CRISSEN v. GUPTA et al

Filing 105

ORDER - Presently pending before the Court is Plaintiff Joshua Crissen's Motion to Reconsider Dismissal of Satyabala V. Gupta. 60 The Court GRANTS Mr. Crissen's Motion to Reconsider Dismissal of Satyabala V. Gupta, 60 . Accordingly, the portion of the Court's June 7, 2013 Order dismissing Ms. Gupta for lack of specific personal jurisdiction, [dkt. 43 at 5-9], is VACATED. The Court notes that Mr. Crissen has filed a First Amended Class Action Complaint which names Ms. Gu pta as a defendant. 85 Ms. Gupta is directed to answer the First Amended Class Action Complaint in accordance with applicable rules, and her deadline to do so shall begin to run on the date of this Order. (See Order.) Signed by Judge Jane Magnus-Stinson on 9/11/2013. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JOSHUA B. CRISSEN,
Plaintiff,
vs.
VINOD C. GUPTA, SATYABALA V. GUPTA,
WIPER CORPORATION, VIVEK V. GUPTA, and
BANCO POPULAR NORTH AMERICA,
Defendants.

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2:12-cv-00355-JMS-WGH

ORDER
Presently pending before the Court is Plaintiff Joshua Crissen’s Motion to Reconsider
Dismissal of Satyabala V. Gupta. [Dkt. 60.]
I.
BACKGROUND
Mr. Crissen initially filed this lawsuit against Vinod Gupta, Satyabala Gupta, and Wiper
Corporation (“Wiper”) on December 4, 2012, alleging that the Guptas and Wiper engaged in a
scheme whereby they purchased properties at tax sales in Indiana, and submitted fraudulent
certifications representing that they had paid certain costs relating to notification to the original
owner and title fees on properties that were eventually redeemed, without actually incurring the
costs. [Dkt. 1.] Along with a motion to dismiss filed by Mr. Gupta and Wiper, Ms. Gupta
moved to dismiss herself from the lawsuit because, she argued, the Court lacked personal
jurisdiction over her. [Dkt. 25 at 3-9.] With her motion, Ms. Gupta submitted an affidavit in
which she stated, among other things, that she:
•

has never owned any real property, or an interest in real property, in Indiana;

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has never done business in Indiana, individually or through an agent; and

1

•

has never participated in or bid at any of the tax sales identified in the exhibit
to the Complaint or purchased any of the properties identified in the exhibit,
and has never participated in any tax sale in Indiana or purchased any property
at a tax sale in Indiana.

[Dkt. 24 at 2, ¶¶ 6-7, 13-14.]
Because Mr. Crissen did not refute any of those statements, the Court – relying almost
entirely on Ms. Gupta’s affidavit – found that it did not have specific personal jurisdiction over
Ms. Gupta and dismissed her from the lawsuit. [Dkt. 43 at 8-9.]1 On July 5, 2013, Mr. Crissen
filed the pending Motion to Reconsider, based on documents he obtained through discovery
which he argues refute the statements Ms. Gupta made in her affidavit. [Dkt. 60.] The motion is
now ripe for decision.
II.
STANDARD OF REVIEW
A district court has the inherent power to reconsider interlocutory orders, as justice
requires, before entry of final judgment. Spencer County Redevelopment Comm’n v. AK Steel
Corp., 2011 U.S. Dist. LEXIS 7985, *3 (S.D. Ind. 2011); see Fed. R. Civ. P. 54(b) (providing
that any order “that adjudicates fewer than all the claims or the rights and liabilities of fewer than
all the parties…may be revised at any time before the entry of a judgment adjudicating all the
claims and all the parties’ rights and liabilities”). A motion to reconsider is appropriate where
the Court has misunderstood a party, where the Court has made a decision outside the adversarial
issues presented to the Court by the parties, where the Court has made an error of apprehension
(not of reasoning), where a significant change in the law has occurred, or where significant new
facts have been discovered. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185,
1

The Court also found that Mr. Crissen did not argue that the Court had general personal
jurisdiction over Ms. Gupta. [Dkt. 43 at 7.] Additionally, it rejected his only argument that the
Court could exercise specific personal jurisdiction based solely on the fact that Ms. Gupta is a
director of Wiper. [Id. at 8-9.]
2

1191 (7th Cir. 1990). A party seeking reconsideration cannot introduce new evidence that could
have been discovered before the original motion, or rehash previously rejected arguments.
Caisse Nationale de Credit Agricole v. CBI Indus., 90 F.3d 1264, 1269 (7th Cir. 1996).
III.
DISCUSSION
Mr. Crissen relies on the final factor that may warrant reconsideration: where significant
new facts have been discovered. Specifically, he argues that documents produced by Defendant
Banco Popular North America (“BPNA”) – who was not a defendant when the Court decided
Ms. Gupta’s motion to dismiss – show that the Court does have specific or general personal
jurisdiction over Ms. Gupta. [Dkt. 60 at 2-7.] The documents include copies of hundreds of
checks from 2006 to 2012, which are payable to various county treasurers in Indiana and are
signed by Ms. Gupta, and some of which contain the notation “tax sale” or “taxes” or “tax sale
buyer: Vinod Gupta” or “tax deeds,” or note the sale identification number or parcel number in
the “For” line. [Dkt. 58.] Mr. Crissen argues that the checks show that the Court has specific
personal jurisdiction because they show that Ms. Gupta had more than minimum contacts with
Indiana, and that she likely “participated in the operation or management of, and definitely
performed activities necessary or helpful to, [Mr. Gupta’s] and Wiper’s tax sale business in
Indiana. This involvement with Defendant’s tax sale business would render her liable to Plaintiff
and the class on their claims under Federal RICO and Indiana RICO.” [Dkt. 60 at 5.] Mr.
Crissen also argues that the Court has general personal jurisdiction over Ms. Gupta because the
checks show that her “contacts with Indiana are not random, fortuitous, attenuated or unilaterally
initiated by someone within Indiana. Rather, [her] systematic and continuous contacts with
Indiana demonstrate she purposefully availed herself of the laws and protections of Indiana.”
[Id. at 6-7.]
3

Mr. Gupta and Wiper2 respond that: (1) Mr. Crissen cannot prove that Ms. Gupta actually
wrote the checks and sent them to Indiana; (2) most of the checks were written in either May or
November, so “it would appear that most of those checks were in payment of semi-annual
property taxes on Indiana properties owned by Mr. Gupta” which were never redeemed so are
irrelevant; (3) Mr. Crissen waived his argument that the Court has general personal jurisdiction
over Ms. Gupta because he did not raise that argument in response to her motion to dismiss; and
(4) in any event, all Mr. Crissen has shown is that Ms. Gupta signed the checks, and that is not
enough to establish specific or general personal jurisdiction. [Dkt. 77 at 5-10.]3
A. Specific Personal Jurisdiction
In order to exercise specific personal jurisdiction over Ms. Gupta, her contacts with
Indiana “must directly relate to the challenged conduct or transaction.” Tamburo v. Dworkin,
601 F.3d 693, 702 (7th Cir. 2010). The Court finds that the checks demonstrate that Ms. Gupta
had significant contact with Indiana that relates directly to the conduct Mr. Crissen challenges
here. The following examples illustrate that at least some of the checks produced by BPNA and
signed by Ms. Gupta related to purchases by Mr. Gupta at tax sales of properties that were later
redeemed:

2

The briefing of the Motion to Reconsider presents an odd procedural posture. When Mr.
Crissen filed the motion, Ms. Gupta was no longer a defendant. Although the motion relates
exclusively to Ms. Gupta, Mr. Gupta and Wiper are the only parties that have responded to it.
Because Mr. and Ms. Gupta and Wiper were all represented by the same counsel before Ms.
Gupta was dismissed from the lawsuit, and are again now, the Court assumes that the arguments
asserted by Mr. Gupta and Wiper are really asserted on Ms. Gupta’s behalf.

3

Mr. Gupta and Wiper also argue that the checks are inadmissible hearsay, [dkt. 77 at 2-5], and
moved separately to strike the exhibit containing the checks, [dkt. 78]. The Court denied the
motion to strike and found that the Affidavit of Sharon Duncan, submitted by Mr. Crissen as an
exhibit to his reply brief, properly authenticated the checks. [Dkt. 89 at 1-2.] Accordingly, the
Court will consider the checks in connection with the Motion to Reconsider.
4

•

On October 25, 2006, Mr. Gupta was the highest bidder for four properties in
Warren County, Indiana. [Dkt. 80-3.] The bids on the properties totaled
$6,268.36. [Id.] That same day, Ms. Gupta signed a check to the Warren
County Treasurer for $6,268.36, noting in the “for” space “Tax Sale.” [Dkt.
58 at 3.] At least two of those four properties have been redeemed. [Dkt. 1-2
at 32 (showing Greg Cooper redeemed property 86009-00320-00, Brian
Miller redeemed property 86003-00190-01, and the Secretary of Veterans
Affairs redeemed property 86005-00137-14).]

•

On October 4, 2012, Mr. Gupta was the highest bidder for eight properties in
Orange County, Indiana. [Dkt. 80-2.] The bids on the properties totaled
$53,700. [Id.] On the same day, Ms. Gupta signed a check to the Orange
County Treasurer for $53,700. [Dkt. 58 at 186.] She noted on the check in
the “for” space “tax sale buyer: Vinod Gupta.” [Id.] At least one of those
properties has been redeemed, [dkt. 1-2 at 80 (reflecting that Roger Beets, Jr.
redeemed property 59-13-13-23-200-021.000-005)], and the one-year
redemption period for the other properties has not yet expired.

Mr. Gupta’s and Wiper’s arguments relating to specific personal jurisdiction are
unavailing. First, they argue that Mr. Crissen has not shown that Ms. Gupta actually wrote the
checks and mailed them to Indiana. But it is reasonable to infer that Ms. Gupta wrote the checks
and mailed them to the various counties in Indiana – and tellingly, Ms. Gupta does not claim
otherwise. Second Mr. Gupta and Wiper argue that even if Ms. Gupta mailed the checks, “drawn
on a joint bank account with her husband for payment on properties owned by Mr. Gupta,” that
alone is not enough to invoke specific personal jurisdiction. The Court disagrees and finds that
the signing (and likely writing and mailing) of the checks is enough to confer jurisdiction. The
fact that the bank account is joint with Mr. Gupta is irrelevant. Ms. Gupta wrote the checks for
the purchase of properties in Indiana that were later redeemed – the exact conduct challenged
here.4 Finally, Mr. Gupta and Wiper assert that many of the checks are dated in the months May

4

The cases Defendants cite for the proposition that “even assuming…that [Ms.] Gupta mailed
checks drawn on a joint bank account with her husband for payment on properties owned by Mr.
Gupta, that activity alone is not sufficient to invoke Indiana’s jurisdiction over her,” [dkt. 77 at
7], are inapposite to this case, where at least some of the checks Ms. Gupta signed were used to
purchase properties located in Indiana and eventually redeemed by Indiana residents. See Jamik,
5

or November, so were likely for the payment of property taxes and would not relate to properties
that were later redeemed. However, even if some of the checks were for tax payments on
properties owned by Mr. Gupta and never redeemed, Mr. Crissen has provided examples of at
least four properties that were redeemed after they were purchased through a check signed by
Ms. Gupta – the exact conduct at issue here.
The checks constitute evidence which was not available to Mr. Crissen when Ms. Gupta
filed her motion to dismiss, and which show that Ms. Gupta signed checks which were used to
purchase properties at tax sales that were later redeemed. 5 This is precisely the type of conduct
that is the subject of this litigation, and the Court finds that this new evidence is sufficient to
warrant reconsideration and to confer specific personal jurisdiction over Ms. Gupta.6

Inc. v. Days Inn, 74 F.Supp.2d 818, 822-23 (N.D. Ill. 1999) (Illinois company’s acts of
contacting New Jersey hotel to enter into contract to install bathroom-related items in the hotel
and mailing proposals from Illinois to New Jersey did not confer personal jurisdiction over New
Jersey hotel by Illinois court); Lakeside Bridge & Steel Co. v. Mountain State Constr. Co., 597
F.2d 596, 603-04 (7th Cir. 1979) (act of mailing purchase order to Wisconsin for structural
assemblies to be used for a construction project in Virginia by company with no other contacts
with Wisconsin was not sufficient to confer personal jurisdiction over company in Wisconsin);
Thos. P. Gonzalez Corp. v. Consejo Nacional De Produccion De Costa Rica, 614 F.2d 1247,
1249 (9th Cir. 1980) (use of mail or telephone was not enough to confer personal jurisdiction in
California over Costa Rican company which contracted with California company for purchase
and delivery of grain in Costa Rica – “[i]n none of the transactions…was California either the
source or destination of the grain”).
5

The Court is disturbed that many of the statements in Ms. Gupta’s affidavit – statements which
Ms. Gupta relied upon in her motion to dismiss, and which formed the basis for the Court’s
ruling on that motion – were not true. The Court strongly cautions Ms. Gupta and her counsel
that the Court takes this matter seriously, and that further misrepresentations may subject Ms.
Gupta, and perhaps her counsel, to sanctions.
6

Because the Court has found that it has specific personal jurisdiction over Ms. Gupta, it need
not, and will not, consider whether it also has general personal jurisdiction over her.
6

IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS Mr. Crissen’s Motion to Reconsider
Dismissal of Satyabala V. Gupta, [dkt. 60]. Accordingly, the portion of the Court’s June 7, 2013
Order dismissing Ms. Gupta for lack of specific personal jurisdiction, [dkt. 43 at 5-9], is
VACATED.

The Court notes that Mr. Crissen has filed a First Amended Class Action

Complaint which names Ms. Gupta as a defendant. [Dkt. 85.] Ms. Gupta is directed to answer
the First Amended Class Action Complaint in accordance with applicable rules, and her deadline
to do so shall begin to run on the date of this Order.
09/11/2013
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via ECF only:
Stephen E. Arthur
HARRISON & MOBERLY
[e-mail]
A. Richard Blaiklock
LEWIS WAGNER, LLP
[e-mail]
Gregory A. Blue
DILWORTH PAXSON LLP
[e-mail]
Bhavik R. Patel
SANDBERG PHOENIX & VON GONTARD, P.C.
[e-mail]

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Jesse B. Rochman
Sandberg Phoenix & Von Gontard P.C.
[e-mail]
John S. Sandberg
SANDBERG PHOENIX & VON GONTARD PC
[e-mail]
Marc Allen William Stearns
HARRISON & MOBERLY
[e-mail]
David J. Theising
HARRISON & MOBERLY
[e-mail]
Edward D. Thomas
LEWIS WAGNER LLP
[e-mail]

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