Boltex Manufacturing Company, L.P. et al v. Galperti, Inc. et al

Filing 105

ORDER Denying 81 Motion for Reconsideration; Denying 81 Motion for Interlocutory Appeal; Denying as Moot 81 Motion to Stay.(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BOLTEX MANUFACTURING
COMPANY, LP, et al.,

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Plaintiffs,
v.
GALPERTI, INC., et al.,
Defendants.

May 30, 2018
David J. Bradley, Clerk

CIVIL ACTION H-17-1439

ORDER
Pending before the court are defendant Officine Nicola Galperti e Figlio S.p.A.’s (“ONG”)
motions to: (1) reconsider; (2) stay discovery; and, alternatively, (3) certify this order for
interlocutory appeal. Dkt. 81. Plaintiffs Boltex Manufacturing Company, L.P. (“Boltex”) and
Weldbend Corporation (“Weldbend”) (collectively, “Plaintiffs”) responded. Dkt. 97. ONG replied.
Dkt. 98. Having considered the motions, response, reply, and applicable law, the court is of the
opinion that the motions should be DENIED.
I. BACKGROUND
ONG asks the court to reconsider its finding of specific jurisdiction.1 Dkt. 81, Dkt. 75
(denying ONG’s motion to dismiss (Dkt. 19) under Federal Rule of Civil Procedure 12(b)(2)).
Specifically, ONG argues that: (1) its email responses to Texas customers cannot constitute
commercial advertising under the Lanham Act; (2) the Plaintiffs’ evidence did not support a prima
facie case for personal jurisdiction; and (3) the court did not analyze purposeful

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The court also found that the exercise of personal jurisdiction over ONG was not
constitutionally unreasonable. Dkt. 75 at 8–9. “ONG does not move for reconsideration on this
point.” Dkt. 81 at 17 n.5.

availment. Dkt. 81 at 9. ONG also asks the court to stay discovery pending resolution of the instant
motion. Id. Alternatively, ONG asks the court to certify this order for interlocutory appeal if it
denies the instant motion or grants it and still finds that personal jurisdiction exists. Id.
II. ANALYSIS
A.

Motion to reconsider

1. ONG’s email responses
Once again, ONG insists that the court cannot analyze specific jurisdiction without deciding
whether its email responses to Texas customers count as commercial advertising under the Lanham
Act.2 Compare Dkt. 81 at 22–28, with Dkt. 59 at 10. Once again, the court disagrees. See Dkt. 75
at 6. The court will not superimpose the Rule 12(b)(6) standard onto ONG’s Rule 12(b)(2) motion.
Thus, this argument cannot support a grant of the instant motion.
2. Plaintiffs’ evidence
According to ONG, Plaintiffs failed to make a prima facie case for personal jurisdiction
because the latter relied on Andrea Galperti’s deposition. Dkt. 81 at 9–10, 13. Even though ONG
cited to its CEO’s affidavit in its own 12(b)(2) motion, ONG asserts that because “Plaintiffs chose
to depose Mr. Galperti in his individual capacity, [and] not as a corporate representative . . . his
testimony does not bind ONG nor does it represent ONG’s position on a topic.” Id. at 13; see also
Dkt. 60 at 4–5, 9–10. ONG also asserts that Mr. Galperti “spoke only in generalities and
hypotheticals.” Dkt. 81 at 14.

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ONG asserts that a negative answer to that question necessarily negates specific jurisdiction.
Dkt. 81 at 22. ONG asserts that the court “relied upon the possibility that the carbon steel flange
market is small enough and the potential purchasers [sic] limited such that individualized email
responses could constitute ‘commercial advertising.’” Id. According to ONG, “[i]f there was no
possibility that the emails could constitute advertising, then the emails could not give rise to
Plaintiffs’ claims and there would be no ‘connection’ to establish specific jurisdiction.” Id.
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Attacking Mr. Galperti’s capacity does not impact whether Plaintiffs met their burden. Nor
does any divergence between Mr. Galperti’s affidavit and his testimony because the court must
resolve factual differences in the Plaintiffs’ favor. Johnston v. Multidata Sys. Int’l Corp., 523 F.3d
602, 609 (5th Cir. 2008) (“conflicts between the facts contained in the parties’ affidavits must be
resolved in the plaintiff’s favor for purposes of determining whether a prima facie case for personal
jurisdiction exists”) (internal citation omitted; emphasis in original). ONG failed to show that
Plaintiffs presented insufficient evidence to support a prima facie case of specific jurisdiction.
Therefore, this ground cannot support a grant of the instant motion.
3. Purposeful availment
ONG argues that the court analyzed specific jurisdiction without addressing the purposeful
availment prong. Dkt. 81 at 9, 16–22. ONG argues that its email responses cannot count under that
prong because it did not initiate the communications to Texas customers. Id. at 18 (“Responding
to an email RFQ inquiry into whether the flanges can be normalized without ONG initiating the
communication or reaching into the Texas forum does not provide [a] fair warning . . . that the
activity may subject [it] to the jurisdiction of a foreign sovereign.”).
Plaintiffs argue that ONG waived a purposeful availment challenge by only addressing the
nexus prong. Dkt. 97 at 14. Plaintiffs also argue that ONG’s emails count toward purposeful
availment because ONG willingly responded to Texas customers via email, and because those
communications contained the allegedly false representations. Id. at 9. Both parties cite the same
case, Trois v. Apple Tree Auction Center, Inc., 882 F.3d 485, 490 (5th Cir. 2018), to support their
divergent positions. Dkt. 81 at 20–21; Dkt. 97 at 7–10.
Trois provides recent Fifth Circuit analysis on specific jurisdiction. 882 F.3d at 487. In that
case, a Kentucky citizen and middleman contacted a collector, domiciled in Texas, about selling his
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collectibles through an Ohio-based auction company. Id. at 487. After the collector expressed
interest, the middleman arranged two conference calls. Id. at 488. Both times, the company’s
president joined in from Ohio. Id. Based on those conversations, the parties preliminarily agreed
that the company would auction off some of the collector’s items. Id. Then, the collector traveled
to Ohio where the parties executed a contract. Id. The collector alleged that during the conference
calls, the president misrepresented the company’s marketing tools and the auction arrangements. Id.
The collector sued the Ohio company and its president in Texas for breach of contract and fraud. Id.
There, the Fifth Circuit rejected specific jurisdiction as to breach of contract because the
conference calls could not satisfy the purposeful availment prong. Id. at 489. However, it found
purposeful availment and a nexus as to fraud:
This case falls within the fuzzy boundaries of the middle of the
spectrum. Although [the president] did not initiate the conference
call to [the collector] in Texas, [the president] was not a passive
participant on the call. Instead he was the key negotiating party who
made representations regarding his business in a call to Texas. It is
that intentional conduct on the part of [the president] that led to this
litigation. So [the president] is not being haled into Texas court
‘based on [his] random, fortuitous, or attenuated’ contacts . . .
[t]herefore, we hold that [the president], a willing participant on a
conference call who actively engaged in conversation regarding his
business, is more akin to an initiator of a phone call as contrasted to
the recipient of an uninitiated, unsolicited phone call. The defendants
should have reasonably anticipated being haled into Texas court as a
result of reaching out to Texas via phone in order to garner business
and make specific representations.
Id. at 491–93 (internal citation omitted; emphasis added).
Here, the allegations about ONG’s email responses closely resemble the Trois conference
call allegations. Compare id., with Dkt. 54 at 5–7, 16. Like in Trois, although ONG did not initiate
the communications to Texas customers, it was not simply a passive participant, either. See 882 F.3d
at 491–93. Instead, ONG “made representations regarding [its] business in [emails] to Texas. It is
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that intentional conduct on the part of [ONG] that led to this litigation.” See id.; see also Dkt. 75
at 2, 6–8. Accordingly, as for purposeful availment, ONG “should have reasonably anticipated being
haled into [a] Texas [federal] court as a result of reaching out to Texas via [email] in order to garner
business and make specific representations.” See Trois, 882 F.3d at 491–93. Therefore, the court’s
determination as to specific jurisdiction stands and this challenge fails as a basis for granting ONG’s
motion to reconsider.
Because each of ONG’s three grounds fail, so too must its motion. Accordingly, the motion
to reconsider is DENIED.
B.

Motion to stay discovery

ONG asks the court to stay discovery pending resolution of the motion to reconsider. Dkt. 81
at 9. Because the court has resolved the latter, the former is DENIED as MOOT.
C.

Motion to certify for interlocutory appeal

ONG asks the court to certify this order for interlocutory appeal pursuant to
28 U.S.C. § 1292(b) and stay all proceedings as to ONG until the Fifth Circuit resolves that appeal.
Dkt. 81 at 9. Under § 1292(b), the district court can certify an order for interlocutory appeal if it
involves: “(1) a controlling question of law; (2) as to which there is a substantial ground for
difference of opinion; and (3) that an immediate appeal from the order may materially advance the
ultimate termination of the litigation.” 28 U.S.C. § 1292(b). ONG’s briefing as to the second
element fails to provide sufficient grounds to certify this order under § 1292(b). See Dkt. 81 at
30–32. Accordingly, the motion is DENIED.

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III. CONCLUSION
For these reasons, ONG’s motion to: (1) reconsider is DENIED; (2) stay discovery is
DENIED as MOOT; and (3) certify this order for interlocutory appeal is DENIED. Dkt. 81

Signed at Houston, Texas on May 30, 2018.

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Gray H. Miller
United States District Judge

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