Trois v. Apple Tree Auction Center, Inc. et al

Filing 7

ORDER GRANTING IN PART AND DENYING IN PART 2 Defendant's Motion to Dismiss. This case is dismissed without prejudice. Signed by Judge Xavier Rodriguez. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
CHARLES J. TROIS,
Plaintiff,
v.
APPLE TREE AUCTION CENTER, INC. and
SAMUEL SCHNAIDT,
Defendants.

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Civil Action No. SA-16-CV-746-XR

ORDER
On this day came on to be considered Defendants’ Motion to dismiss (docket no. 2).
BACKGROUND
Plaintiff initially filed this case in the 285th Judicial District Court of Bexar County, Texas.
In Plaintiff’s Original Petition he alleges that he was contacted by the Defendants to sell by
auction several of his collectibles, including firearms and antiques.

Plaintiff alleges that

Defendants failed to properly market the auction as promised, failed to require minimum bids
as agreed, and that various items sold for significantly lower than what they should have.
Plaintiff brings causes of action of fraud and breach of contract.
Defendants removed the case to this court alleging diversity jurisdiction. Plaintiff is a
citizen of Texas and the Defendants are citizens of Ohio. Plaintiff seeks more than $1 million in
damages.

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Defendants’ motion to dismiss for lack of personal jurisdiction
Defendants argue that Plaintiff made the initial inquiry into using the Defendants’
auction services, and Defendants required that Plaintiff travel to Ohio with his items so that
they could be inspected. Plaintiff arrived in Ohio on May 9, 2016 and the parties negotiated
and signed a contract in Ohio that same day. Defendants advanced Plaintiff $300,000 on the
net proceeds of the future auction. An auction was held in Ohio on three separate days, June
10, 17 and 18. The net proceeds of the auction were less than $100,000. See Affidavit of
Samuel Schnaidt, President of Apple Tree Auction Center. Apple Tree has sued Charles Trois in
the Court of Common Pleas in Licking County, Ohio to recover the approximate $200,000 of
alleged overpaid advance.
Plaintiff argues that in the Spring of 2016 he was contacted by a person known as
Michael “Tuck” Barrick. Mr. Barick claimed that “he was working with an auction company and
that he wanted to speak … about selling some of my items through the company he was
working with.” 1 Plaintiff further asserts that Mr. Barick later visited him in Texas to discuss
using Apple Tree’s services. Allegedly Mr. Barick represented that he had some form of
agreement with Apple Tree to solicit clients and that he received a percentage of commissions.
Plaintiff also alleges that sometime later he was contacted again two or three times by
telephone by Mr. Barick, but that Mr. Schnaidt was also on the call. During these calls, they
discussed that Plaintiff valued his items at $2 million, that internet advertising and a brochure
would be used for marketing, that the items would be protected from selling below value, and
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Mr. Barrick’s relationship with Apple Tree is in dispute. Plaintiff claims that Mr. Barrick was an agent of Apple
Tree. Apple Tree denies any agency relationship and claims that Mr. Barrick is only paid a “finder’s fee by Apple
Tree consisting of a percentage of the auction commission for any person found and referred by him to Apple Tree
that signs a c contract with Apple Tree to hold an auction.” Docket No. 6-1, Exhibit 5.

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that Plaintiff was living in Texas. Mr. Schnaidt also allegedly represented that he was an expert
in bronze sculptures and that he had someone working with him who was an expert on
firearms. Based upon the verbal representations made by Mr. Schnaidt, Plaintiff alleges that he
prepared an inventory of items, packed the items into a truck and traveled to Ohio. Plaintiff
alleges that he met with Mr. Schnaidt and two experts at the Apple Tree auction center.
Allegedly representations were made by Defendants that the items were valued by Plaintiff
correctly or below market.
Analysis
A federal court “may assert jurisdiction if (1) the state's long-arm statute applies ... and
(2) if due process is satisfied.” Johnston v. Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th Cir.
2008) (quoting Cycles, Ltd. v. W.J. Digby, Inc., 889 F.2d 612, 616 (5th Cir. 1989)). In the state of
Texas, the long-arm statute authorizes the exercise of jurisdiction over a nonresident to the full
extent compatible with federal mandates of due process. Id. (citing Ruston Gas Turbines, Inc. v.
Donaldson Co., 9 F.3d 415, 418 (5th Cir. 1993); Wilson v. Belin, 20 F.3d 644, 647 (5th Cir.
1994)).
Thus, personal jurisdiction is proper if two requirements are fulfilled.

“First, the

nonresident defendant must have ‘purposefully availed himself of the benefits and protections
of the forum state by establishing minimum contacts with that forum state.’” Felch v.
Transportes Lar–Mex SA DE CV, 92 F.3d 320, 323 (5th Cir. 1996) (quoting Wilson, 20 F.3d at
647). In order to establish “minimum contacts,” it is sufficient to show that the defendant has
contacts giving rise to either specific or general jurisdiction. Id. (quoting Wilson, 20 F.3d at 647).
“Specific jurisdiction is appropriate when the nonresident defendant's contacts with the forum
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state arise from, or are directly related to, the cause of action.” Wilson, 20 F.3d at 647 (citing
Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 n. 8 (1984); Bullion v.
Gillespie, 895 F.2d 213, 216 (5th Cir. 1990)). General jurisdiction is proper “even if the ...
contacts with the forum state are not directly related to the cause of action, [as long as] the
defendant's contacts with the forum state are both ‘continuous and systematic.’” Id. (citing
Helicopteros, 466 U.S. at 414 n. 9).
Second, “the exercise of jurisdiction over the nonresident defendant must not ‘offend
traditional notions of fair play and substantial justice.’” Felch, 92 F.3d at 323 (quoting Wilson,
20 F.3d at 647). In making such a determination of “fairness,” courts “consider (1) the burden
upon the nonresident defendant; (2) the interests of the forum state; (3) the plaintiff's interest
in securing relief; (4) the interstate judicial system's interest in obtaining the most efficient
resolution to controversies; and (5) the shared interest of the several States in furthering
fundamental substantive social policies.” Bullion, 895 F.2d at 216 n. 5 (citing Asahi Metal Indus.
Co. v. Superior Court, 480 U.S. 102, 113 (1987)).
“The plaintiff bears the burden of demonstrating facts sufficient to support both
jurisdiction and venue when a nonresident defendant challenges personal jurisdiction under
Federal Rule of Civil Procedure 12(b)(2). When the district court rules on a motion to dismiss
for lack of personal jurisdiction without an evidentiary hearing, the plaintiff may bear his
burden by presenting a prima facie case that personal jurisdiction is proper. In the absence of
an evidentiary hearing, a court should allow a plaintiff to carry this burden based upon setting
forth facts that taken as true would establish venue. The court must accept as true the
uncontroverted allegations in the complaint and resolve in favor of the plaintiff any factual
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conflicts.

But the court is not obligated to credit conclusory allegations, even if

uncontroverted.”

Breathwit Marine Contractors, Ltd. v. Deloach Marine Servs., LLC, 994 F.

Supp. 2d 845, 848 (S.D. Tex. 2014) (internal citations omitted).
General jurisdiction
A defendant's contacts can satisfy the minimum contacts standard by giving rise to
either general or specific jurisdiction. General jurisdiction is proper “even if the ... contacts with
the forum state are not directly related to the cause of action, [as long as] the defendant's
contacts with the forum state are both ‘continuous and systematic.’” Helicopteros, 466 U.S. at
414 n.9. Here, there are no facts to support general jurisdiction against either Defendant.
Neither Defendants’ contacts with the state of Texas have been alleged to have been both
“continuous and systematic.”
Specific jurisdiction
“Specific jurisdiction is appropriate when the nonresident defendant's contacts with the
forum state arise from, or are directly related to, the cause of action.” Wilson, 20 F.3d at 647
(citing Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984); Bullion v.
Gillespie, 895 F.2d 213, 216 (5th Cir. 1990)). Specific jurisdiction is a claim-specific inquiry. “A
plaintiff bringing multiple claims that arise out of different forum contacts of the defendant
must establish specific jurisdiction for each claim.” Dontos v. Vendomation NZ Ltd., 582 Fed.
Appx. 338, 343 (5th Cir. 2014).
In this case Plaintiff does not appear to argue that the contract was formed or agreed
upon in Texas. In fact, it appears uncontested that the contract for the auction of the various

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items was agreed to and signed in Ohio, and was intended to be performed in Ohio.
Accordingly, there is no specific jurisdiction here regarding the breach of contract claim.
Regarding the fraud claims, Plaintiff relies upon cases such as Moncrief Oil Int’l v. OAO
Gazprom, 481 F. 3d 309 (5th Cir. 2007) and others for the proposition that a single act directed
at the forum state can support jurisdiction if the act is substantially related to the suit. See
Docket No. 4 at p.6.2 Plaintiff alleges in his Original Petition that during the call Mr. Schnaidt
allegedly made to Plaintiff’s residence in Texas, Schnaidt represented “that he would put forth
widespread marketing efforts to attract a large number of bidders, that he was experienced in
selling high-end items like those owned by Plaintiff, that bidders would be able to bid remotely
through the internet, and that he would set a minimum bid price of 20% of the high estimated
value to be determined by Plaintiff.” Plaintiff’s Original Petition at ¶7. Plaintiff alleges that he
relied upon these representations in deciding to use Defendants’ services. Plaintiff alleges that
Defendants concealed facts about their auction process, Defendants failed to set minimum
bids, bidders found that they could not bid on items through the internet, the auction was not
properly marketed, and that Plaintiff was harmed because the items sold for significantly less
than what they should have. Plaintiff’s Original Petition at ¶¶ 8-9. Defendants counter that
whatever representations may have been made in the telephone calls to Texas were
superseded by the contract signed in Ohio.
Also in an auction setting, the Fifth Circuit in Renoir v. Hantman's Associates, Inc., 230 F.
App'x 357 (5th Cir. 2007) reviewed whether a defendant’s misrepresentations directed to Texas
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Plaintiff confusingly devotes a great deal of attention to the contacts made by Mr. Barrick and his alleged agency
status to Defendants. The Court cannot, however, locate any statements allegedly attributable to Barrick that
Plaintiff claims were fraudulent. The Court assumes the references to Barrick are for the purpose that Defendants
purposefully directed acts to a Texas resident.

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through telephone and email communications were sufficient to establish personal jurisdiction.
The Court concluded that “focusing on where a defendant allegedly directed a tort incorrectly
emphasizes the relationship among the plaintiff, the forum, and the litigation, rather than
among the defendant, the forum, and the litigation.” Id. at 360. Properly considering all factors
to evaluate whether the defendants purposefully availed themselves of the benefits and
protections of doing business in Texas, the court concluded that no personal jurisdiction
existed. In that case the physical location of the plaintiffs in Texas was irrelevant. The items to
be auctioned were primarily kept in Florida, and then Maryland. The auction was held in
Maryland. Defendants’ “only contact with Texas came about by the fortuity that a collection in
Florida happened to be owned by the appellants in Texas.” Here, of course, the facts are
slightly different. The items were owned by a Texan and kept in Texas, but then transported to
Ohio. Notwithstanding the factual differences, the fact remains the Fifth Circuit concluded that
the alleged misrepresentations directed to Texas residents were insufficient to warrant
personal jurisdiction.
Yet the law in this area is very unsettled. The Fifth Circuit in Moncrief Oil Int'l Inc. v.
OAO Gazprom, 481 F.3d 309 (5th Cir. 2007) stated: “When a nonresident defendant commits a
tort within the state ... that tortious conduct amounts to sufficient minimum contacts with the
state by the defendant to constitutionally permit courts within that state ... to exercise personal
adjudicative jurisdiction ...” Id. at 314 (citing Guidry v. United States Tobacco Co., Inc., 188 F.3d
619, 628 (5th Cir. 1999)). In Moncrief Oil, the Fifth Circuit concluded “even without other
contacts, jurisdiction would exist if Gazprom committed a tort while in the state. Moncrief,
however, failed to state a claim of negligent representation.” Id.
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In this case the Plaintiff has presented a prima facie case that personal jurisdiction is
proper. He has set forth facts that taken as true would establish that Schnaidt, either acting in
his individual capacity or as the President of Apple Tree made certain representations about
what pre-auction marketing would occur and how the auction would be conducted. As stated
above, even though Defendants strongly contest the version of events Plaintiff has alleged, at
this stage the Court must accept as true the uncontroverted allegations in the complaint and
resolve in favor of the Plaintiff any factual conflicts. Specific jurisdiction exists over both
Defendants as to Plaintiff’s fraud claims.
Motion to dismiss based upon Fed. R. Civ. P. 12(b)(3) and 28 U.S.C § 1406(a)
Whether venue is “wrong” or “improper” for purposes of § 1406(a) and Rule 12(b)(3) is
“generally governed by 28 U.S.C. § 1391.” Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist.
of Texas, 134 S. Ct. 568, 577 (2013). Section 1391 provides: “[e]xcept as otherwise provided for
by law ... this section shall govern the venue of all civil actions brought in district courts of the
United States.” 28 U.S.C. § 1391(a). Subsection (b) states:
[a] civil action may be brought in-(1) a judicial district in which any
defendant resides, if all defendants are residents of the State in which the
district is located; (2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of property that
is the subject of the action is situated; or (3) if there is no district in which an
action may otherwise be brought as provided in this section, any judicial district
in which any defendant is subject to the court's personal jurisdiction with respect
to such action.”
28 U.S.C. § 1391(b).
“When venue is challenged, the court must determine whether the case falls within one
of the three categories set out in § 1391(b). If it does, venue is proper; if it does not, venue is

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improper, and the case must be dismissed or transferred under § 1406(a).” Atl. Marine Const.
Co., 134 S. Ct. at 577.
Defendants argue that a substantial part of the events or omissions giving rise to the
claim occurred in Ohio, not Texas.

Plaintiff relies on his claim that Schnaidt made

misrepresentations to him during telephone calls placed to his Texas residence.
In Siragusa v. Arnold, No. 3:12-CV-04497-M, 2013 WL 5462286, at *3 (N.D. Tex. Sept. 16,
2013), the court concluded that alleged misrepresentations and the negotiation of the alleged
contract, which occurred via communications to the Northern District of Texas, made venue
proper and satisfied the “substantial part of the events or omissions giving rise to the claim
occurred” analysis. In this case, the facts differ. The negotiation of the contract was not
concluded until Plaintiff’s items had been inspected in Ohio, accepted, the cash advance agreed
upon, and a contract signed. The written agreement was silent as to details of how marketing
was to be conducted and whether a minimum bid was required. Other than the happenstance
that Plaintiff was in Texas when Schnaidt allegedly called two or three times by phone, this
Court cannot conclude that “a substantial part of the events or omissions giving rise to the
claim occurred” in Texas and accordingly venue here is improper. Dismissal of Plaintiff’s fraud
claims is required for improper venue.
Because of the disposition of the case on the bases stated above, the Court declines to
analyze Defendants’ alternative motion pursuant to 28 U.S.C. § 1404(a).
Conclusion
The Court does not possess personal jurisdiction over Plaintiff’s breach of contract claim
and accordingly this claim is dismissed against both Defendants without prejudice. This Court
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does possess personal jurisdiction against both Defendants regarding Plaintiff’s fraud claims.
Defendants’ motion to dismiss for lack of personal jurisdiction is granted in part and denied in
part (docket no. 2).
Defendants’ motion to dismiss based upon Fed. R. Civ. P. 12(b)(3) and 28 U.S.C § 1406(a)
as to Plaintiff’s fraud claims is granted.
This case is dismissed without prejudice. The Clerk is directed to enter Judgment and to
close this case.
SIGNED this 27th day of November, 2016.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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