Orix Public Finance, LLC v. Lake County Housing and Redevelopment Authority, Minnesota et al
Filing
21
MEMORANDUM OPINION AND ORDER granting 5 Motion to Dismiss. (Ordered by Chief Judge Sidney A Fitzwater on 8/16/2011) (skt)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ORIX PUBLIC FINANCE, LLC,
Plaintiff,
VS.
LAKE COUNTY HOUSING AND
REDEVELOPMENT AUTHORITY,
MINNESOTA, et al.,
Defendants.
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§ Civil Action No. 3:11-CV-0678-D
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MEMORANDUM OPINION
AND ORDER
The court must decide whether it can exercise in personam jurisdiction over two
Minnesota public entities in a lawsuit arising from an aborted contract centered in Minnesota,
to be performed largely in that state and governed by Minnesota law, where the Texas
contacts are based on the fortuity of the plaintiff’s presence here. Concluding that the court
cannot exercise in personam jurisdiction, it dismisses this case without prejudice by
judgment filed today.
I
A
This is an action by plaintiff Orix Public Finance, LLC (“Orix”) against defendants
Lake County Housing and Redevelopment Authority, Minnesota (“LCHRA”) and Lake
County, Minnesota (“Lake County”) for breach of contract and declaratory judgment. Orix
alleges in its state-court petition1 that, in late 2010, defendants and their financial advisor,
Northland Securities, Inc. (“Northland”), sought funding from Orix for the Lake County
Fiber-Optic Telecommunications Project (the “Project”), of which National Public
Broadband (“NPB”) was to be the operator. The goal of the Project was to provide high
speed telecommunications, Internet, and video services to homes and businesses in
Minnesota. Defendants anticipated that the funding for the Project would come from a grant
and loan from the federal government via the Rural Utilities Service (“RUS”), and from
matching funds from Lake County. Lake County sought out Orix to obtain gap financing to
cover expenses that the RUS loan and grant could not cover. Based on Lake County’s
representations that a binding commitment was needed quickly, Orix and Lake County began
negotiating a bond purchase agreement (the “Agreement”) that provided for a 12% interest
rate and gave Orix a security interest and a right to receive cash flow revenue proportionally
with the rights held by RUS. During the negotiations, defendants represented to Orix that
RUS had changed its policy and now required that any other security interests and rights to
cash flow revenue be subordinate to RUS’s security interests and rights to cash flow revenue.
In December 2010 Orix and Lake County entered into the Agreement.
Under the Agreement, LCHRA agreed to issue bonds, and Orix agreed to purchase
them. The proceeds were intended to (1) finance a portion of the Project ineligible for
payment by the RUS loan or grant, (2) fund a reserve fund to secure payment for the bonds,
1
The case was filed in Texas state court and removed to this court.
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(3) fund interest on the bonds and the RUS loan, and (4) pay costs associated with issuing
the bonds. Orix agreed to purchase a maximum principal amount of the bonds of $6.25
million at an interest rate not to exceed 15%. Orix expected the agreement to close by the
end of February 2011 because of RUS deadlines, but defendants’ agents advised Orix that
RUS had granted an extension to the end of April. Orix meanwhile discovered a press
release dated February 8, 2011 that stated that the Lake County Board of Commissioners (the
“Board”) had approved a direct investment of Lake County’s funds and did not intend to
issue bonds to fund the Project.
Orix alleges in its state-court petition that defendants unilaterally repudiated the
Agreement. Orix attempted to negotiate with defendants to restructure the bond issuance,
but defendants notified Orix that they were not in a position to perform the Agreement and
that the RUS had fully rejected the transaction contemplated by the Agreement. According
to Orix, defendants did not provide specific reasons or evidence supporting their allegation
that RUS had rejected the Agreement. This lawsuit followed.
B
Defendants move to dismiss for lack of in personam jurisdiction pursuant to Fed. R.
Civ. P. 12(b)(2). They contend that they have no connection with Texas; the Agreement
relates to a proposed issuance of bonds for a project to install broadband in Minnesota;
defendants are municipalities created under Minnesota law who conduct no business in Texas
and have no purposeful contacts with Texas; and the Agreement was executed by Lake
County, Minnesota and is not performable in Texas. Defendants maintain that the court lacks
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specific jurisdiction over them because neither defendant purposefully directed any activities
to Texas and because Orix’s claim does not arise from or relate to a defendant’s contact with
Texas. Defendants posit that they are Minnesota municipalities with no contact with Texas
in connection with the Agreement; the Agreement relates to a project wholly located within
the state of Minnesota; neither defendant traveled to Texas in connection with the
Agreement; nothing in the Agreement calls for a defendant to perform in Texas; the
Agreement dictates that the bonds are to be delivered in New York, not Texas; and the bonds
were to be secured by personal property in Minnesota. Defendants maintain that the court
lacks general jurisdiction because defendants do not have sufficiently systematic and
continuous contacts with Texas. They assert that, even if they have minimum contacts with
Texas, the exercise of jurisdiction would not comport with traditional notions of fair play and
substantial justice.
Orix opposes defendants’ motion and contends in the alternative that the court should
transfer the case to the District of Minnesota rather than dismiss it. Orix maintains that the
following contacts establish the court’s specific jurisdiction: (1) defendants solicited Orix,
a Texas resident, to enter into a contractual relationship with defendants; (2) defendants
communicated with Orix, a Texas resident, by email and telephone; (3) defendants entered
into a contract requiring partial performance in Texas; (4) defendants established a long-term
continuing relationship with Orix2; and (5) defendants knew that Orix was located in Texas.
2
Orix’s response states that defendants entered into a long-term continuing
relationship with defendants, but the court infers that Orix intended to assert that defendants
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Defendants reply that it is indisputable that the nexus of the Agreement is centered
squarely in Minnesota because the Agreement is governed by Minnesota law, and because
the bonds are to be issued in Minnesota pursuant to Minnesota law for the purpose of
developing a broadband infrastructure in Minnesota. They maintain that Orix has not
established that the court has personal jurisdiction over them because no representative of
defendants set foot in Texas in connection with the Agreement; the contacts on which Orix
relies are based on the mere fortuity that Orix happens to be a Texas resident and do not
support Orix’s argument that the defendants purposely directed activities toward Texas or
purposely availed itself of the privileges of conducting activities in Texas; and the contacts
on which Orix relies are not those of defendants but of third parties (presumably, Northland
and NPB) who did not have the authority to bind defendants to the Agreement.3
entered into a long-term continuing relationship with Orix.
3
As to agency, defendants maintain that Orix has not made a sufficient showing that
any of the communications between NPB or Northland and Orix or that any contacts that
Northland or NPB had with Texas are attributable to defendants for jurisdictional purposes.
Defendants aver that under Minnesota law, neither NPB nor Northland had the power to
enter into the Agreement for defendants.
The court permitted Orix to file a surreply to defendants’ reply. Orix’s surreply and
defendants’ final reply focus on whether the actions of purported agents (Northland and
NPB) can be attributed properly to defendants for purposes of jurisdiction. The court holds
that, even considering the contacts made by Northland and NPB with Texas to be contacts
made by defendants with Texas, Orix has not established that defendants have minimum
contacts with Texas. The court therefore declines to address whether the contacts made by
Northland and/or NPB can be attributed to defendants for jurisdictional purposes.
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II
The determination whether a federal district court has in personam jurisdiction over
a nonresident defendant is bipartite. The court first decides whether the long-arm statute of
the state in which it sits confers personal jurisdiction over the defendant. If it does, the court
then resolves whether the exercise of jurisdiction is consistent with due process under the
United States Constitution. See Mink v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th Cir. 1999).
Because the Texas long-arm statute extends to the limits of due process, the court need only
consider whether exercising jurisdiction over defendants would be consistent with the Due
Process Clause of the Fourteenth Amendment. See id.; Alpine View Co. v. Atlas Copco AB,
205 F.3d 208, 214 (5th Cir. 2000).
The Due Process Clause of the Fourteenth Amendment permits
the exercise of personal jurisdiction over a nonresident
defendant when (1) that defendant has purposefully availed
himself of the benefits and protections of the forum state by
establishing “minimum contacts” with the forum state; and (2)
the exercise of jurisdiction over that defendant does not offend
“traditional notions of fair play and substantial justice.” To
comport with due process, the defendant’s conduct in
connection with the forum state must be such that he “should
reasonably anticipate being haled into court” in the forum state.
Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999) (footnotes omitted).
The defendants’ contacts with the forum may support either specific or general
jurisdiction over the defendants. Mink, 190 F.3d at 336. “Specific jurisdiction exists when
the nonresident defendant’s contacts with the forum state arise from, or are directly related
to, the cause of action. General jurisdiction exists when a defendant’s contacts with the
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forum state are unrelated to the cause of action but are ‘continuous and systematic.’” Id.
(citations omitted).4
When a court rules on a motion to dismiss for lack of personal
jurisdiction without holding an evidentiary hearing, it must
accept as true the uncontroverted allegations in the complaint
and resolve in favor of the plaintiff any factual conflicts posed
by the affidavits. Therefore, in a no-hearing situation, a plaintiff
satisfies his burden by presenting a prima facie case for personal
jurisdiction.
Latshaw, 167 F.3d at 211 (footnotes omitted).
To determine whether exercising jurisdiction would satisfy traditional notions of fair
play and substantial justice, the court examines: (1) the defendants’ burden, (2) the forum
state’s interests, (3) the plaintiff’s interest in convenient and effective relief, (4) the judicial
system’s interest in efficient resolution of controversies, and (5) the states’ shared interest
in furthering fundamental social policies. Ruston Gas Turbines, Inc. v. Donaldson Co., 9
F.3d 415, 421 (5th Cir. 1993).
III
A
Orix maintains that the court can exercise specific in personam jurisdiction on the
following grounds. First, Orix maintains that the actions of an agent (Northland) can be used
to establish jurisdiction over the principal (defendants). Defendants, through Northland,
4
As defendants note in their reply, Orix does not appear to assert that the court has
general jurisdiction. The court therefore focuses solely on whether it has specific
jurisdiction.
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initiated contact with Orix in Texas by soliciting Orix to participate in the bond proposal, and
Northland represented to Orix that it was acting as the exclusive placement agent in offering
the bonds. Orix argues in the alternative that, if Northland was not acting as defendants’
agent, defendants ratified Northland’s actions.
Second, Orix avers that it participated in the discussions and negotiations with
defendants from Dallas. Orix argues that after the initial contact between Northland and
Orix, the parties engaged in substantial discussions regarding the Project and negotiated the
Agreement through emails and telephone conferences, and that the telephone conferences
and emails involved representatives of Orix, representatives of Northland, defendants’
counsel, and NPB, the former operator of the Project.
Third, Orix contends that defendants sent drafts of the Agreement and the signature
pages of the Agreement to Orix in Texas.
Fourth, Orix maintains that its Chief Executive Officer executed the Agreement in
Dallas.
Fifth, Orix contends that the Agreement requires that partial performance take place
in Texas. Orix lists the following as activities that would occur in Texas under the
Agreement: bonds and repayment would be further secured by a letter of credit approved by
Orix; the parties would negotiate the definition of excess cash flow; Orix would be able to
review all contracts and other due diligence materials; bond counsel’s opinions would be
delivered to Orix; notices to Orix would be delivered to Dallas; defendants would reimburse
Orix for its out-of-pocket expenses; and, in the event of termination, defendants would pay
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a termination fee to Orix.
Sixth, Orix maintains that the Agreement contemplates a ten-year ongoing relationship
between Orix and defendants because, inter alia, the Agreement has a term of ten years.
Seventh, Orix posits that the Agreement has no forum selection clause and that,
although the Agreement provides that Minnesota law applies, this factor can be outweighed
by other considerations.
Orix maintains generally that its claims arise out of defendants’ contacts with Texas.
Orix contends that its claims are for breach of the Agreement and for declaratory judgment
regarding the construction of the Agreement, the rights and obligations of Orix and
defendants, defendants’ repudiation, the termination of the Agreement, and Orix’s
entitlement to damages and/or a termination fee. Orix argues that its claims clearly arise out
of and relate to the Agreement established through defendants’ contacts with Texas.
Finally, Orix contends that the court’s exercise of jurisdiction over defendants
comports with fair play and substantial justice.
B
Under the Due Process Clause of the Fourteenth Amendment, “the mere contracting
with a resident of the forum state is not in itself sufficient to establish minimum contacts such
that the forum state may exercise personal jurisdiction over the defendant.” Brammer Eng’g,
Inc. v. E. Wright Mountain L.P., 307 Fed. Appx. 845, 847-48 (5th Cir. 2009) (per curiam)
(citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 479 (1985)). Further, the Fifth
Circuit held in Brammer Engineering that activities incidental to forming a contract—such
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as communications and requests for documents sent to the forum state because the forum
state is the home of one of the parties to the contract—are insufficient to constitute
purposeful availment or to amount to the minimum contacts required to support personal
jurisdiction. Id. at 848; see also McFadin v. Gerber, 587 F.3d 753, 760 (5th Cir. 2009) (“We
have held that communications relating to the performance of a contract themselves are
insufficient to establish minimum contacts.”). Instead, the court is to consider the anticipated
place of performance of the contract, choice-of-law provisions, and other relevant factors to
determine whether it can exercise specific personal jurisdiction. See Brammer Eng’g, 307
Fed. Appx. at 848; see also Burger King, 471 U.S. at 479 (“It is these factors—prior
negotiations and contemplated future consequences, along with the terms of the contract and
the parties’ actual course of dealing—that must be evaluated in determining whether the
defendant purposefully established minimum contacts with the forum.”). The Brammer
Engineering panel noted that the performance of the contract was centered in Texas, not the
forum state (Louisiana), and that the contract included a Texas choice-of-law provision.
Brammer Engineering, 307 Fed. Appx. at 848-49. The court also found relevant the fact that
the contacts with Louisiana were merely incidental to performance of the Texas-centered
contract and resulted from the coincidence that one party was a Louisiana resident. Id. at
848.
The court should also look to whether a long-term relationship between the parties is
planned. See Command-Aire Corp. v. Ontario Mech. Sales & Serv. Inc., 963 F.2d 90, 95 (5th
Cir. 1992) (considering long-term relationship a factor in determining whether contract
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produced minimum contacts). But a contract that creates a long-term relationship is not
alone a contact that is sufficient to establish personal jurisdiction. See McFadin, 587 F.3d
at 760 (rejecting in personam jurisdiction despite plaintiffs’ reliance “on the fact that the
contract created a ten-year sales representation relationship between the parties and that there
were
significant
communications—including
sales
orders
and
commission
payments—between [the defendant] in Colorado and the [plaintiffs] in Texas.”).
In determining whether minimum contacts exist in a breach of contract case, there is
an important difference between “communications which actually give rise to intentional tort
claims and communications which ‘merely solicited business from the forum, negotiated a
contract, formed an initial attorney-client relationship, or involved services not alleged to
form the basis of the complaint.’” Planet Beach Franchising Corp. v. Fisher & Zucker
L.L.C., 2011 WL 3268645, at *3 (E.D. La. July 28, 2011) (quoting Wien Air Alaska, Inc. v.
Brandt, 195 F.3d 208, 213 (5th Cir. 1999)). Only communications that actually give rise to
an intentional tort claim can provide the basis for personal jurisdiction. See id.; see also Am.
Eagle Ins. Co. v. Teague-Strebeck Motors, Inc., 1997 WL 452948, at *5 (N.D. Tex. Aug. 5,
1997) ( Solis, J.) (“Under prevailing Fifth Circuit authority, the exchange of communications
in the process of contract formation cannot be characterized as the type of purposeful activity
through which a defendant might avail itself of the benefits and protection provided by the
forum state.” (citation omitted)). For example, in Wien Air Alaska the plaintiff alleged that
the defendant committed several tortious acts outside of Texas that were directed toward the
plaintiff in Texas. See Wien Air Alaska, 195 F.3d at 212. The defendant’s contacts with
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Texas included letters, faxes, and telephone calls to Texas, the contents of which included
fraudulent misrepresentations and promises, and the communications failed to disclose
material information. Id. The defendant argued that communications directed into a forum
are alone insufficient to support a finding of minimum contacts and cited several cases in
support. Id. at 213. The court noted that
[i]n all of these cases, however, the communications with the
forum did not actually give rise to a cause of action. Instead, the
communications merely solicited business from the forum,
negotiated a contract, formed an initial attorney-client
relationship, or involved services not alleged to form the basis
of the complaint. These cases are thus distinguishable from the
present case. When the actual content of communications with
a forum gives rise to intentional tort causes of action, this alone
constitutes purposeful availment.
Id.
“The case law recognizes that in some circumstances, an out-of-state party’s
communications with a party in the forum state can provide a sufficient basis for specific
personal jurisdiction in that forum.
In such cases, however, the content of the
communications has a direct connection to the causes of action asserted.” Barney F. Kogen
& Co. v. Tred Avon Assocs. Ltd., 393 F.Supp.2d 519, 523-24 (S.D. Tex. 2005); see also
Lewis v. Fresne, 252 F.3d 352, 359 (5th Cir. 2001) (noting that in cases not involving an
intentional tort, mere communications and negotiations with a resident of the forum state
were not enough to subject the non-resident defendant to the forum state’s jurisdiction). For
example, in cases of alleged fraud and/or misrepresentation in connection with a
communication or a contract, the mere communication or contact may be sufficient for
minimum contacts. Barney F. Kogen, 393 F.Supp.2d at 524 (citing Wien Air Alaska, 195
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F.3d at 213; Lewis, 252 F.3d at 358-60; S & J Diving, Inc. v. Doo-Pie, Inc., 2002 WL
1163627, at *3 (S.D. Tex. May 30, 2002)). But in the absence of an alleged intentional tort
committed via the contents of the communication into the forum state, “the exchange of
communication between a resident and non-resident regarding the formation of a contract is
insufficient to confer jurisdiction.” Harch Hyperbarics, Inc. v. Martinucci, 2010 WL
3398884, at *4 (E.D. La. Aug. 20, 2010) (citing Stuart v. Spademan, 772 F.2d 1185, 1192
(5th Cir. 1985)).
Additionally, the Fifth Circuit “has consistently looked to the place of contractual
performance to determine whether the making of a contract with a Texas resident is
sufficiently purposeful to satisfy minimum contacts.” Jones v. Petty-Ray Geophysical
Geosource, Inc., 954 F.2d 1061, 1068 (5th Cir. 1992); see also Freudensprung v. Offshore
Technical Servs., Inc., 379 F.3d 327, 345 (5th Cir. 2004) (holding that significance of alleged
minimum contacts is severely diminished by fact that contract contemplated performance
outside the forum state); Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 778 (5th Cir. 1986)
(noting that finding of no minimum contacts is bolstered by fact that performance of contract
was centered in Oklahoma even though defendant mailed payments to Texas); Martinucci,
2010 WL 3398884, at *4 (noting that contract was not to be performed in forum state). “The
Fifth Circuit has made clear that engaging in activities related to the contract but which do
not encompass performance of the contract are insufficient to constitute minimum contacts.”
Martinucci, 2010 WL 3398884, at *4 (citation omitted). In Martinucci the court held that
the defendants did not have minimum contacts with the forum state through the mere
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formation of the contract where defendants communicated via telephone and email with
plaintiffs in the forum state regarding the formation of the contract and traveled to the forum
state, but the performance of the contract and alleged fraud occurred outside the forum state.
Id.
Finally, if the contract specifies that it is governed by non-forum law, this weighs
against a finding of minimum contacts. “The significance of these alleged minimum contacts
is severely diminished by the fact that the contract at issue specified that it was to be
governed by [non-forum] law[.]” Freudensprung, 379 F.3d at 345; Holt Oil, 801 F.2d at 778
(holding that significance of Texas contact was diminished by contractual provision
specifying that Oklahoma law governed contract); Hydrokinetics, Inc. v. Alaska Mech., Inc.,
700 F.2d 1026, 1029 (5th Cir. 1983) (holding that although defendant’s offer to contract was
accepted in Texas, the significance of that contact was diminished by contractual provision
specifying that agreement was governed by Alaska law).
C
Accepting Orix’s uncontroverted allegations as true, the court concludes the contacts
on which Orix relies are sufficiently similar to the ones asserted by the plaintiff in Brammer
Engineering that the court lacks sufficient minimum contacts over defendants. In the instant
case, the Agreement is centered in Minnesota rather than Texas, and performance is to take
place primarily outside of Texas. This weighs against a finding of minimum contacts. See,
e.g., Holt Oil, 801 F.2d at 778. The Project is located wholly within Minnesota and serves
homes and businesses within that state. The legal entities—including LCHRA, the party who
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was to issue the bonds under the Agreement—are located in Minnesota. The bonds (to be
delivered to New York) were to be secured by property located in Minnesota. The
Agreement provides that Minnesota law governs, which severely diminishes the significance
of any contacts that defendants have with Texas. See, e.g., Freudensprung, 379 F.3d at 345.
And Orix does not allege that any representative or agent of defendants visited Texas in
connection with the Agreement.
The contacts that this litigation has with Texas are largely based on the fortuity that
Orix is located in Texas and that it undertook acts in this state. But “[t]he mere fortuity that
a party to a contract happens to be a Texas resident, coupled with that party’s unilateral
performance in the forum state, is not enough to confer jurisdiction.” Chang v. Virgin
Mobile USA, LLC, 2009 WL 111570, at *5 (N.D. Tex. Jan. 16, 2009) (Fitzwater, C.J.) (citing
Holt Oil, 801 F.2d at 778). And even if defendants or Northland solicited Orix’s business
in Texas, merely soliciting business within the state does not constitute purposeful availment.
See, e.g., Wien Air Alaska, 195 F.3d at 213. Nor are mere negotiations with a resident of the
forum state enough. See also Lewis, 252 F.3d at 359. And although the Agreement may
have contemplated a ten-year relationship between Orix and defendants, this is not alone
sufficient to confer personal jurisdiction over defendants. See, e.g., McFadin, 587 F.3d at
760. Finally, Orix does not allege that defendants committed an intentional tort or that
defendants committed an intentional tort through their communications with Orix in Texas.
Absent an allegation of an intentional tort in the contents of the communications,
communication with Orix in Texas is insufficient to establish minimum contacts. See, e.g.,
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Martinucci, 2010 WL 3398884, at *4; Barney F. Kogen, 393 F.Supp.2d at 524.
Because Orix has not established that defendants have sufficient minimum contacts
with Texas from which their causes of action arise, the court grants defendants’ motion to
dismiss.
IV
Orix moves in the alternative to transfer this case to the District of Minnesota pursuant
to 28 U.S.C. § 1631. Defendants reply that Orix has not made the required showing for
transfer, and that dismissal is appropriate.
Under § 1631, when the court finds that it lacks jurisdiction, “the court shall, if it is
in the interest of justice, transfer such action or appeal to any other such court in which the
action or appeal could have been brought at the time it was filed or noticed[.]” The decision
to transfer a case lies within the discretion of the district court. Caldwell v. Palmetto State
Sav. Bank of S.C., 811 F.2d 916, 919 (5th Cir. 1987) (per curiam). In some cases, “the
interests of justice may be best served by requiring the plaintiff[] to begin at the beginning
in the proper forum.” Id.; see also Cappa Fund III, LLC v. Acttherm Holding, A.S., 2010 WL
3766754, at *4 (N.D. Tex. Sept. 27, 2010) (Lindsay, J.) (exercising discretion to dismiss
action rather than transfer case where court lacked personal jurisdiction and it was unclear
whether California had jurisdiction over defendants).
Moreover, it is not clear that the court can transfer a case under § 1631 when the court
lacks personal jurisdiction. See, e.g., Rouben v. Parkview Hosp., Inc., 2010 WL 4537012,
at *2 (S.D. Miss. Nov. 2, 2010). Section 1631’s “lack of specificity has led to a division
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among the federal courts as to whether Section 1631 allows transfer only when subject matter
jurisdiction is lacking in the transferor court or if it extends to other types of jurisdiction
defects, including a lack of personal jurisdiction.” 15 Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure § 3842, at 8 (3d ed. 2007). “Although the federal courts are
pretty evenly divided on the subject, the better view appears to be that Section 1631 is limited
to subject matter jurisdiction defects and is unrelated to personal jurisdiction or venue.” Id.
at 11. The Fifth Circuit has not specifically addressed this issue, but it has recognized the
possibility that § 1631 may not permit a court to transfer a case where personal jurisdiction
is lacking. See Rouben, 2010 WL 4537012, at *2; see also Bentz v. Recile, 778 F.2d 1026,
1028 n.5 (5th Cir. 1985) (per curiam) (noting that other courts have held that § 1631 appears
from legislative history to apply only to cases in which the transferor court lacks subject
matter jurisdiction, but that the court need not reach the issue).
Because Orix has not established that it is in the interest of justice for the court to
transfer rather than dismiss this case, and because it is unclear whether the court can transfer
this case under § 1631 when it lacks in personam jurisdiction, the court in its discretion
declines to transfer this case to the District of Minnesota and instead dismisses the case
without prejudice.
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*
*
*
The court grants defendants’ April 8, 2011 motion to dismiss and dismisses this action
without prejudice by judgment filed today.
SO ORDERED.
August 16, 2011.
_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE
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