99869 Canada Inc, et al. v. Global Security Networks, Inc, et al.

Filing 14

MEMORANDUM OPINION AND ORDER granting in part and dismissing in part 4 MOTION to Dismiss , dismissing without prejudice 10 MOTION to Dismiss 4 MOTION to Dismiss , The Nox Trust terminated (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

99869 CANADA, INC., 3791068
CANADA, INC. ; DAVID BURTNIK;
GEORGE DeWOLF; DRACO CAPITAL,
INC.; ECAL PARTNERS, LTD.;
EOSPHOROS ASSET MANAGEMENT,
INC. ; MARY HANEMAAYER; DARSHAN
KHURANA; ROBERT MENDEL
(Individually and As Assignee of
STANLEY BERAZNIK, EDWARD
PASCAL) ; MATTEO NOVELLI; DIYA
AL-SARRAJ; SEQUOIA AGGRESSIVE
GROWTH FUND, LTD. (Individually,
As Successor to SEQUOIA
DIVERSIFIED GROWTH FUND, LTD.
and As Assignee of RIG III FUND,
LTD.; SEMPER GESTION, SA;
ARAN ASSET MANAGEMENT; ACHIM
GLAUNER; KARL-HEINZ GLAUNER;
and CHRISTIAN GLAUNER) ; ASHWIN
SAIRAM; PETER TAYLOR; and
MARLENE TERSIGNI,
Plaintiffs,

v.
GLOBAL SECURITY NETWORKS, INC.;
THE NOX TRUST; REINER MARIO
LEMME; and METRIC CAPITAL
PARTNERS, LLP,
Defendants.

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November 17, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-2788

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§

MEMORANDUM OPINION AND ORDER

Plaintiffs 99869 Canada,

Inc.;

3791068 Canada,

Inc.;

David

Burtnik; George DeWolf; Draco Capital, Inc.; ECAL Partners, Ltd.;
Eosphoros Asset Management, Inc. ; Mary Hanemaayer; Darshan Khurana;
Robert Mendel

(individually and as assignee of Stanley Beraznik,

Edward Pascal)
Growth

Matteo Novellii Diya Al-Sarraji Sequoia Aggressive

i

Fund,

Ltd.

(individually,

Diversified Growth Fund,
Ltd.i

Semper Gestion,

Ltd.

as

successor

SAi Aran Asset Managementi Achim Glauneri

Taylori and Marlene Tersigni
action

( "GSN"),

against

The

("Lemme"),

Nox

and

Sequoia

and as assignee of Rig III Fund,

Karl-Heinz Glauneri and Christian Glauner)

this

to

i

Ashwin Sairami Peter

(collectively,

"Plaintiffs"), bring

Defendants

Trust

Metric

(or

Global

"the

Capital

Security Networks,

Trust"),

Partners,

Reiner
LLP,

Mario

Inc.
Lemme

(collectively,

"Defendants") asserting claims for fraudulent transfer in violation
of

the

Texas

Uniform

Fraudulent

Business and Commerce Code

§§

Transfer Act

( "TUFTA") ,

Texas

24.005 (a) (1) and 24.005 (a) (2)

Pending before the court is defendant The Nox Trust's Motion
to Dismiss (Docket Entry No. 4).

For the reasons stated below, the

motion will be granted for lack of personal jurisdiction, and this
action will be dismissed without prejudice as to The Nox Trust.
I.

Factual Allegations and Undisputed Facts

Plaintiffs allege that they provided funds to Robert Kubbernus
("Kubbernus") to acquire the controlling interest in SkyPort Global
Communications,
Inc.

Inc. ,

( "TrustComm") .

( "SkyPort")

which would become TrustComm,

Plaintiffs allege that,

despite assurances

that they would receive an interest in SkyPort, Kubbernus acquired
the company on behalf of Balaton Group,
owned exclusively.

On July 23, 2015,
-2-

Inc., an entity which he

Plaintiffs secured a $16.8

million

judgment

against

Kubbernus

upon

findings

of

fraud

and

violations of the Texas Securities Act.
Plaintiffs allege that in December of 2011, while Plaintiffs'
suit

against

agreement

Kubbernus

was

with defendant

pending,

Lemme

for

Kubbernus
Lemme

through a newly created entity, GSN.

to

entered
acquire

into an
TrustComm

In 2013 TrustComm became a

wholly-owned subsidiary of GSN.
GSN is a Delaware corporation wholly owned by The Nox Trust.
The Nox Trust is a Delaware Trust created on January 16,

2012.

Plaintiffs allege that The Nox Trust was created for the purpose of
facilitating the fraudulent transfer of TrustComm stock and that
the Trust knowingly acquired TrustComm through GSN.
II.

Analysis

Citing Federal Rules of Civil Procedure 9(b), 12(b) (2), and
12(b) (6), The Nox Trust moves to dismiss Plaintiffs' claims against
it for lack of personal jurisdiction, failure to state a claim for
which relief

may be

granted,

and

failure

to plead

fraud with

particularity.
A.

Standard of Review

Dismissal for lack of personal jurisdiction is governed by
Federal Rule of Civil Procedure 12 (b) (2).
moves

to

dismiss

for

lack

of

When a foreign defendant

personal

jurisdiction

under

Rule 12 (b) (2), "the plaintiff [s] 'bear[] the burden of establishing
the district court's

jurisdiction over the defendant. '"
-3-

Quick

Technologies, Inc. v. Sage Group PLC, 313 F.3d 338, 343 (5th Cir.
2002),

cert. denied,

Development LLC,

124 S.

Ct.

190 F.3d 333,

66

(2003)

335

(quoting Mink v. AAAA

(5th Cir. 1999)).

"When the

district court rules on a motion to dismiss for lack of personal
jurisdiction 'without an evidentiary hearing, the plaintiff[s] may
bear [their] burden by presenting a prima facie case that personal
jurisdiction is proper.'
644,

648

making

(5th Cir.),

its

Id.

11

(quoting Wilson v. Belin, 20 F. 3d

cert. denied,

determination,

the

115 S.

district

Ct.

322

(1994)).

"In

court may consider the

contents of the record before the court at the time of the motion,
including

'affidavits,

testimony,
discovery.

or
'II

any
Id.

interrogatories,

combination
at

344

of

the

depositions,

recognized

(quoting Thompson v.

Corp., 755 F.2d 1162, 1165 (5th Cir. 1985)).

oral

methods

of

Chrysler Motors

The court must accept

as true the uncontroverted allegations in the plaintiffs' complaint
and must resolve any factual conflicts in favor of the plaintiffs.
Guidry v. United States Tobacco Co., 188 F.3d 619, 625
1999).

However,

allegations,

(5th Cir.

the court is not obligated to credit conclusory

even if uncontroverted.

Potomac Electric Power Co.,

Panda Brandywine Corp.

253 F.3d 865,

869

(5th Cir.

v.

2001).

"Absent any dispute as to the relevant facts, the issue of whether
personal jurisdiction may be exercised over a nonresident defendant
is a question of

law to be determined

by th [e]

Court.

11

Ruston Gas Turbines, Inc. v. Donaldson Co., Inc., 9 F.3d 415, 418
(5th Cir. 1993).
-4-

B.

Applicable Law

"A federal district court sitting in diversity may exercise
personal jurisdiction only to the extent permitted a state court
under applicable state law."
278,

281

(5th Cir.

1997),

Allred v. Moore & Peterson, 117 F.3d

cert.

denied,

118

s. Ct. 691 (1998).

Moreover, a federal court may only exercise personal jurisdiction
over

a

nonresident

defendant

if

the

exercise

of

personal

jurisdiction comports with the Due Process Clause of the Fourteenth
Amendment.

Id.

The court therefore may exercise personal juris-

diction over a nonresident defendant if

"(1)

the forum state's

long-arm statute confers personal jurisdiction over that defendant;
and (2) the exercise of personal jurisdiction comports with the Due
Process Clause of the Fourteenth Amendment."
587 F.3d 753,
(2010).

759

Since

(5th Cir.

the

Texas

2009),

cert. denied,

long-arm

constitutional due process allows,
second step of the inquiry.

McFadin v. Gerber,

statute

131 S.

extends

as

Ct.

68

far

as

the court considers only the

Id.

Due process is satisfied if the "nonresident defendant has
'certain

minimum

contacts

with

[the

forum]

such

that

the

maintenance of suit does not offend "traditional notions of fair
play and substantial justice."'"
F.3d 588, 595
State

of

(5th Cir. 1999)

Washington,

Office

Gardemal v. Westin Hotel Co., 186

(quoting International Shoe Co. v.
of

Unemployment

Placement, 66 S. Ct. 154, 158 (1945))
61 S. Ct.

339, 343

(1940)).

Compensation

(quoting Milliken v. Meyer,

"The 'minimum contacts'
-5-

and

inquiry is

fact

intensive

touchstone

is

and

no

whether

one
the

element

is

defendant's

decisive;
conduct

rather

shows

'reasonably anticipates being haled into court.'u

the

that

McFadin,

it
587

Once plaintiffs satisfy these two requirements,

F.3d at 759.

a

presumption arises that jurisdiction is reasonable, and the burden
of

proof

and

persuasion

shifts

to

the

defendant

opposing

jurisdiction to present "a compelling case that the presence of
some other considerations would render jurisdiction unreasonable."
Burger King Corp. v. Rudzewicz, 105 S. Ct. 2174, 2185 (1985).
C.

Minimum Contacts

"There are two types of 'minimum contacts':

those that give

rise to specific personal jurisdiction and those that give rise to
general personal jurisdiction."
(5th Cir. 2001).

Lewis v. Fresne, 252 F.3d 352, 358

See also Panda Brandywine,

253 F.3d at 867-68

(recognizing that a district court may assert either general or
specific personal jurisdiction over a party) .
argue nor allege
subject to this

facts

Plaintiffs neither

that would show that The Nox Trust

court's general

jurisdiction.

is

The court must

therefore determine whether it has specific jurisdiction over the
Trust.
Specific
substantial,

jurisdiction
continuous,

exists

when

the

defendant

lacks

and systematic contacts with the forum

state but instead has some minimum contacts that establish (1) the
defendant has "purposefully directed [its] activities at residents
-6-

of the forum," and (2) the plaintiffs' alleged injuries "arise out
of or relate" to those activities."
374, 378 (5th Cir. 2010)

Clemens v. McNamee, 615 F.3d

(quoting Burger King, 105 S. Ct. at 2182).

Specific jurisdiction exists where a "defendant purposefully avails
itself of the privilege of conducting activities within the forum
State,

thus invoking the benefits and protections of its laws."

Burger King,
S.

Ct.

105 S.

1228,

Country,

Inc.

(recognizing

Ct.

1239-40
v.

at 2183

(quoting Hanson v.

"purposeful

78

See also Michiana Easy Li vin'

(1958)).

Holten,

Denckla,

168

S.W.3d

availment"

777,
as

the

784

(Tex.

2005)

"touchstone

of

jurisdictional due process") ; Rushmore Investment Advisors, Inc. v.
Frey, 231 S.W.3d 524, 527
contacts,

(5th Cir. 2007)

("To establish minimum

the defendant must have purposefully availed itself of

the privilege of conducting activities inside Texas and enjoyed the
benefits

and

protections

jurisdiction analysis

of

Texas

"'focuses

on

laws.").

the

relationship

defendant, the forum, and the litigation.'"
S. Ct. 1115, 1124 (2014)
104 S. Ct. 1473 (1984)).

The

specific
among

the

Walden v. Fiore, 134

(quoting Keeton v. Hustler Magazine, Inc.,
The Fifth Circuit has stated that

[f]or specific jurisdiction to be properJ Due Process
requires
( 1)
minimum
contacts
by
the
defendant
purposefully directed at the forum state, (2) a nexus
between the defendant's contacts and the plaintiffs'
claims, and (3) that the exercise of jurisdiction over
the defendant be fair and reasonable.
In re Chinese-Manufactured Drywall Products Liability Litigation,
753 F.3d 521,

539-40

(5th Cir.

2014)

(citing ITL International,

Inc. v. Constenla, S.A., 669 F.3d 493, 498 (5th Cir. 2012)).

-?-

"In

sum,

to satisfy Due Process, the defendant's connection with the

forum state must be such that it

'should reasonably anticipate

being haled into court' in the forum state."
Wide Volkswagen Corp.

v.

Woodson,

100 S.

Id.

Ct.

(quoting World-

559,

567

(1980)).

Plaintiffs bear the burden of making out a prima facie case with
respect

to

the

first

two

prongs

of

analysis.

Monkton Insurance Services,

429,

(5th

433

Cir.

2014)

(quoting

the

specific

Ltd. v.
Seiferth

jurisdiction

Ritter,
v.

768 F.3d

Helicopteros

Atuneros, Inc., 472 F.3d 266, 271 (5th Cir. 2006).
Plaintiffs argue that The Nox Trust is subject to the court's
specific jurisdiction because it is the "recipient of a fraudulent
transfer of assets in the State of Texas." 1
theories in support of their argument.

Plaintiffs offer two

First,

they allege that

GSN's tortious conduct can be attributed to the Trust on an "alter
ego" theory. 2

Second, they argue that the Trust's "participation

in the fraudulent transfer

may be established by the fact

that it was created for the purpose of facilitating the transfer." 3
Plaintiffs
through GSN. 4

allege

that

Kubbernus

sold

TrustComm

to

Lemme

Plaintiffs then allege that Lemme organized The Nox

1

0riginal Petition & Request for Disclosures ("Petition"),
Exhibit A to Notice of Removal, Docket Entry No. 1-1, p. 5 ~ 3.
2

Plaintiffs' Response to Motion to Dismiss and Motions for
Leave to Amend and for Jurisdictional Discovery ("Plaintiffs'
Response"), Docket Entry No. 10, p. 6 ~ 21.
~

3

Id. at 7

4

Petition, Docket Entry No. 1-1, p. 8

22.

-8-

~

16.

Trust

"to act as

the

[GSN] . " 5

intermediate owner of

Finally,

Plaintiffs allege that The Nox Trust, "by knowingly acquiring this
asset, purposely directed its business activity at Texas, and thus
[TUFTA] ." 6

caused harm to Plaintiffs in violation of
essentially seek to either attribute the

Plaintiffs

alleged actions of GSN,

as a subsidiary of the Trust, or the alleged purpose of Lemme, as
grantor, to the Trust.
The court first
long

considers Plaintiffs'

"Courts

have

presumed

related

corporations,

such

the
as

"alter ego"

institutional
parent

and

theory.

independence
subsidiary,

of

when

determining if one corporation's contacts with a forum can be the
basis of a related corporation's contacts."

Dickson Marine Inc. v.

Panalpina, Inc., 179 F. 3d 331, 338 (5th Cir. 1999)
Manufacturing Co. v.
"As

a

general

Cudahy Packing Co.,

rule

the

proper

45 S.

(citing Cannon

Ct.

250
of

exercise

(1925)).
personal

jurisdiction over a nonresident corporation may not be based solely
upon the contacts with the forum state of another corporate entity
with which the defendant may be affiliated."
Offshore Technical Services,
2004)

Inc.,

Freudensprung v.

379 F.3d 327,

346

(5th Cir.

(citing Cannon, 45 S. Ct. at 250 (declining to attribute, for

jurisdictional purposes, the presence of a subsidiary in the forum
state to a nonresident parent corporation where the parent and
subsidiary maintained distinct and separate corporate entities)).

~

5

Id.

6

Plaintiffs' Response, Docket Entry No. 10, p. 9

18.

-9-

~

26.

Jurisdictional veil-piercing is limited to situations in which
a parent corporation "exerts such domination and control over its
subsidiary 'that they do not in reality constitute separate and
distinct corporate entities but are one and the same corporation
for purposes of jurisdiction.'"
F.2d 1154, 1159

Hargrave v. Fibreboard Corp., 710
See also

(5th Cir. 1983).

PHC-Minden,

Kimberly-Clark Corp., 235 S.W.3d 163, 173 (Tex. 2007)

L.P. v.

(recognizing

that jurisdictional veil-piercing requires a plaintiff to show that
the parent corporation "exerts such domination and control over its
subsidiary 'that they do not in reality constitute separate and
distinct corporate entities but are one and the same corporation
for purposes of

The Texas

jurisdiction'") .

Supreme Court has

stated that
[t] o "fuse" the parent company and its subsidiary for
jurisdictional purposes, the plaintiffs must prove the
parent controls the internal business operations and
affairs of the subsidiary . . . But the degree of control
the parent exercises must be greater than that normally
associated with common ownership and directorship; the
evidence must show that the two entities cease to be
separate so that the corporate fiction should be
disregarded to prevent fraud or injustice.
BMC Software Belgium, N.V. v. Marchand,
2002)

(citations omitted).

83 S.W.3d 789,

799

(Tex.

The Texas Supreme Court has observed

that the doctrine of jurisdictional veil-piercing is similar to the
alter

ego

concept

in

substantive

liability,

but

that

"jurisdictional veil-piercing and substantive veil-piercing involve
different elements of proof."

PHC-Minden,

235

S. W. 3d at 174.

"'[A] subsidiary corporation will not be regarded as the alter ego
-10-

of its parent merely because of stock ownership, a duplication of
some or all of the directors or officers,

or an exercise of the

control that stock ownership gives to stockholders.'"
(quoting Gentry v. Credit Plan Corp. of Houston,
573

(Tex.

1975)).

Because

under

Texas

law

a

Id. at 175

528 S.W.2d 571,
corporation

is

presumed to be a separate entity from its shareholders, the party
seeking to ascribe one corporation's actions to another bears the
burden of proof.

BMC Software, 83 S.W.3d at 798; Dickson Marine,

179 F.3d at 338.
Plaintiffs mistakenly infer from The Nox Trust's ownership of
GSN that GSN's allegedly fraudulent conduct can be imputed to the
Trust.

But Plaintiffs overlook the essential step of piercing the

corporate veil.

GSN's conduct as a corporation cannot be ascribed

to its shareholder, The Nox Trust, unless GSN is merely an alter
ego, and the burden is on Plaintiffs to establish that fact.
Accepting as true the uncontested allegations in Plaintiffs'
Petition, the court concludes that Plaintiffs have failed to show
that veil-piercing is warranted here.

Plaintiffs have neither

alleged nor made any showing that The Nox Trust and GSN disregarded
corporate formalities,

that the Trust controlled GSN's internal

business operations and affairs,
unusually high degree

of

or that the Trust exercised an

control

over GSN,

i.e. ,

a

degree

of

control greater than that normally associated with common ownership
and not consistent with The Nox Trust's investor status.

-11-

GSN's

alleged conduct therefore provides no basis for the exercise of
specific jurisdiction over the Trust.
The court next considers Plaintiffs'

argument that The Nox

Trust is subject to this court's jurisdiction based on "its own
participation in the fraudulent transfer, which may be established
by the fact that it was created for the purpose of facilitating the
transfer." 7

Plaintiffs cite to a Fifth Circuit case invoking the

"effects" test as a basis for specific personal jurisdiction.

See

Dontos v. Vendomation NZ Ltd., 582 F. App'x 338, 344-45 (5th Cir.
2014)

("a tortious act committed outside the forum state that has

consequences or effects within the forum will establish minimum
contacts if the tortious conduct is purposefully or expressly aimed
at the forum state").
The

plaintiffs

in

Dontos

argued

that

certain

corporate

defendants were subject to specific personal jurisdiction under
TUFTA as subsequent transferees of fraudulently transferred assets.
Id.

at

340-41.

conducted

for

The
the

plaintiffs

purpose

of

alleged

a

trail

of

transfers

defrauding creditors.

The

district court dismissed the case for lack of personal jurisdiction
on the basis that "[the corporate defendant]

could not feasibly

have participated in [the alleged] conduct, as it did not exist at
the time the fraudulent transfer began."

Id. at 345.

district

[d]efendants'

court

participation

7

did
in

the

not

address

fraudulent

the

transfer

as

a

Plaintiffs' Response, Docket Entry No. 10, p. 7
-12-

But "the
alleged

subsequent

~

22.

transferee."

Id.

The Fifth Circuit held that the district court,

by disregarding the plaintiffs'

factual

allegations,

failed to

"'accept as true the uncontroverted allegations in the complaint
and resolve in favor of the plaintiff any factual conflicts.'"

Id.

(citation

the

omitted).

The

Fifth

Circuit

also

held

that

plaintiffs had made a prima facie case for personal jurisdiction on
the basis

that

[corporate
minimum

"The Texas-based franchise

defendants]

contacts

jurisdiction."

to

ultimately
form

the

acquired
basis

of

agreements
[we]re

that

the

sufficient

specific

personal

Id. at 347.

As Plaintiffs note, in Dontos "the Fifth Circuit opinion lumps
the three corporat[e defendants] together." 8
address

the

issue

of attributing one

conduct to another.
plaintiffs'

The opinion does not

entity's

or

individual's

Instead, the court in Dontos referred to the

allegations

against

collectively throughout the opinion.

the

corporate

defendants

And the court attributed the

acquisition of the allegedly fraudulently transferred assets to the
collective defendants for jurisdictional purposes.
Plaintiffs attempt to attribute the fraudulent transfer to the
Trust on the basis that the Trust was formed for "the very purpose"
of

receiving

the

fraudulent

transfer. 9

Plaintiffs

offer

this

conclusory allegation as evidence that the Trust's acquisition of
GSN as

the

transferee of TrustComm was directed at

8

Plaintiffs' Response, Docket Entry No. 10, p. 7

9

Id. at 8

~

26.
-13-

the forum.

~

23.

Assuming,

arguendo,

that

Plaintiffs

are

correct

about

Lemme's

purpose in creating the Trust, his intentions are not attributable
to the Trust or the Trustees without further evidence.
The Nox Trust was formed in January of 2012. 10

The Stock

Purchase Agreement by which GSN purchased TrustComm was
May 14, 2012. 11

dated

At that time Lemme had no control over the Trust. 12

Without further factual allegations, Plaintiffs have provided the
court with no basis for imputing Lemme's alleged purpose to the
Trust or its trustees apart from a bare,
Plaintiffs

cite

grantor's

intent

to

no
can

authority
be

imputed

for
to

conclusory allegation.

the
an

administered by others after its formation.

proposition
irrevocable

that

a

trust

Plaintiffs offer no

other factual basis for the assertion that the Trust's acquisition
of GSN was

for the purpose of acquiring indirect ownership of

TrustComm and thus directed at the forum.
Plaintiffs have neither alleged nor shown that The Nox Trust
engaged in any activity through which it can reasonably be said to
have "'purposefully avail [ed] itself of the privilege of conducting

10

The Nox Trust Agreement, Exhibit B to The Nox Trust's Motion
to Dismiss, Docket Entry No. 4-3, p. 6.
11

FCC Public Notice, Exhibit D to Plaintiffs' Response, Docket
Entry No. 10-4, p. 3.
12

See id. (listing Lemme as grantor and beneficiary only
stating that "[n] either the grantor nor any beneficiary of
trust will be a member of the board or of management of either
or TrustComm") .
See also id. at 6-7 (disclosure dated May
2012, explaining the management of the Trust and of GSN and
proposed management of TrustComm) .
-14-

and
the
GSN
31,
the

activities within the forum State, thus invoking the benefits and
protections of
Accordingly,

its

laws.'"

Burger King,

105 S.

Ct.

at

2183.

the court concludes that Plaintiffs have failed to

make a prima facie showing that The Nox Trust's minimum contacts
with the forum state of Texas are sufficient for this court to
exercise specific personal jurisdiction over the Trust.
D.

Jurisdictional Discovery

Plaintiffs seek jurisdictional discovery to be followed by an
evidentiary hearing.

Plaintiffs allege that "the exact transaction

and the specific roles of the participants and contacts with Texas
can only be known through discovery. " 13

But Plaintiffs have failed

to make a preliminary showing of jurisdiction.

See Fielding v.

Hubert Burda Media, Inc., 415 F.3d 419, 429 (5th Cir. 2005).
have

Plaintiffs

given

the

court

jurisdictional discovery is warranted.

reason

to

believe

Nor
that

"A court is entitled to

deny leave to conduct jurisdictional discovery where the movant
fails to specify what facts it believes discovery would uncover and
how those facts would support personal jurisdiction."
Co.

v.

Bus

& Coach

WL 7333873, at *2

America

Corp.,

No.

(N.D. Tex. Dec. 23, 2014)

Tornado Bus

3:14-CV-3231-M,

2014

(citations omitted).

Plaintiffs have not specified what facts they hope to obtain in
jurisdictional discovery that would support the court's exercise of

13

Plaintiffs' Response, Docket Entry No. 10, p. 4
-15-

~

12.

personal jurisdiction over the Trust.

For that reason, Plaintiffs'

Motion to Amend and for Jurisdictional Discovery

(Docket Entry

No. 10) is DENIED.

III.
For

the

reasons

Conclusions and Order
stated

above,

the

court

concludes

that

Plaintiffs have failed to make a prima facie showing of minimum
contacts necessary to support the exercise of general or specific
personal jurisdiction over the defendants.

The court therefore

concludes that Plaintiffs' claims against The Nox Trust should be
and

are

hereby

jurisdiction.

DISMISSED

without

prejudice

for

lack

of

As a result, The Nox Trust's remaining grounds for

dismissal are moot.

Accordingly, The Nox Trust's Motion to Dismiss

(Docket Entry No. 4) is GRANTED in PART and MOOT in PART.
SIGNED at Houston, Texas, on this 17th day of November, 2016.

SIM LAKE
UNITED STATES DISTRICT JUDGE

-16-