Selinger v. Ruffalo

Filing 21

Memorandum Opinion and Order: The court ORDERS that defendant's motion 20 to dismiss be, and is hereby, granted, and that plaintiff's claims against defendant be, and are hereby, dismissed for want of personal jurisdiction. (Ordered by Judge John McBryde on 8/6/2018) (edm)

U.S. Db 1 R!Cr COURT
NORTHERN DISTRICT OF TEXAS

FILED

IN THE UNITED STATES DISTRI1 T COJRT
NORTHERN DISTRICT OF TI ~AS
AUG
FORT WORTH DIVISION
STEPHEN SELINGER,

§

- 6 2018

§
§

Plaintiff,

CLER!(, U.S. DISTRICT COURT
By
Deputy

§

vs.

§

NO. 4:18-CV-035-A

§

JOSEPH RUFFALO,

§
§

Defendant.

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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, Joseph
Ruffalo, to dismiss. Plaintiff, Stephen Selinger, apparently
having lost interest in pursuing the action, has failed to
respond to the motion, which is ripe for ruling. See Local Civil
Rule 7.l(e). The court, having considered the motion, the record,
and applicable authorities, finds that the motion should be
granted.
I.

Plaintiff's Claims
On January 24, 2018, plaintiff filed his original complaint.
Doc. 1 1. Plaintiff alleges: He resides in Texas and defendant
resides in California. Id. ,

6. Defendant contacted plaintiff by

telephone to request his assistance regarding a trust of which
defendant was a beneficiary. Id. , 5. Defendant asked plaintiff
to find an attorney to represent defendant in litigation against

'The "Doc.

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

.~c-c•_j

the trustee of the trust and to manage the litigation on behalf
of defendant. Defendant agreed to pay plaintiff 20% of the gross
recovery resulting from the litigation. Plaintiff located and
recommended an attorney to represent defendant and negotiated the
~~

fee and terms of employment. Id.

7-8. The attorney prosecuted

the matter to a conclusion, resulting in a $631,472.70 recovery
for defendant. Defendant is obligated to pay plaintiff
$126,294.54, but has refused to do so. Id.

~

10.

Plaintiff sues defendant for breach of contract, quantum
meruit, and fraud.
II.
Grounds of the Motion
Defendant urges four grounds in support of his motion. He
says that the court lacks personal jurisdiction over him; venue
is improper; plaintiff's claims are implausible; and, and service
on defendant was untimely or improper.
III.
Applicable Legal Principles
The burden is on plaintiff to establish the court's
jurisdiction over defendant. Wilson v. Belin, 20 F.3d 644, 648
(5~

Cir. 1994); Stuart v. Spademan, 772 F.2d 1185, 1192

(5~

Cir.

1985) . Personal jurisdiction need not be established by a
preponderance of the evidence at this stage; prima facie evidence

2

is sufficient.
602, 609

Johnston v. Multidata Sys. Int'l Corp., 523 F.3d

(5th Cir. 2008); 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
evidence, such as affidavits. Wyatt v. Kaplan,
83 n.13

686 F.2d 276, 282-

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

resolved in favor of plaintiff. Luv N'care, Ltd. v. Insta-Mix,
Inc., 438 F.3d 465, 469

(5th Cir. 2006); Jones v. Petty-Ray

Geophysical Geosource, Inc., 954 F.2d 1061, 1067 (5t" 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

3

(5~

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);
F.3d 419, 425

Fielding v. Hubert Burda Media, Inc., 415

(5th Cir. 2005). The "minimum contacts" prong of

the due process requirement can be satisfied by a finding of
either "specific" or "general" jurisdiction over the nonresident.
Bullion, 895 F.2d at 216.
For specific jurisdiction to exist, the foreign defendant
must purposefully do some act or consummate some transaction in
the forum state and the cause of action must arise from or be
connected with such act or transaction. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475

(1985). Even if the controversy does

not arise out of or relate to the nonresident's purposeful
contacts with the forum, general jurisdiction may be exercised
when the nonresident defendant's contacts with the forum are
sufficiently continuous and systematic as to support the
reasonable exercise of jurisdiction. Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984); Perkins v
Benguet Consol. Mining Co., 342 U.S. 437

4

(1952). When general

jurisdiction is asserted, the minimum contacts analysis is more
demanding and requires a showing of substantial activities within
the forum state. Jones, 954 F.2d at 1068. As the Supreme Court
has recently explained, the proper consideration when determining
general jurisdiction is whether the defendant's affiliations with
the state are so continuous and systematic as to render it
"essentially at home" in the forum state. 2 Daimler AG v. Bauman,
571 U.S. 117, 138-39 (2014) (quoting Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919

(2011)). For

example, a corporation's place of incorporation and principal
place of business are the places where it is at home and are thus
paradigm bases for jurisdiction. Id. at 137. A corporation is not
"at home" in every state where it engages in a substantial,
continuous, and systematic course of business. Id. at 137-38, 139
n.20. For an individual, the paradigm forum for the exercise of
general jurisdiction is the individual's domicile. Id. at 137.

IV.
Analysis
In light of the Supreme Court's recent cases, plaintiff
simply has not made any preliminary showing of either general or
specific jurisdiction over defendant in Texas. The complaint

2

ln BNSF Ry. Co. v. Tyrrell, the Supreme Court made clear that the Daimler test "applies to all
state-court assertions of general jurisdiction over nonresident defendants; the constraint does not vary
with the type of claim asserted or business enterprise sued." 137 S. Ct. 1549, 1559 (2017).

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itself does not contain any factual allegations to support the
existence of personal jurisdiction over defendant in Texas.
Rather, it appears that the trust at issue is a Wyoming entity. 3
And, the letter from the trust indicates that defendant had been
submitting false rental documentation regarding property in
California to obtain trust payments. Doc. 1, Ex. A. The sole
allegation regarding Texas contacts is that "[a]ll of the work
[plaintiff] performed for [defendant] was performed in Texas,
particularly Tarrant County." Id.

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6. Plaintiff does not allege

that defendant intended or even knew that the work would be
performed here. Plaintiff does not allege that defendant knew
plaintiff resided in Texas or that defendant knowingly called or
emailed plaintiff in Texas. Plaintiff does not allege, and it
does not appear from records of the State Bar of Texas, that the
attorney retained to represent defendant is licensed in Texas.
Nor is there reason to believe that any of his work was performed
here. In sum, all plaintiff has pleaded is that a nonresident
contracted with him and that is not enough to establish minimum
contacts. Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 433
(5th Cir. 2014).

3

Although an address is not reflected on the letter from the trust, attached as Exhibit A to the
complaint, the telephone number listed reflects a Wyoming area code.
6

The court need not address the remaining grounds of the
motion.

v.
Order
The court ORDERS that defendant's motion to dismiss be, and
is hereby, granted, and that plaintiff's claims against defendant
be, and are hereby, dismissed for want of personal jurisdiction.
SIGNED August 6, 2018.

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