Nexco Pharma Group of Companies v. Kalida. B.V. et al
Filing
18
MEMORANDUM OPINION AND ORDER denying 9 MOTION to Dismiss under FRCP 12(b)(2) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NEXCO PHARMA GROUP OF COMPANIES,
§
§
Plaintiff,
§
§
v.
§
§
KALIDA, B.V., a Belgian
§
Corporationi DR. KENNY
§
DE MEIRLEIR, Individually;
§
CARINE ROSA JEAN DE MEIRLEIR§
MUYLDERMANS, IndividuallYi
§
§
CHRISTOPHER ROELANT,
"IndividuallYi ALEXIS BOGAERT,
§
IndividuallYi FRANK DECONINCK,
§
IndividuallYi JAN CABRI,
§
Individually; GERT VERBESSEM,
§
Individually; PHILIPPE
§
VAN VRECKEM, IndividuallYi MARC §
FREMONT, IndividuallYi DANNY
§
COOMANS, IndividuallYi MONA
§
ELIASSEN, IndividuallYi PROTEA
§
BIOPHARMA, a Belgian Corporation,§
R.E.D. LABORATORIES, a Belgian
§
Corporationi BIORED, a Belgian
§
Corporationi HIMMUNITAS, a
§
Belgian Associationi DANIELLE
§
DE MEIRLEIR, IndividuallYi
§
KATHLEEN DE MEIRLEIR,
§
IndividuallYi and BNP PARIBAS
§
FORTIS, a Belgian Bank,
§
CIVIL ACTION NO. H-13-1723
§
Defendants.
§
MEMORANDUM OPINION AND ORDER
Pending before the court
is Defendant Kenny De Meirleir's
Motion to Dismiss Plaintiff's First Amended Complaint Pursuant to
Federal Rule of Civil
Procedure
jurisdiction (Docket Entry No.9)
12 (b) (2)
for
lack of personal
("Motion to Dismiss").
Nexco
Pharma
Group
of
("Nexco" )
Companies
De Meirleir replied. 2
filed
a
response 1
and
For the reasons stated below, the court will
deny De Meirleir's Motion to Dismiss.
I.
Factual and Procedural Background
Nexco filed suit against a
number of defendants
including
De Meirleir alleging trademark infringement under the Lanham Act 15
u.S.c.
§§
1114,
1125,
trademark dilution,
breach of
unfair competition, counterfeiting, and fraud.
business organization. 3
Belgium.
Nexco
contract,
Nexco is a Texas
De Meirleir is a citizen and resident of
alleges
jurisdiction under 15 U.S.C
that
§
the
court
has
1121 and 28 U.S.C.
§§
subject-matter
1331, 1338(a).
Nexco developed, owns, and distributes Nexavir Stock Solution
Liquid ("Nexavir") 4 used for treatment of acute allergic reactions. 5
Nexco contends that De Meirleir negotiated the agreement between
Nexco
and Himmunitas
that
is
the
subj ect
of
this
lawsuit
and
purchased approximately one thousand vials of Nexavir per month
lPlaintiff's Response to Defendant, Kenny De
Motion to Dismiss ( "Response") , Docket Entry No. 16.
Meirleir's,
2Defendant Kenny De Meirleir's Reply in Support of Motion to
Dismiss Plaintiff's First Amended Complaint Pursuant to 12(b) (2)
("Reply"), Docket Entry No. 17.
30 r iginal Complaint and Application for Temporary Restraining
Order, Temporary Injunction and Permanent Injunction ("Plaintiff's
Complaint"), Docket Entry No. I, p. 2.
4Declaration of Roger Sahni,
Entry No. 16-1, p. 2 ~ 1.
Exhibit A to Response,
5Plaintiff's Complaint, Docket Entry No. I, p. 7
-2-
~
27.
Docket
from Nexco. 6
De Meirleir argues
that
the court does not have
personal jurisdiction over him because Nexco has not established
that De Meirleir had minimum contacts with Texas necessary to give
rise to specific jurisdiction. 7
De Meirleir contends that he has
only been to Texas two times, and "has never executed any contract
with a Texas resident,
nor has he ever provided any products or
services in or into the State of Texas. lIS
Nexco argues that De
Meirleir contacted Nexco in Texas and negotiated a contract through
e-mail
and phone
calls
with Nexco's
representative
in Texas. 9
Nexco also contends that De Meirleir came to Texas to negotiate the
deal himself. 10
II.
Standard of Review
When a foreign defendant moves to dismiss for lack of personal
jurisdiction under Federal Rule of Civil Procedure 12(b) (2),
"the
plaintiff bears the burden of establishing the district court's
jurisdiction over the defendant."
Group PLC,
313 F.3d 338, 343
marks omitted).
Quick Technologies, Inc. v. Sage
(5th Cir. 2002)
(internal quotation
"When the district court rules on a motion to
dismiss for lack of personal jurisdiction without an evidentiary
6Plaintiff's Complaint, Docket Entry No. I, pp. 8-9
7Motion to Dismiss, Docket Entry No.9, p. 2.
sId.
at 4-5
~
8.
9Response, Docket Entry No. 16, p. 6
laId.
at 10
~
26.
-3-
~ 16.
~~
29-30.
hearing,
the plaintiff may bear his burden by presenting a prima
Id.
facie case that personal jurisdiction is proper."
quotation
marks
"In
omitted)
making
its
(internal
determination,
the
district court may consider the contents of the record before the
court
at
the
time
of
the
motion,
including
affidavits,
interrogatories, depositions, oral testimony, or any combination of
the
recognized
methods
of
quotation marks omitted).
facts .
discovery."
Id.
at
344
(internal
"Absent any dispute as to the relevant
whether personal jurisdiction may be exercised over a
nonresident defendant is a question of law."
Ruston Gas Turbines,
Inc. v. Donaldson Co., 9 F.3d 415, 418 (5th Cir. 1993).
For a court to have personal jurisdiction over a nonresident
defendant
(1)
the
state's
long-arm statute must
apply to that
defendant, and (2) the requirements of federal due process must be
satisfied.
Electrosource,
Inc. v. Horizon Battery Technologies,
Ltd., 176F.3d867, 871 (5thCir. 1999).
statute
process,
has
interpreted
to
extend
to
the
limits
of
due
[the court] need only determine whether subjecting [the
nonresident
process
been
"Because Texas' long-arm
defendant]
clause of
to
suit
in
Texas
the 14th Amendment."
would offend
the
due
The exercise of
personal jurisdiction over a nonresident defendant comports with
federal due process guarantees when the nonresident defendant has
established minimum contacts with the forum state and the exercise
of jurisdiction "does not offend traditional notions of fair play
-4 -
and substantial justice."
154, 158 (1945)
A.
Int'l Shoe Co. v. Washington, 66 S. Ct.
(internal quotation marks omitted) .
Minimum Contacts and Specific Jurisdiction
Minimum contacts can give rise to either specific or general
Lewis v.
personal jurisdiction.
Cir.
2001).11
nonresident
Fresne,
252 F.3d 352,
Courts may exercise specific
defendant
if
the
plaintiff
358
(5th
jurisdiction over a
shows
that
(1)
the
nonresident defendant has minimum contacts with the forum state,
i.e., that "it purposely directed its activities toward the forum
state
or
purposefully
availed
conducting activities there,"
itself
and
(2)
of
the
privileges
of
the plaintiff's cause of
action arises out of or results from the nonresident defendant's
contacts with the forum state.
Seiferth v. Helicopteros Atuneros,
Inc., 472 F.3d 266, 271 (5th Cir. 2006)
v. STORMAN ASIA M/V, 310 F.3d 374,
378
plaintiff satisfies these two elements,
(quoting Nuovo Pignone, SpA
(5th Cir. 2002)).
If the
"the burden shifts to the
defendant to defeat jurisdiction by showing that its exercise would
be unfair or unreasonable."
defendant
must
have
Id.
purposely
resident of the forum and,
"For specific jurisdiction, the
directed
his
activities
the litigation must result
at
the
from the
alleged injuries that arise out of or relate to the defendant's
11Because the court concludes that it has specific jurisdiction
over
the
defendant,
the
court
will
not
address
general
jurisdiction.
-5-
activities directed at the forum."
5 F.3d 877,
Rudzewicz,
884
(5th Cir.
1993)
105 S. Ct. 2174,2183
Coats v. Penrod Drilling Corp.,
(citing Burger King
Corp.
v.
"The focus is on the
(1985)).
relationship between the defendant, the forum, and the litigation."
Id.
(citing Burger King, 105 S. Ct. at 2183).
contact may confer jurisdiction./I
Inc., 438 F.3d 465, 470 n.3
B.
"A single purposeful
Luv N' care, Ltd. v. Insta-Mix,
(5th Cir. 2006).
Traditional Notions of Fair Play and Substantial Justice
In order to establish personal jurisdiction over a nonresident
defendant
the
plaintiff
must
also
show
that
the
exercise
of
personal jurisdiction would not offend "traditional notions of fair
play and substantial justice."
Asahi Metal Indus. Co. v. Superior
Court of California, 107 S. Ct. 1026, 1033
the
reasonableness
defendant,
of
the
exercise
of
(1987) .
In evaluating
jurisdiction
over
the
the court should consider several factors:
(1)
the
burden on the defendant,
(2)
the interests of the forum state,
(3) the plaintiff's interest in obtaining relief,
(4) the interest
of the interstate judicial system in obtaining the most efficient
resolution of the controversy, and (5) the interest of the states
in furthering substantive social policies.
III.
A.
Id.
Analysis
Minimum Contacts
Nexco
argues
that
De
Meirleir
purposely
activities towards Plaintiff, a Texas resident./l12
12Response, Docket Entry No. 16, p. 9
-6-
~
25.
"directed
his
Nexco submitted
a Declaration from Roger Sahni, the President and Chief Executive
Officer of Nexco, in which Sahni stated:
3.
I
was
initially contacted at my registered
electronic mail address for my Texas company by
Kenny De Meirleir to inquire about NEXCO's product.
In the course of negotiations, Mr. De Meirleir
communicated with me regularly via electronic mail
at NEXCO's registered business electronic mail
address. Mr. De Meirleir made multiple phone calls
to me at my Houston, Texas number.
Further,
Mr. De Meirleir personally visited Houston, Texas
on multiple occasions for in-person negotiations of
our agreement.
These negotiations were conducted
at the Houstonian Hotel, Club, and Spa, located at
111 North Post Oak Lane, Houston, Texas 77024.13
Nexco also submitted e-mail exchanges between Sahni and De Meirleir
from May of 2005
through January of 2009. 14
In one e-mail De
Meirleir introduced Sahni to De Meirleir's "business development
person,"
Ken Schepmans, 15 and suggested meeting personally with
Sahni in Houston, Texas:
Dear Roger [SahniJ,
Our business development person, Mr Ken Schepmans will
contact you next week.
It would be best that we travel
to you to discuss details. Could you give us a one year
exclusive dealership for Europe with option to extend if
the operation is a success?
Sincerely,
Kenny De Meirleir 16
13Sahni Declaration, Ex. A to Response, Docket Entry No. 16-1,
p. 2.
14E-mail communications, Exhibit A to Response, Docket Entry
No. 16-1, pp. 4-44.
15Id. at 6.
16Id.
-7-
In these e-mails Sahni and De Meirleir discussed details related to
their business venture and details about the payments, deliveries,
and other tasks related to the business after the contract had been
signed. 17
The facts alleged in Plaintiff's Complaint and in the
Declaration of Roger Sahni easily satisfy the plaintiff's burden of
establishing
a
prima
facie
case
of
personal
jurisdiction over
De Meirleir.
B.
Traditional Notions of Fair Play and Substantial Justice
De Meirleir argues that "it would be an immense burden for the
defendant to travel over 5,000 miles from Europe, which is also the
location of all offices, documents, and witnesses,
dispute of which he should not even be a party.
1118
to litigate a
De Meirleir also
contends that "Texas has little interest in this matter"19 and that
there are no social policies that would be furthered by deciding
this
case
Transport
in
Texas. 20
Corp.,
322
In
F.3d
Central
376,
Freight
384-85
Lines
(5th
Cir.
Inc.
v.
APA
2003),
the
defendant argued that because it had limited contacts with the
forum, and the products from their contract were delivered outside
of Texas,
exercising personal
jurisdiction would be unfair and
17Id. at 27.
18Reply, Docket Entry No. 17, p. 6.
19Id.
2°Id. at 6-7.
-8-
unreasonable.
Id. at 385-86.
The Fifth Circuit held that reaching
out to a Texas resident with the goal of establishing a long-term
relationship
with
a
Texas
resident
gave
the
defendant
"fair
warning" that it might be sued in Texas for an alleged breach of
contract or other intentional torts.
Id. at 386.
The court also
held that the plaintiff's breach of contract and intentional tort
claims were
sufficient
to
"satisfy Due
Process
concerns
traditional notions of fair play and substantial justice."
about
Id. at
384-85.
It was not unforeseeable that De Meirleir would be haled into
a Texas court after purposefully availing himself to the forum via
e-mail,
telephone,
business
with
and personal visits as part of a
Nexco
that
included
contract
purchases pursuant to the agreement.
course of
negotiations
and
Texas has an interest in
protecting a Texas resident in a breach of contract and intentional
tort
suit
even
though
outside of the state.
some
of
the
parties'
See id. at 384-86.
dealings
occurred
The court concludes that
exercising personal jurisdiction over De Meirleir does not offend
traditional notions of fair play and substantial justice.
IV.
The
court
Conclusions and Order
concludes
that
De
Merleir
purposefully availed
himself to Texas and had sufficient contacts to establish specific
jurisdiction over him.
did
not
meet
his
The court also concludes that De Meirleir
burden
of
showing
-9-
that
exercising
personal
jurisdiction over him would offend traditional notions of fair play
and substantial justice.
Accordingly, Defendant Kenny De Meirleir's
Motion to Dismiss Plaintiff's First Amended Complaint Pursuant to
Federal
Rule
of
Civil
Procedure
jurisdiction (Docket Entry No.9)
12 (b) (2)
for
lack
of
personal
is DENIED.
SIGNED at Houston, Texas, on this the 25th day of June, 2014.
UNITED STATES DISTRICT JUDGE
-10-
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