Rankin Construction National Builders LLC v. Frank H. Reis, Inc.

Filing 14

Memorandum Opinion and Order denying 10 Motion to Dismiss. (Ordered by Judge John McBryde on 8/4/2017) (tln)

.

· · U.S. DISTRICT COUlfT
1\fORTilliRN DlSTRlCT OF 'fEXAS

FIT

rc-.... c:

IN THE UNITED STATES DISTRICT CO R;T
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
RANKIN CONSTRUCTION NATIONAL
BUILDERS, L.L.C.,

AUG - 11 201 I

§
§
§

Plaintiff,

§

§

vs.

§

NO. 4:17-CV-530-A

§

FRANK H. REIS,
REIS GROUP,

INC. D/B/A THE

§
§
§

Defendant.

§

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, Frank H.
Reis,

Inc., d/b/a The Reis Group, to dismiss for lack of personal

jurisdiction. The court, having considered the motion, the
response of plaintiff, Rankin Construction National Builders,
L.L.C., the record, and applicable authorities, finds that the
motion should be denied.
I.
Plaintiff's Claims
on June 28, 2017, plaintiff filed its original petition in
the 352nct Judicial District Court of Tarrant County, Texas,
asserting claims against defendant for violation of the Texas
Deceptive Trade Practices-Consumer Protection Act, Tex. Bus. &
Com. Code§§ 17.41-.63, misrepresentation under the Texas
Insurance Code § 541.051, fraud,

and conversion.

Plaintiff alleged: Plaintiff is a framing contractor that
provides framing and construction-related services to commercial
builders. Plaintiff carries liability insurance coverage for the
services it provides on its projects. Defendant sells insurance
products. Defendant retained or employed Damian D'Arpino as an
agent for the purpose of advising clients on insurance products
sold by defendant and for the purpose of selling insurance
products, including commercial general liability insurance
policies. Defendant was an authorized agent to sell such
insurance and to bind coverage for certain insurance companies.
Defendant sold numerous policies on numerous projects to
plaintiff, issuing approximately eighty-five certificates of
liability insurance to plaintiff as insured. On March 7, 2016,
defendant delivered to plaintiff a certificate of liability
insurance for a policy on a construction project in New Jersey. A
fatal accident occurred on the project and when plaintiff gave
notice thereof it learned that the policy had never been in
effect and that the certificate of insurance was fraudulent.
Plaintiff also discovered that other certificates issued by
defendant were not valid when issued or coverage had lapsed or
been cancelled without notice to plaintiff.

2

On June 28, 2017, defendant filed its notice of removal,
bringing the action before this court. Doc. 1 1.
II.
Ground of the Motion
Defendant maintains that the court lacks personal
jurisdiction over it. Fed. R. Civ. P. 12 {b) (2).
III.

Applicable Legal Standard
The burden is on plaintiff to establish the court's
jurisdiction over defendant. Wilson v. Belin, 20 F.3d 644, 648
(5th Cir. 1994); Stuart v. Spademan, 772 F.2d 1185, 1192

(5th Cir.

1985). Personal jurisdiction need not be established by a
preponderance of the evidence at this stage; prima facie evidence
is sufficient. WNS, Inc. v. Farrow,

884 F.2d 200, 203

(5th Cir.

1989) . The court may resolve jurisdictional issues by reviewing
pleadings, affidavits, exhibits, any part of the record, and any
combination thereof. Command-Aire Corp. v. Ontario Mech. Sales &
Serv., Inc.,

963 F.2d 90,

95 (5th Cir. 1992). Allegations of

plaintiff's complaint are taken as true except to the extent that
they are contradicted by defendant's affidavits. Wyatt v. Kaplan,
686 F.2d 276, 282-83 n.13

1

The "Doc.

(5th Cir. 1982). Any genuine, material

"reference is to the number of the item on the docket in this action.
3

conflicts are resolved in favor of plaintiff. Jones v. Petty-Ray
Geophysical Geosource,

Inc., 954 F.2d 1061, 1067 (5th Cir. 1992).

In a diversity action, personal jurisdiction over a
nonresident may be exercised if

(1)

the nonresident defendant is

amenable to service of process under the law of the forum state,
and (2) the exercise of jurisdiction under state law comports
with the due process clause of the Fourteenth Amendment. Wilson,
20 F.3d at 646-47. Since the Texas long-arm statute has been
interpreted as extending to the limits of due process, the only
inquiry is whether the exercise of jurisdiction over the
nonresident defendant would be constitutionally permissible.
Bullion v. Gillespie, 895 F.2d 212, 216

(5th Cir. 1990).

For due process to be satisfied, a nonresident must have
minimum contacts with the forum state resulting from an
affirmative act on the defendant's part and the contacts must be
such that the exercise of jurisdiction over the person of the
defendant does not offend traditional notions of fair play and
substantial justice. International Shoe Co. v. Washington, 326

u.s.

310, 316

(1945).
IV.
Analysis

Here, the record reflects that defendant solicited
plaintiff's business. Defendant clearly understood that plaintiff

4

was a Texas company performing substantial construction work in
Texas, as well as other states, for which it needed commercial
insurance coverage. Plaintiff looked to and relied upon defendant
to provide the necessary coverage. It was defendant's duty to
keep plaintiff fully informed so that it could remain safely
insured at all times. See Cateora v. British Atlantic Assurance,
Ltd., 282 F. Supp. 167, 174 (S.D. Tex. 1968). In that regard,
defendant made numerous calls and sent emails to plaintiff at its
only office, located in Fort Worth, Texas. The lawsuit arises out
of defendant's contacts with the forum. Defendant could, and
should, have reasonably foreseen being haled into court here.
Further, the exercise of jurisdiction over defendant comports
with due process.

v.
Order
The court ORDERS that defendant's motion to dismiss be, and
is hereby, denied.
SIGNED August 4, 2017.

5