this clause, Courtney executed the Agreement in his individual capacity and he, in his individual capacity, intended to be bound to the Agreement. See Dkt. 8 at 5.

Second, Stellar Restoration argues Courtney can be bound by the Agreement through the Fictitious Name. See id. Stellar Restoration argues the Agreement binds the "owner of the ... Policy," which, through a chain of associations, binds Courtney. See Dkt. 8 at 5; Dkt. 13-2; Dkt. 13-4 at 4. Stellar Restoration's theory proceeds as follows: Because the Policy lists "Chestnut Plaza Condominiums" as the insured, the Policy must apply to the Fictitious Name. See Dkt. 8 at 5. Because Courtney wholly owns the Fictitious Name, Stellar Restoration contends Courtney is the insured party. See Dkt. 8 at 5. As "owner" of the Policy, Courtney can be sued for breach of the Agreement. See id.

Third, Stellar Restoration argues JC Enterprises can be sued because it is "the owner of commercial property located at 1950 E. Chestnut Expressway, Springfield, Missouri 65802," which is the location where "the subject of work [is] to be performed." See Dkt. 8 at 5. The Agreement states "the owner of the Subject Property" is bound to the Agreement; hence, Stellar Restoration argues that as owner of building 1950 on East Chestnut Expressway, JC Enterprise is bound by the Agreement. See Dkt. 8 at 5; Dkt. 13-4 at 4.

B. PERSONAL JURISDICTION

First, the Court will consider whether minimum contacts have been established. Butowsky , 2020 WL 5797713, at *3. Second, if minimum contacts are found, the Court will consider whether the exercise of jurisdiction over Defendants satisfies fair play and substantial justice. Id. Further, because personal jurisdiction can be waived through a forum selection clause, the Court considers whether the forum selection clause applies to Defendants as non-signatories of the Agreement. See Dickey's Barbecue Rests., Inc. v. Campbell Inv., LLC , No. 4:18-cv-491-ALM-KPJ, 2019 WL 2301367, at *4 (E.D. Tex. Feb. 11, 2019), report and recommendation adopted , 2019 WL 1219118 (E.D. Tex. Mar. 15, 2019).

Minimum contacts may give rise to either general or specific jurisdiction. Lewis v. Fresne , 252 F.3d 352, 358 (5th Cir. 2001). General jurisdiction exists where the defendant's contacts with the forum state are " ‘so continuous and systematic’ as to render [the defendant] essentially at home in the forum State." Daimler AG v. Bauman , 571 U.S. 117, 139, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). Specific jurisdiction arises where the defendant's contacts with the forum "arise from, or are directly related to, the cause of action." Revell v. Lidov , 317 F.3d 467, 470 (5th Cir. 2002). Specific jurisdiction is a claim-specific inquiry, and a plaintiff must establish specific jurisdiction over each claim brought. See Seiferth v. Helicopteros Atuneros, Inc. , 472 F.3d 266, 274 (5th Cir. 2006).

1. General Jurisdiction

"For an individual, the paradigm forum for the exercise of general jurisdiction is the individual's domicile." Arrow Elecs., Inc. v. Fireracker, LLC , No. 4:17-cv-895-ALM, 2018 WL 1761883, at *2 (E.D. Tex. Apr. 12, 2018) (quoting Daimler , 571 U.S. at 137, 134 S.Ct. 746 ). An individual's domicile is generally the state in which he lives and works, though courts also consider other factors, including "where the litigant exercises civil and political rights, pays taxes, owns real and personal property, has driver's and other licenses, maintains bank accounts, belongs to clubs and churches, has places of business or employment, and maintains a home for his family." See Coury v. Prot , 85 F.3d 244, 251 (5th Cir. 1996).

With respect to a corporation, general jurisdiction is proper "in two paradigmatic places: (1) the state of incorporation and (2) the state where it has its principal place of business." Frank v. P N K (Lake Charles) LLC , 947 F.3d 331, 337 (5th Cir. 2020). It is "incredibly difficult" to establish general jurisdiction in a forum other than these two. Monkton Ins. Servs., Ltd. v. Ritter , 768 F.3d 429, 432 (5th Cir. 2014).

Here, Stellar Restoration's Amended Complaint alleges Courtney "is a foreign individual," thereby conceding Courtney is not domiciled in Texas. See Dkt. 8 at 1. In Defendants’ Response and Courtney's declaration attached thereto, Defendants allege the following: Courtney lives and works in Springfield, Missouri; he owns no real or personal property in Texas; he conducts no business in Texas; he does not pay taxes in Texas; and he has only travelled to Texas on a personal vacation approximately five years ago. See Dkt. 10 at 9; Dkt. 10-2 at 1–2. Without any specific allegations to support a finding that Courtney, in his individual capacity, is domiciled or otherwise "at home" in Texas, the Court cannot exercise general jurisdiction over Courtney. See Sligh v. Fator , No. 4:19-cv-36-ALM-CAN, 2019 WL 6833899, at *5 (E.D. Tex. Nov. 15, 2019), report and recommendation adopted , 2019 WL 6828759 (E.D. Tex. Dec. 13, 2019).

Similarly, the Court cannot exercise general jurisdiction over JC Enterprises. Stellar Restoration's Amended Complaint alleges JC Enterprises is "a foreign for-profit limited liability company." See Dkt. 8 at 2. Therefore, Stellar Recovery admits JC Enterprises was not incorporated in Texas, and does not allege JC Enterprises has its principal place of business in Texas. Defendants’ Motion states JC Enterprises is a Missouri limited liability company, it owns no real or personal property in Texas, has no officers or directors in Texas, has no registered agent in Texas, and does not pay taxes in Texas. See Dkt. 10 at 9. Lacking any such connection to Texas, it cannot be said that JC Enterprises is "at home" in Texas such that the Court can exercise general jurisdiction over JC Enterprises. See Daimler , 571 U.S. at 137, 134 S.Ct. 746. Because the Court cannot exercise general jurisdiction over either Defendants, it must proceed with evaluating the prospect of specific jurisdiction.

2. Specific Jurisdiction

In their Motion and amended reply, Defendants argue the Court cannot exercise specific jurisdiction over them. See Dkts. 10, 18. Specifically, Defendants argue the following:

(1) Defendant Courtney did not reach out to Texas to form a relationship with Plaintiff, either in his individual capacity, his capacity as president of the Condo Association, or as the sole member of Defendant JC Enterprises. In fact, it was [Stellar Restoration] who traveled to Missouri to solicit business from the Missouri residents.

(2) [Stellar Restoration's] sales representative did not reveal [Stellar Restoration's] relationship to Texas while discussing the potential relationship with the Condo Association. His emails contain a phone number with an area code located in nearby northeast Oklahoma, and the bid submitted to the insurance company originated from Kansas, not Texas.

(3) [The Defendants] never traveled to Texas to negotiate, to contract, to modify a contract, to discuss performance of a contract, to facilitate performance of the contract, or for any other reason related to [Stellar Restoration's] claims.

(4) Defendant Courtney and his assistant, Deidra Cutbirth, communicated with [Stellar Restoration's] representatives on behalf of the Condo Association in person in Missouri, and via a handful of email and telephone communications initiated by [Stellar Restoration]. Defendant JC Enterprises never communicated with [Stellar Restoration] at all, in Texas or otherwise. Neither Defendant ever called any representative of [Stellar Restoration] in Texas.

See Dkt. 10 at 16–17. Relying on these allegations, Defendants maintain they have not made the minimum contacts necessary to warrant specific jurisdiction, and any contact to Texas would be "the fortuitous result of [Stellar Restoration's] relationship with Texas." Id. at 17. In their briefings, Defendants repeatedly argue they are improper defendants, as the Association is the signatory to the Agreement, not them. See Dkt. 10 at 7–8, 10, 12, 20, 22–23; Dkt. 18 at 1, 2, 5–6. Defendants further contend that, under Missouri law, even though the Association was administratively dissolved, it could still enter contracts, sue others, and be sued during this period. See Dkt. 10 at 20–22. Thus, to proceed against Defendants, Defendants argue Stellar Restoration must show it is able to pierce the Association's corporate veil. See id. at 17–18. Defendants also note that, as of June 5, 2020, the State of Missouri rescinded its administrative dissolution of the Association. See Dkt. 18 at 2.

Stellar Restoration's response and sur-reply do not address Defendants’ specific jurisdiction arguments or otherwise contest Defendants’ factual allegations. See Dkts. 13, 18. After review of Defendants’ arguments and the applicable case law, the Court agrees with Defendants. The Court cannot exercise specific jurisdiction over Defendants based on any contacts they may have made in their independent capacities or based on the "alter ego" theory. The Court addresses independent capacity and the alter ego theory in turn.

a. Independent capacity

To establish specific jurisdiction over Defendants in their independent capacities, Stellar Restoration must show Defendants "purposefully availed [themselves] of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." DeJoria v. Maghreb Petrol. Exploration, S.A. , 804 F.3d 373, 388 (5th Cir. 2015) (citations omitted). Parties that create "continuing relationships and obligations with citizens of another state" are subject to regulations and sanctions in the forum state. See Burger King Corp. v. Rudzewicz , 471 U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). "[T]he mere allegation that an out-of-state defendant has tortiously interfered with contractual rights or has committed other business torts that has injured a forum resident does not necessarily establish that the defendant possesses the constitutionally required minimum contacts." Panda Brandywine , 253 F.3d at 865 (quoting Far West Cap., Inc. v. Towne , 46 F.3d 1071, 1079 (10th Cir. 1995) ).

Here, most, if not all, of Defendants’ conduct took place in Missouri. See Dkt. 10 at 16–17. To the extent any communications were made between Stellar Restoration and Defendants, all were initiated by Stellar Restoration, and none were initiated by Defendants, let alone directed towards Texas. See id. In fact, Stellar Restoration alleges Defendants ignored Stellar Restoration's communications. See Dkt. 8 at 8. Specifically, Stellar Restoration alleges it "attempted to discuss" performance with Defendants, Defendants "did not respond or communicate" with Stellar Restoration, Defendants "ignored attempts" by Stellar Restoration to begin performance, and Stellar Restoration received no notice from Defendants to cure a breach. Id.

From these allegations, it is clear Defendants initiated very little, if any, contact with Stellar Restoration. See id. Accordingly, Defendants did not purposefully avail themselves to Texas's benefits and protections, nor did Defendants make any "continuing relationships and obligations" with residents of Texas. Burger King , 471 U.S. at 473, 105 S.Ct. 2174 ; DeJoria , 804 F.3d at 388. Stellar Restoration has not satisfied its prima facie burden to show the Court can exercise specific jurisdiction over Defendants. See Seiferth , 472 F.3d at 274. There is no specific jurisdiction over Defendants in their independent capacity.

b. Alter ego theory

Nor do the allegations show Defendants acted as the alter ego of the Association. Under Texas law, there is "a presumption of legal separateness with regard to a corporation and its officers." ACS Partners, LLC v. GFI Mgmt. Servs., Inc. , No. H-15-1111, 2015 WL 9319235, at *2 (S.D. Tex. Dec. 23, 2015) (citations omitted). Thus, the plaintiff bears the burden of showing a corporation's officer, director, or subsidiary has "such unity" with the corporation such that "the separateness of the corporation has ceased and holding only the corporation liable would result in an injustice." Id. (citations omitted). "The types of evidence a court will consider as proof of an alter ego include: (1) the payment of alleged corporate debts with personal checks or other commingling of funds; (2) representations that the individual will financially back the corporation; (3) the diversion of company profits to the individual for his persona use; (4) inadequate capitalization; and (5) other failure to keep corporate and personal assets separate." Nichols v. Tseng Hsiang Lin , 282 S.W.3d 743, 747 (Tex. App.—Dallas 2009, no pet.) (citing Mancorp, Inc. v. Culpepper , 802 S.W.2d 226, 228 (Tex. 1990) ). The Court addresses JC Enterprises first, and then Courtney.

With respect to the first, third, fourth, and fifth types of evidence, Stellar Restoration's pleadings are devoid of any allegations responsive to these considerations. The pleadings do not allege JC Enterprises commingles its funds with the Association's, the Association diverts funds to JC Enterprises, the Association was inadequately capitalized, or both entities failed to separate their assets. For the purposes of the present Motion, four of the five considerations weigh against finding JC Enterprises is the alter ego of the Association.

With respect to the second consideration—representations that JC Enterprises financially backs the corporation—the pleadings provide some support. Because JC Enterprises owns of one of the four condominium units, JC Enterprises, presumably through the payment of dues, "financially backs" the Association. See Dkt. 8 at 3; Dkt. 10 at 7; Dkt. 10-5 at 12 ("Every Unit Owner shall pay their proportionate share of the expenses of administration, maintenance, and repair of the Common Elements and of all other Common Expenses...."). Because the Court must resolve factual conflicts in favor of Stellar Restoration, see Bullion , 895 F.2d at 217, the allegations establish, for the purposes of the Motion, that JC Enterprises "financially backs" the Association.

However, the Court cannot ignore the fact that there are, allegedly, three other units, all of which presumably pay dues to the Association. See Dkt. 10 at 7; Dkt. 10-5 at 12. Because other condominium owners are involved, the Court is not persuaded JC Enterprises has "such unity" with the Association that JC Enterprises is the Association's alter ego. Thus, none of the five factors indicate JC Enterprises is the alter ego of the Association. The alter ego theory cannot confer specific jurisdiction over JC Enterprises.

The Court reaches the same conclusion with respect to Courtney. Here, the pleadings do not allege any facts responsive to the five types of proof for establishing an alter ego. Stellar Restoration has not alleged Courtney commingles his personal funds with the Association's, Courtney "financially backs" the Association, the Association diverts its funds to Courtney, the Association was inadequately capitalized, or Courtney and the Association failed to separate their assets. All five considerations do not indicate Courtney is the alter ego of the Association. The Court cannot exercise specific jurisdiction over Defendants in their independent capacity or through the alter ego theory.

c. Fair play and substantial justice

Only if the plaintiff successfully makes a prima facie showing of minimum contacts, does the burden shift to the defendant to show that traditional notions of fair play and substantial justice would be violated if the court exercised jurisdiction. See Johnston v. Multidata Sys. Int'l Corp. , 523 F.3d 602, 615 (5th Cir. 2008) ; Luv N’ Care, Ltd. v. Insta-Mix, Inc. , 438 F.3d 465, 473 (5th Cir. 2006). Because Stellar Restoration has not made a prima facie showing of Defendants’ minimum contacts with Texas, the Court need not analyze concerns regarding fair play and substantial justice. See Butowsky , 2020 WL 5797713, at *13.

C. FORUM SELECTION CLAUSE

Even though the Court lacks general and specific jurisdiction over Defendants, personal jurisdiction can nevertheless be waived through a forum selection clause. See Dickey's Barbecue , 2019 WL 2301367, at *4. In this inquiry, at issue are the following: (1) whether the forum selection clause is valid and enforceable; (2) whether Stellar Restoration's claims fall under the forum selection clause's purview; (3) whether Defendants, as non-signatories to the Agreement, can be bound to the forum selection clause; and (4) whether the Agreement's terms bind Defendants, despite not being signatories. Overall, the Court concludes (1) the forum selection clause is valid and enforceable; (2) all of Stellar Restoration's claims fall under the forum selection clause's purview; (3) Defendants cannot be bound as non-signatories under the four doctrines advanced by the parties; but (4) the plain language of the Agreement binds Defendants at this early stage of litigation.

1. Validity and Enforceability

Forum selection clauses "are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances." M/S Bremen v. Zapata Off-Shore Co. , 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) ; CDX Holdings, Inc. v. Hobbs , No. 3:12-cv-1055-P, 2012 WL 12885213, at *4 (N.D. Tex. Aug. 16, 2012). When evaluating the enforceability of forum selection clauses, "federal law applies ... in both diversity and federal question cases." Braspetro Oil Servs. Co. v. Modec (USA), Inc. , 240 F. App'x 612, 615 (5th Cir. 2007) (citing Scherk v. Alberto-Co. , 417 U.S. 506, 516, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974) ).

Under federal law, a forum selection clause may be unreasonable if (1) the forum selection clause is the product of fraud or overreaching; (2) the party seeking to escape enforcement "will for all practical purposes be deprived of his day in court" because of the grave inconvenience or unfairness of the selected forum; (3) the fundamental unfairness of the chosen law will deprive the plaintiff of a remedy; or (4) enforcing the forum selection clause violates a strong public policy of the forum state. See Haynsworth v. The Corp. , 121 F.3d 956, 963 (5th Cir. 1997) (citing Carnival Cruise Lines, Inc. v. Shute , 499 U.S. 585, 595, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991) ; Bremen , 407 U.S. at 12–13, 92 S.Ct. 1907 ). Defendants argue the second and fourth grounds of unreasonableness: enforcing the forum selection clause would result "in grave inconvenience or unfairness" to Defendants, and any such enforcement would violate Texas public policy. See Dkt. 10 at 27–30; Dkt. 13 at 25–27.³

3 In its response, Stellar Restoration briefly addresses the "fraud and overreaching" factor for unreasonableness: "There is no evidence of deception or that Plaintiff behaved improperly regarding the clause's placement in this case or misrepresented the forum-selection clause." Dkt. 13 at 35. Because this issue is not raised by Defendants in their Motion or amended reply, the Court does not address this issue.

a. Grave inconvenience or unfairness of the selected forum

Defendants maintain that proceeding in Texas "would result in grave inconvenience or unfairness" to them. See Dkt. 10 at 27. Defendants argue the "unprecedented global pandemic" makes it difficult for them to litigate in Texas, noting travel from Missouri to Texas as one example. See id. at 30. Defendants further assert that Courtney is the sole supporter for an adult son with mental illness, and litigation activity in Texas would make it difficult for Courtney to transport his son to medical appointments, procure his son's medication, and monitor his son's health. See id. at 30–31. Moreover, Defendants argue that most of the evidence and witnesses are located in Missouri. See id. at 31.

Because the inconvenience of a forum is foreseeable at the time of contracting, invalidating a forum selection clause due to a grave inconvenience requires the resisting party to show it will, "for all practical purposes," be deprived of their day in court. See Mendoza v. Microsoft, Inc. , 1 F. Supp. 3d 533, 545 (W.D. Tex. 2014). The party resisting the forum selection clause "bears a heavy burden." See id. at 543. The Court finds Defendants have not met this heavy burden.

The inconvenience a party experiences from attending proceedings and trials in another state will not prevent enforcement of a forum selection clause. See Pugh v. Arrow Elecs., Inc. , 304 F. Supp. 2d 890, 895 (N.D. Tex. 2003). The same goes for witnesses. Witnesses who travel to, and appear before, federal courts are entitled to compensation for each day of attendance and reimbursement for their travel and overnight stay. See 28 U.S.C. § 1821. Without explaining why witnesses would not be able to travel to Texas and how such difficulties would "gravely inconvenience" Defendants, Defendants have not met their heavy burden. See JFP Servs. LLC v. Torans , Nos. SA-17-cv-00210-FB, SA-17-cv-1031-DAE, 2018 WL 3326841, at *4 (W.D. Tex. Apr. 30, 2018) ("Aside from the general assertion that their witnesses ‘lack the ability to travel,’ the [resisting parties] do not present the Court with any explanation as to why it would be gravely inconvenienced.... This unsupported assertion is insufficient to satisfy the high threshold for establishing inconvenience."), report and recommendation adopted , 2018 WL 4343439 (W.D. Tex. July 2, 2018).

With respect to evidence, the Court is similarly unpersuaded. There are a number of methods by which discovery can be conducted without imposing travel to Texas. For example, documents are mostly produced electronically, and depositions can take place in Missouri or through videoconference technology. See, e.g., Mitchell v. Bed Bath & Beyond, Inc. , No. 4:19-cv-854-ALM-CAN, Dkt. 82 (E.D. Tex. Dec. 14, 2020) (order involving video deposition).

While the Court acknowledges the ongoing COVID-19 pandemic poses many challenges, Defendants have not explained how these challenges will, "for all practical purposes," deprive Defendants of their day in court if tasked with defending themselves. See Mendoza , 1 F. Supp. 3d at 545. To accommodate difficulties posed by the public health crisis, the Court regularly conducts hearings via videoconference and telephone. See, e.g. , Dkt. 32 (minute entry for video hearing); Minute Entry for March 9, 2021 (minute entry for telephonic hearing). Additionally, the advent of multiple COVID-19 vaccines is alleviating some of these challenges. Defendants have not shown how, with accommodations, they will be deprived of their day in court. See Effron v. Sun Line Cruises, Inc. , 67 F.3d 7, 11 (2d Cir. 1995) (noting a party can have his day in court without ever setting foot in a courtroom); Vijuk Equip. Inc. v. GUK-Falzmaschinen Griesser & Kunzmann, GmbH & Co. KG , 902 F. Supp. 162, 165 (N.D. Ill. 1995) ("The court also appreciates that [plaintiffs] are needed in Illinois to run their family business. However, the reality of litigation is that parties need not be with (that is, in the same location as) their attorneys at every step of the way, from filing the lawsuit through trial."); Zaitzeff v. Peregrine Fin. Grp. Inc. , 2008 WL 11408422, at *12 (C.D. Cal. June 23, 2008) (noting the right to a day in court does not mean the actual presentation of a case, but the right to be duly cited to appear and afforded an opportunity to be heard).

With respect to trial, the Court acknowledges a jury trial conducted by video would pose serious challenges. However, neither party has made a jury demand in this case, and the Court is well positioned to conduct a bench trial by video. But even if this case were tried before a jury, the Court can administratively stay the case until challenges from the current pandemic subside and the country's vaccination rates increase, after which an in-person trial could commence. See, e.g., Autoficio, LLC v. Cimble Corp. , No. 4:17-cv-404-KPJ, Dkt. 205 (E.D. Tex. Jan. 6, 2021) (noting, in a matter ready for an in-person jury trial, the court intends to administratively stay the case until the COVID-19 health crisis subsides).

With respect to Courtney's caregiving responsibilities, requiring Courtney to litigate in Texas may pose difficulties given his caregiving responsibilities for a son with special needs. Other courts have found grave difficulties can be established by alleging a combination of extreme personal and financial difficulty. See, e.g., Grice v. VIM Holdings Grp., LLC , 280 F. Supp. 3d 258, 282 (D. Mass. 2017) (finding grave difficulty where single parent earning less than $15.00 per hour would have been forced to litigate in Illinois instead of Massachusetts); Sayles v. DirectSat USA, LLC , No. 10 C 2879, 2011 WL 382875, at *3 (N.D. Ill. Feb. 3, 2011) (finding grave difficulty where single mother with "limited finances" would have been forced to litigate in Pennsylvania instead of Illinois); Walker v. Carnival Cruise Lines , 107 F. Supp. 2d 1135, 1136, 1141–42 (N.D. Cal. 2000) (finding grave difficulty where the plaintiff suffered from quadriplegia, required restroom access at all times, and earned less than $700 a month of disposable income for a family of three); Utoafili v. Trident Seafoods Corp. , No. 09-2575 SC, 2009 WL 4545175 (N.D. Cal. Nov. 30, 2009) (finding grave difficulty where difference in cost between two fora, by a conservative estimate, was "the equivalent of nearly twenty-one months of [the p]laintiff's income.").

Defendants’ filings have not addressed Courtney's financial position, and the nature of Courtney's personal difficulties are rather vague. Accordingly, they have not met their burden to show their personal and financial difficulties amount to a grave inconvenience. See Ziya v. Global Linguist Sols., LLC , No. CV10-2021-PHX DGC, 2011 WL 5826081, at *3 (D. Ariz. Nov. 18, 2011) (lack of specifics as to plaintiff's financial hardship precluded finding that enforcing forum selection clause posed grave difficulties).

And lastly, it is important to address that, in Defendants’ briefs, they repeatedly stress the proper defendant in this matter is the Association, not them. See Dkt. 10 at 7, 8, 10, 12, 20, 22, 23; Dkt. 18 at 1, 2, 5, 6. However, the Court must acknowledge that Defendants’ argument works against them. By insisting the Association is the proper defendant, Defendants essentially argue they should be brought into Texas through the Association, after which Courtney, in his capacity as President of the Association, would presumably be required to facilitate retaining counsel, appear for hearings, participate in discovery, and, should the case advance to such a stage, appear for trial. Defendants cannot argue the Association is the proper defendant and simultaneously argue defending the action is a grave inconvenience. This prong does not show the forum selection clause is unreasonable.

b. Texas public policy

Defendants argue the Agreement violates Texas law and public policy, which makes the forum selection clause unreasonable. See Dkt. 10 at 27. Defendants contend the Agreement violates Texas Insurance Code § 4102.051, which prohibits a person from "act[ing] as a public insurance adjuster in [Texas] or hold himself or herself out to be a public insurance adjuster in [Texas] unless the person holds a license." See id. at 27–28; TEX. INS. CODE ANN. § 4102.051. Defendants posit the Agreement's terms make Stellar Restoration sufficiently analogous to a public insurance adjuster, thereby voiding it. See id. at 28. Defendants maintain that, even though the Agreement states, "Customer acknowledges that Stellar is not a public insurance adjuster and cannot act to negotiate or settle an insurance dispute or claim," Dkt. 13-4 at 2, this disclaimer text cannot "insulate[ ]" Stellar Restoration "from the true nature of its actions." Dkt. 10 at 28. The Agreement is not void under Texas law.

Under Texas law, a public insurance adjuster is "a person who, for direct, indirect, or any other compensation" acts "on behalf of an insured in negotiating for ... a claim for loss or damages under any policy of insurance covering real or personal property." TEX. INS. CODE ANN. § 4102.001. Public insurance adjusters must be licensed by the Texas Department of Insurance. Id. § 4102.051(a). As a Texas appellate court has noted, regulating the business of and licensing of public insurance adjusters is "based on the policy of protecting the public." Lon Smith & Assocs., Inc. v. Key , 527 S.W.3d 604, 618 (Tex. App.—Fort Worth 2017, pet. denied). In enacting its statutory regulations for public insurance adjusters, the Texas state legislature noted:

Dozens of lawsuits are filed against property insurance companies every day across Texas alleging underpayment of hail damage claims.... Typically these lawsuits originate with a public adjuster knocking on a property owner's door with promises of a "free roof" because of hail damage. As long as the roof is old, it likely exhibits characteristics that can be alleged to have resulted from hail impact....

Other public adjusters, however, simply act as conduits for lawyers. These public adjusters have no intention of adjusting the claim, but instead simply immediately refer their property owner clients to a lawyer. In fact, some public adjusters ask the homeowner to sign a lawyer contract simultaneously.... That contract provides the lawyer with a 30 to 40 percent contingency fee payable out of any insurance proceeds obtained.

There is an emerging industry in Texas of public adjusters taking advantage of insurance claims for significant personal financial gain, specifically in hail storm situations, that needs to be stopped. This practice affects homeowners’ insurance premiums and coverage, and causes insurances costs to significantly soar for all Texans.

Texas Senate Research Center, Bill Analysis, Tex. S.B. 1060, 84th Leg. (May 28, 2015). To protect the public, Texas law imposes numerous regulations and requirements for public insurance adjusters. See Lon Smith , 527 S.W.3d at 618 (cataloging Texas’ many regulations for public insurance adjusters).

In Lon Smith and Hill , two Texas appellate courts voided a contract for repairs because they violated § 4102.051. See Lon Smith , 527 S.W.3d at 618–20 ; Hill v. Spracklen , No. 05-17-00829-CV, 2018 WL 3387452, at *4–5 (Tex. App.—Dallas 2018, pet. denied). In Lon Smith , an agreement authorized a repair company to (1) pursue two homeowners’ "best interest for all repairs," and (2) settle the final contract price between the insurance company and the repair company. 527 S.W.3d at 620. The court held these two provisions were outcome determinative, rendering the repair company a public insurance adjuster within the meaning of § 4102.051. See id. Because the repair company acted as a public insurance adjuster without a license, the court voided the agreement. See id.

The court in Hill reached a similar conclusion. See 2018 WL 3387452, at *4–5. There, the agreement also allowed the repair company to pursue the homeowners’ "best interest for all repairs" and provided "the final price agreed to between the insurance company and [the repair company] shall be the final contract price." Id. at *5. Citing Lon Smith , the court held the repair company was a public insurance adjuster within the meaning of § 4102.051, and voided the contract. See id.

Here, the Agreement lacks the two outcome-determinative clauses found in Lon Smith and Hill . First, the Agreement does not authorize or require Stellar Restoration to act in the Association's best interest. Second, the Agreement does not authorize Stellar Restoration to reach a final contract price with the insurance company. To the contrary, the Agreement authorizes Stellar Restoration to obtain an "estimate" after "investigat[ing]" and "evaluat[ing]" the damage sustained by the condominium complex. Dkt. 13-4 at 2. An estimate is not a final price. Moreover, the Agreement expressly acknowledges the possibility that other parties might be involved, such as an insurance carrier, public insurance adjuster, agents, consultants, and others. See id. The Agreement acknowledges these other parties might have the authority to bind the Association to a final price. See id.

As it stands, the Agreement merely grants Stellar Restoration the authority to investigate the complex, evaluate the damage, and join others during any inspection to, presumably, preserve its interest in the scope of work and final price. The Agreement does not violate Texas public policy, and the forum selection clause is valid and enforceable.

2. Whether the Claims Relate to, or Arise out of, the Agreement

"The scope of a forum selection clause is not limited solely to claims for breach of the contract that contains it. Whether a forum selection clause encompasses other claims depends principally on how broadly the clauses are worded." MaxEn Cap., LLC v. Sutherland , No. H-08-3590, 2009 WL 936895, at *6 (S.D. Tex. Apr. 3, 2009) (citations omitted).

Forum selection clauses reaching claims "relating to" a contract are interpreted broadly, "encompassing all claims that have some possible relationship with the contract." Id. (quoting Phillips v. Audio Active Ltd. , 494 F.3d 378, 389 (2d Cir. 2007) ); see Personal Sec. & Safety Sys. Inc. v. Motorola Inc. , 297 F.3d 388, 393 (5th Cir. 2002) (holding clauses covering claims "related to" agreement "embrace[s] all disputes" with "a significant relationship to the contract regardless of the label attached to the dispute"). Where a forum selection clause states it will embrace claims "relating to" the contract, the clause will also apply to tort claims if the tort claims "ultimately depend on the existence of a contractual relationship between the parties, if resolving those claims relates to the interpretation of the contract, or if those tort claims involve the same operative facts as the parallel claim for breach of contract." See MaxEn Cap. , 2009 WL 936895, at *6.

Here, the Agreement provides, "Exclusive forum and venue for any action brought pursuant to the terms of this Agreement, or in any way relating to this Agreement, shall be in Collin County, Texas." Dkt. 13-4 at 4 (original emphasis removed). Because the forum selection clause covers claims "relating to" the Agreement, the Court interprets the clause broadly and applies it to tort claims, so long as those tort claims relate to the existence of the Agreement, the interpretation of the Agreement, or the same operative facts as the Agreement's alleged breach. See MaxEn Cap. , 2009 WL 936895, at *6.

Using this framework, the Agreement's forum selection clause applies to Stellar Restoration's two causes of action. Stellar Restoration's first cause of action, breach of the Agreement, plainly falls within the forum selection clause's scope. Stellar Restoration's second cause of action, fraud and misrepresentation, is a tort claim involving the same operative facts as Stellar Restoration's breach of contract claim. See id. at *10. Hence, the fraud claim falls within the forum selection clause's scope. See MaxEn Cap. , 2009 WL 936895, at *6. Thus, the forum selection clause applies to each of Stellar Restoration's claims.

3. Whether Defendants, as Non-Signatories, Can Be Bound to the Forum Selection Clause

The Fifth Circuit has stated forum selection clauses apply to non-signatories in "rare circumstances." Bridas S.A.P.I.C. v. Government of Turkmenistan , 345 F.3d 347, 358 (5th Cir. 2003). To date, the Fifth Circuit has enumerated six doctrines by which a non-signatory can be bound to a forum selection clause:

(1) incorporation by reference;

(2) assumption;

(3) agency;

(4) veil-piercing/alter ego;

(5) estoppel; and

(6) third-party beneficiary.

Hellenic Investment Fund, Inc. v. Det Norske Veritas , 464 F.3d 514, 517 (5th Cir. 2006) (citing Bridas , 345 F.3d at 355–56 ).

Moreover, although the Fifth Circuit has not directly held that a non-signatory can be bound to a forum selection clause if it is "closely related" or "inextricably intertwined" to a signatory, federal district courts in Texas have nevertheless applied this theory. See, e.g., Texas Source Grp. v. CCH, Inc. , 967 F. Supp. 234 (S.D. Tex. 1997) (applying "closely related" theory); Huawei Technologies Co., Ltd. v. Yiren Huang , No. 4:17-cv-00893, 2018 WL 1964180 (E.D. Tex. Apr. 25, 2018) (same); Excel Mktgs. Sols., Inc. v. Direct Fin. Sols., LLC, No. 3:11-cv-0109-D, 2011 WL 1833022 (N.D. Tex. May 13, 2011) (same); D-Two Commc'ns, Inc. v. Comtel , No. MO-09-cv-031, 2011 WL 13175765 (W.D. Tex. Aug. 3, 2011) (same); see also VTX Commc'ns, LLC v. AT&T, Inc. , No. 7:19-cv-00269, 2020 WL 4465968, at *4 (S.D. Tex. Aug. 4, 2020) (noting the Second, Third, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits have embraced the "closely related" theory, but the Fifth Circuit "has not yet spoken to the issue").

Of the seven doctrines, the briefings addresses four: (1) veil piercing and alter ego; (2) estoppel; (3) third-party beneficiary; and (4) closely related. See Dkt. 10 at 17–18 (raising veil piercing and alter ego doctrines); Dkt. 13 at 31 (raising estoppel and third-party beneficiary theories); Dkt. 18 at 8–10 (addressing estoppel, third-party beneficiary, and closely related theories); Dkt. 20 at 6–8 (addressing alter ego and closely related theories). As previously explained, the allegations do not demonstrate Courtney or JC Enterprises are the alter egos of the Association. See supra , Part III.B.2. Therefore, the Court addresses the estoppel, third-party beneficiary, and inextricable intertwinement theories below.

a. Estoppel

The Fifth Circuit has held that two forms of estoppel can bind a non-signatory: direct benefits estoppel and equitable estoppel. See Hellenic Inv. , 464 F.3d at 517–18 (applying direct benefits estoppel doctrine); Grigson v. Creative Artists Agency, LLC , 210 F.3d 524, 527 (5th Cir. 2000) (applying equitable estoppel doctrine); see also Duncan v. Banks , No. SA-15-cv-148-XR, 2015 WL 5511253, at *13 (W.D. Tex. Sept. 16, 2015) (explaining the differences). In their briefs, the parties only discuss direct benefits estoppel. See Dkt. 13 at 31; Dkt. 18 at 8–10.

"Direct benefits estoppel ‘involve[s] non-signatories who, during the life of the contract, have embraced the contract despite their non-signatory status but then, during litigation, attempt to repudiate the arbitration clause in the contract.’ " Hellenic Inv. Fund , 464 F.3d at 517–18. The direct-benefits estoppel doctrine will bind a non-signatory to a forum selection clause if the non-signatory "knowingly exploits the agreement" containing the clause. Bridas , 345 F.3d at 361–62. Put another way, the doctrine prevents a non-signatory from "hav[ing] it both ways," whereby the non-signatory attempts to benefit from one part of the contract but avoid the forum selection clause contained therein. Id. at 361.

There are two methods by which the direct benefits estoppel theory can apply: by "knowingly seeking and obtaining ‘direct benefits’ from [the] contract" or "seeking to enforce the terms of that contract or asserting claims that must be determined by reference to [the] contract." Noble Drilling Servs., Inc. v. Certex USA, Inc. , 620 F.3d 469, 473 (5th Cir. 2010) ; see In re Lloyd's Register N. Am., Inc. , 780 F.3d 283, 287, 291 (5th Cir. 2015) (applying direct benefits estoppel because non-signatory selected the entity it desired as a signatory, communicated with signatory in the carrying out of its duties, and would receive sales revenue from signatory's activities); MaxEn Cap. , 2009 WL 936895, at *6 (holding direct-benefits estoppel applied for two reasons: (1) non-signatories initiated lawsuit to enforce agreement with forum selection clause; and (2) non-signatories intended to use services of one signatory).

Here, Stellar Restoration has not alleged Courtney or JC Enterprises have taken an affirmative act to enforce the Agreement or otherwise benefit from it. Rather, Stellar Restoration alleges they are avoiding enforcement and/or inuring any benefits from the Agreement. See Dkt. 8 at 8 (alleging Defendants continually ignored Stellar Restoration's efforts to set up a meeting and selected another repair company in breach of the Agreement). Without any allegation to support that Defendants tried to benefit from the Agreement, the direct benefits estoppel doctrine does not apply.

b. Third party beneficiary

"Non-signatory, third-party beneficiaries of agreements containing arbitration or forum selection clauses may be bound to the clause, depending on the parties’ intentions at the time the contract was executed." Harland Clarke Holdings, Corp. v. Milken , 997 F. Supp. 2d 561, 581 (W.D. Tex. 2014) (citing JP Morgan Chase v. Conegie ex rel. Lee , 492 F.3d 596, 600 (5th Cir. 2007) ; Fleetwood Enters., Inc. v. Gaskamp , 280 F.3d 1069, 1075 (5th Cir. 2002) ). Because parties "are presumed to be contracting for themselves only," the presumption will be overcome "only if the intent to make someone a third-party beneficiary is ‘clearly written or evidenced in the contract.’ " Id. (quoting Bridas , 345 F.3d at 363 ). Thus, if the agreement names a non-signatory as a recipient of benefits, the third-party beneficiary theory will bind the non-signatory to the agreement. See id. (citation omitted). " ‘[T]he fact that a person is directly affected by the parties’ conduct, or that he may have a substantial interest in a contract's enforcement, does not make him a third-party beneficiary.’ " Bridas , 345 F.3d at 362 (quoting E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S. , 269 F.3d 187, 200 n.7 (3d Cir. 2001) ). "A court will not create a third-party beneficiary contract by implication. Unless an intention to contract or confer a direct benefit to a third party is clearly and fully spelled out , enforcement by the third party will be denied." D.B. Inc. v. National Admin. Sol. Corp. , No. 3-03-cv-2189-R, 2004 WL 865842, at *3 (N.D. Tex. Apr. 21, 2004) (citations omitted) (emphasis added).

Thus, in JP Morgan Chase , the Fifth Circuit held a patient at a nursing home was bound to a forum selection clause when his mother and the nursing home executed an agreement. See 492 F.3d at 600. Because the agreement expressly named the patient as the recipient of care and services from the nursing home, the Fifth Circuit held the patient was bound under the third-party beneficiary theory. See id. Contrastingly, in Ace American Insurance Company v. Huntsman Corporation , 255 F.R.D. 179 (S.D. Tex. 2008), the court found that a non-signatory was not bound to a forum selection clause under the third-party beneficiary theory, even though the agreement expressly named the non-signatory as a possible recipient of direct payments. See id. at 199–200. This provision, in combination with others, was insufficient to show the parties’ intention to make the non-signatory a third-party beneficiary. See id. at 200.

Here, the Agreement between Stellar Restoration and the Association does not name either Defendant as a third-party beneficiary. To be sure, Courtney and JC Enterprises will derive a benefit from a repaired roof, but this alone is insufficient to make them third-party beneficiaries. See DuPont , 269 F.3d at 196–97 (noting a parent company deriving benefits from a subsidiary executing a contract is insufficient to make parent company a third-party beneficiary). Because the Agreement does not "clearly and fully spell[ ]" out how Courtney or JC Enterprises are the intended beneficiaries of the Agreement, the Court will not infer they are third-party beneficiaries by implication. Ace Am. Ins. Co. , 255 F.R.D. at 200. As with the alter ego and direct benefits estoppel theories, the Court finds the third-party beneficiary argument unavailing.

c. Closely related, or inextricable entwinement

"A [non-signatory] can be bound to a forum selection clause if the [non-signatory] is ‘closely related to the dispute such that it becomes foreseeable that it will be bound.’ " Excel Mktgs. , 2011 WL 1833022, at *6. For the doctrine to apply, the non-signatory can either be (1) closely related to a signatory, or (2) allegedly engaged in conduct "closely related" to the contractual relationship. See Duncan , 2015 WL 5511253, at *19. Because "[n]o specific relationship is dispositive[,] ... [t]he key issue is whether or not it is foreseeable that the third party will be bound." Terraspan, LLC v. Rave, LLC , No. 3:12-cv-0816-K, 2012 WL 6115721, at *4 (N.D. Tex. Dec. 10, 2012).

In VTX Communications , the district court held a forum selection clause applied to four non-signatory defendants. See 2020 WL 4465968, at *5. There, one defendant wholly owned a signatory to the agreement, managed that signatory, and obtained money from the agreement. Id. Another defendant shared officers and employees with a signatory, and the plaintiff alleged significant self-dealing occurred among all the parties—signatories and non-signatories. Id. Taken together, the court held the closely related doctrine bound the four non-signatory defendants to the forum selection clause, as the non-signatories were closely related to the signatories themselves and their conduct was closely related to the contract at issue. Id.

In Weatherford International, LLC v. Binstock , 452 F. Supp. 3d 561 (S.D. Tex. 2020), the court found a non-signatory defendant was "closely related" to a signatory because the defendant was not only alleged to have "mere co-ownership" of the signatory, but the defendant also created and used the signatory as an instrumentality to circumvent a non-disclosure agreement and a covenant not to compete. See id. at 571. The court further observed "[c]ourts have found that a sole owner and controller of a corporation is closely related to that corporation for the purposes of enforcing forum selection clauses." See id. Under these facts, the non-signatory was closely related to the signatory itself, and its conduct was closely related to the contract at issue. See id.

In Huawei Technologies Co., Ltd. v. Yiren Huang , the court found an employee's corporation was subject to the forum selection clause in his employment agreement. See 2018 WL 1964180, at *9–10. Allegedly, when the employee joined Huawei, he signed a non-disclosure agreement and a covenant not to compete. See id. at *1. The employee then allegedly created a corporation in violation of those two provisions and served as that corporation's founder, promoter, agent, and officer. See id. at *1–2, *10. Because the employee was closely intertwined with his corporation and the employee's conduct was closely related to his non-disclosure agreement and covenant not to compete, the employee's corporation was bound to the forum selection clause. See id. at *10.

In all three cases, the non-signatory orchestrated an elaborate web of entities to perpetuate fraud or avoid contractual obligations. These cases clearly present a "rare circumstance" of inextricable intertwinement in which a forum selection clause should bind a non-signatory. Bridas , 345 F.3d at 358. But here, the allegations merely show JC Enterprises owns a condominium unit in the Property. See Dkt. 8 at 3; Dkt. 10 at 7. Courtney is the President of the Association, maintains a Fictitious Name, and through JC Enterprises, conducts his business of selling specialty sports cars from the Property. See Dkt. 8 at 3; Dkt. 10 at 7; Dkt. 10-2 at 3. These allegations do not rise to the level of those found in VTX Communications, Weatherford International , and Huawei . Hence, the closely related doctrine is inapplicable.

4. Whether the Agreement's Language Binds Defendants at this Early Stage of Litigation

The Agreement provides, in relevant part:

Customer represents and warrants that the Subject Property is insured by an insurance carrier policy ("Policy") owned by Customer for Replacement Cost Value.... The party signing for Customer represents and warrants his authority to bind Customer hereto and/or to bind the

owner of the Subject Property, and Policy, to this Agreement.

Dkt. 13-4 at 2, 4. Under the Agreement, "Chestnut Plaza Condo Assoc." is defined as the Customer. Id. at 1. The Subject Property is defined as "Chestnut Plaza Condominium," located at 1950 East Chestnut Expressway, Springfield, Missouri, 65802. Id.

Under the Policy, "Chestnut Plaza Condominium" is the "Insured." The Policy covers buildings 1950 through 1980, not just building 1950. See Dkt. 13-5 at 4.

Under the Fictitious Name's registration documents, "Chestnut Plaza Condominiums" is the registered name, and it is wholly owned by Courtney. Dkt. 13-2. The Fictitious Name is registered to building 1950 on East Chestnut Expressway. See id.

The determination that a contractual term is ambiguous is a question of law. See Cicciarella v. Amica Mut. Ins. Co. , 66 F.3d 764, 768 (5th Cir. 1995). A contract is ambiguous only "when its meaning is uncertain and doubtful or it is reasonably susceptible of more than one meaning." Id. (citing Coker v. Coker , 650 S.W.2d 391, 393 (Tex. 1983) ). Once a court determines a contractual provision is ambiguous, the meaning of that provision and the parties’ intent are questions of fact. Id.

The Agreement contains multiple ambiguities:

1. The plain language defines the Subject Property as "Chestnut Plaza Condominiums, 22ksf of standing seam, and located at the following address: 1950 E. Chestnut Expwy Springfield MO 65802." Is the Subject Property the general condominium complex, which would encompass buildings 1950 through 1980 on East Chestnut Expressway? Is the Subject Property only building 1950? Is the Subject Property only the "22ksf of standing seam" on building 1950?

2. If the Agreement only applies to building 1950, or only the "22ksf of standing seam" on building 1950, then JC Enterprises could be understood as "the owner" of the Subject Property. If the Agreement applies to buildings 1950 through 1980, then JC Enterprises is an owner of a subsidiary unit, which then raises the question of who is "the owner" under the Agreement.

3. The plain language states, "The party signing for Customer represents and warrants his authority to bind Customer hereto and/or bind the owner of the Subject Property ... to this Agreement." Focusing on "and/or," does the language mean the Agreement binds both the Customer and the owner of the Subject Property? Or does the language mean, in the event the signer could not bind the Customer, the signer binds only the owner of the Subject Property? The answers to Ambiguities 1 and 2 will affect the answer to this Ambiguity.

4. Where the owner of the Subject Property and owner of a Policy are different, can the Agreement bind both, or must it only bind one?

Because the Agreement's plain language, under these circumstances, is susceptible to more than one meaning, the Agreement is ambiguous as a matter of law. See id. Thus, what is the Subject Property and to whom does the Agreement apply—both questions that squarely impact the jurisdictional analysis—are questions of fact. See Cicciarella , 66 F.3d at 768. Answering these questions must be deferred until the motion for summary judgment stage or at trial. See id. For jurisdictional purposes only, the Agreement's forum selection clause binds both Defendants at this early stage of litigation.

Because both Defendants are bound by the forum selection clause, the Court proceeds with assessing the propriety of transferring venue.

D. TRANSFERRING VENUE

In a typical case involving transfer of venue under 28 U.S.C. § 1404, the party seeking transfer must establish good cause for the transfer. In re Volkswagen of Am., Inc. , 545 F.3d 304, 315 (5th Cir. 2008) (en banc). To determine whether good cause exists, courts consider a number of private and public interest factors. See id. The private interest factors include "(1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive." Id. (citations omitted). The public interest factors include: "(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws [or in] the application of foreign law." Id.

"The foregoing analysis changes, however, when, as here, the suit is premised upon a written instrument that includes a valid forum selection clause." Haughton v. Plan Adm'r of Xerox Corp. Retirement Income Guarantee Plan , 2 F. Supp. 3d 928, 936 (W.D. La. 2014) (citing Atlantic Marine Constr. Co., Inc. v. U.S. Dist. Ct. for W. Dist. of Texas , 571 U.S. 49, 134 S.Ct. 568, 187 L.Ed.2d 487 (2013) ). Where there is a valid forum selection clause, the party resisting it will be given no weight as to their preferred forum, and the court cannot consider arguments concerning the private interest factors. See Atlantic Marine , 571 U.S. at 63–64, 134 S.Ct. 568. Further, the United States Supreme Court has instructed that the public interest factors will rarely defeat a forum selection clause, as such clauses should control except in unusual cases with extraordinary circumstances. See id. at 62, 64, 134 S.Ct. 568. Therefore, the Court reviews the four public interest factors below.

1. Administrative Difficulties Flowing from Court Congestion

This factor considers "not whether transfer will reduce a court's congestion, but whether a trial may be speedier in another court because of its less crowded docket." Hillestad v. LLOG Exploration Co., LLC , No. 3:17-cv-341, 2018 WL 4938708, at *7 (S.D. Tex. Sept. 20, 2018) (cleaned up), report and recommendation adopted , 2018 WL 4931783 (S.D. Tex. Oct. 11, 2018). Of the four public interest factors, this factor "appears to be the most speculative" and it, alone, should not outweigh the other public interest factors. Frito-Lay N. Am., Inc. v. Medallion Foods, Inc. , 867 F. Supp. 2d 859, 871 (E.D. Tex. 2012).

For a twelve-month period ending in June 30, 2020, judges in the Eastern District of Texas had approximately 397 civil cases per judgeship, with a median time of 9.2 months for disposing a civil case.⁴ For the Western District of Missouri, there were approximately 333 civil cases per judgeship, with a median time of 7.2 months for disposing a civil case.⁵ Because the Western District of Missouri has fewer cases per judgeship and disposes of cases faster than the Eastern District of Texas, this factor weighs slightly in favor of transfer. See Frito-Lay , 867 F. Supp. 2d at 871–72 (finding this factor weighs in favor of federal district with fewer cases per judge); Hanby v. Shell Oil Co. , 144 F. Supp. 2d 673, 679 (E.D. Tex. 2001) (same, but for a division of a federal district).

4 See U.S. District Courts—National Judicial Caseload Profiles, United States District Courts , https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0630.2020.pdf.

5 Id.

2. Local Interests in Having Localized Interests Decided at Home

This factor seeks to "uphold" the principle that "[j]ury duty is a burden that ought not to be imposed on the people of a community which has no relation to the litigation." Haughton , 2 F. Supp. 3d at 937 ; In re Volkswagen AG , 371 F.3d 201, 206 (5th Cir. 2004) (citations omitted). The factor "generally favors where the acts giving rise to the lawsuit occurred." Metromedia Steakhouses Co. v. BMJ Foods P.R., Inc. , No. 3:07-cv-2042-D, 2008 WL 794533, at *3 (N.D. Tex. Mar. 26, 2008). In disputes involving real property, this factor weighs in favor of the location of the property. See Van Rooyen v. Greystone Home Builders, LLC , 295 F. Supp. 3d 735, 748 (N.D. Tex. 2018) ; Mhsh Holdings, LLC v. Certain UWs at Lloyd's/MSF Pritchard Syndicate , No. 3:20-cv-3354-X, 2020 WL 7056316, at *2 (N.D. Tex. Dec. 2, 2020).

While Stellar Restoration is a Texas entity, this dispute has more touchpoints with the transferee court. According to Defendants, the following events took place in Missouri:

• Stellar Restoration's sales representative "approached" Courtney at the Property, speaking with Courtney and his office manager near Courtney's desk for an "initial solicitation."

• Several days after this first visit, on February 4, 2020, Stellar Restoration's sales representative visited Courtney again, at which point the Agreement was signed.

• Stellar Restoration initiated further communications by emailing and calling Courtney's assistant.

See Dkt. 10 at 16–17 (representations in the Motion); Dkt. 10-2 at 3–5 (declaration of Courtney); Dkt. 10-3 at 3 (declaration of Courtney's assistant).

Additionally, the Property is located in Missouri, and the Agreement's performance is to be carried out in Missouri. See Dkt. 8 at 3–7. Thus, at first blush, this factor weighs in favor of transfer. See Van Rooyen , 295 F. Supp. 3d at 748. However, because neither party has made a jury demand, there is no juror—Texan or Missourian—who will be burdened by this case.⁶ To the extent this factor weighs in favor of transfer, it does so minimally. See Clark v. Kellogg Brown & Root, LLC , No. 2:07-cv-191, 2008 WL 11357986, at *2 (E.D. Tex. Jan. 14, 2008) (affording this factor little weight where there is no jury demand), report and recommendation adopted , 2008 WL 11357985 (E.D. Tex. Feb. 20, 2008).

6 Notably, the Agreement provides, "The parties hereto mutually agree to waive the right of trial by jury as to any matter arising from or relating to this Agreement." Dkt. 13-4 at 4 (emphasis removed).

3. Familiarity of the Forum with the Law That Will Govern the Case

The Agreement contains a choice of law clause that provides Texas law governs. See Dkt. 13-4 at 4. Although the transferee court is capable of applying Texas law, this Court has greater familiarity with Texas law. See id. at 748–49 ; Abramov v. Otis Elevator Co. , No. 3:11-cv-440-D, 2011 WL 5081560, at *8 (N.D. Tex. Oct. 25, 2011) (concluding Nevada court would be more familiar with Nevada law, though Texas court was equally capable).

Additionally, the Court takes judicial notice of Stellar Restoration's other lawsuits. To the Court's best knowledge, from 2014 to 2020, Stellar Restoration has filed over fifty (50) lawsuits, mostly in Collin County state court. See, e.g. Stellar Restoration Servs., LLC v. McClure , No. 296-01928-2014 (296th Dist. Ct., Collin County, May 20, 2014); Stellar Restoration Servs., LLC v. Malekan , No. 471-05915-2020 (471st Dist. Ct., Collin County, Nov. 10, 2020).

Thus far, at least six (6) of these lawsuits, including this one, have been removed to this Court, all alleging a similar fact pattern. See Stellar Restoration Servs., LLC v. Silva Props., LLC , No. 4:17-cv-366-ALM, Dkt. 6 (E.D. Tex. June 28, 2017) (alleging Arkansas limited liability company breached restoration services agreement); Stellar Restoration Servs., LLC v. Shreveport Celebration Church , No. 4:19-cv-372-RWS-KPJ, Dkt. 1-2 (E.D. Tex. May 17, 2019) (same, but Louisiana non-profit corporation); Stellar Restoration Servs., LLC v. Total Yard Care, Inc. , No. 4:19-cv-470-SDJ-KPJ, Dkt. 1-2 (E.D. Tex. June 27, 2019) (same, but Louisiana corporation); Stellar Restoration Servs., LLC v. Martin , No. 4:20-cv-815-ALM, Dkt. 1-3 (E.D. Tex. Oct. 22, 2020) (same, but Montana limited liability company); Stellar Restoration Servs. , No. 4:20-cv-913-SDJ, Dkt. 1-3 (E.D. Tex. Nov. 25, 2020) (same, but Arkansas individuals).

Because this Court is more familiar with Texas law and accustomed to suits filed by Stellar Restoration, this factor weighs heavily against transfer.

4. Avoidance of Unnecessary Problems of Conflict of Laws or the Application of Foreign Law

Finally, there are no conflict of law issues or problems that may arise from the application of foreign law. Because there is no meaningful dispute to this factor, the Court finds it weighs neutrally. See Hanby v. Shell Oil Co. , 144 F. Supp. 2d 673, 679 (E.D. Tex. 2001) ; Coleman v. Brozen , No. 4:19-cv-705-ALM, 2020 WL 2200220, at *7 (E.D. Tex. May 6, 2020).

As stated herein, two public interest factors weigh in favor of transferring this action to the Western District of Missouri, one factor weighs against transfer, and one factor weighs neutrally. Because the comparative congestion of the courts is the "most speculative" factor, the Court affords it little weight. See Frito-Lay , 867 F. Supp. 2d at 871. Because there is no jury demand in this case, the localized interest factor is also given little weight. See Clark , 2008 WL 11357986, at *2. Because the Court is familiar with Texas law and is well-acquainted with suits brought by Stellar Restoration, the familiarity-with-the-law factor weighs strongly against transfer. On balance, the Court does not recommend granting Defendants’ motion to transfer.

IV. CONCLUSION

For the foregoing reasons, the Court recommends the Motion (Dkt. 10) be DENIED .

Within fourteen (14) days after service of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).

A party is entitled to a de novo review by the district court of the findings and conclusions contained in this report only if specific objections are made, and failure to timely file written objections to any proposed findings, conclusions, and recommendations contained in this report shall bar an aggrieved party from appellate review of those factual findings and legal conclusions accepted by the district court, except on grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. Id. ; Thomas v. Arn , 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; Douglass v. United Servs. Auto Ass'n , 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds , 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten (10) to fourteen (14) days).

So ORDERED and SIGNED this 11th day of March, 2021.