Opinion
No. SA-04-CA-0647-RF.
April 6, 2005
ORDER DENYING MOTIONS TO DISMISS FOR LACK OF PERSONAL JURISDICTION
BEFORE THE COURT are the Motions of Defendants Amrinder Dhiman (Docket No. 15); Latini-Hohberger-Dhimantec, Inc. (Docket No. 16); Roger B. Hohberger (Docket No. 17); James J. Lindeman (Docket No. 20); James M. Elsen (Docket No. 22); L Liquidation Corp. f/k/a LMC International, Inc. (Docket No. 45); and Carroll International (Docket No. 46) to Dismiss, along with various responses and replies.
The Court held hearings in this matter on November 10, 2004 and March 9, 2005, after the parties were granted leave to engage in additional discovery related to the Court's personal jurisdiction over several Defendants. Upon due consideration, the Court finds that it enjoys personal jurisdiction over these Defendants and that their Motions to Dismiss (Docket Nos. 16, 17, 20, 22, 45, and 46) should accordingly be DENIED. However, the Court finds Defendant Dhiman's Motion meritorious because he has not been served with process in this cause. Accordingly, the Court will GRANT Defendant Dhiman's motion to dismiss (Docket No. 15).
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Judson Atkinson Candies ("Judson Atkinson") brings suit against Latini-Hohberger Dhimantec ("LHD"); L Liquidation Company, f/k/a LMC International ("LMC"); Carroll International Corporation ("Carroll"); James J. Lindeman; Roger B. Hohberger; James M. Elsen; and Amrinder Dhiman, seeking to collect on a judgment entered against LMC by this Court. Plaintiff also seeks a preliminary injunction against Defendants.Plaintiff initially sued LMC International ("LMC") in this Court under Cause No. SA-02-CA-0177-RF. On January 20, 2004, the Court entered a final judgment against L Liquidation Company f/k/a LMC International in the amount of $2,772,033.00 for actual and additional damages; the sum of $55,369.35 for Plaintiff's reasonable and necessary attorney's fees; pre-judgment interest on Plaintiff's actual damages from July 1, 2000, to January 20, 2004; and post-judgment interest from January 20, 2004, until the judgment is paid in full.
Just prior to trial, LMC discharged its counsel and announced that it would not appear at trial. Plaintiff asserts that by then LMC had already established a system to fraudulently transfer assets for the purpose of avoiding this Court's judgment and the resulting indebtedness to Judson Atkinson. On or about February 14, 2004, LMC made an assignment for the benefit of creditors to Defendant James J. Lindeman ("Lindeman"), who was to serve as Trustee-Assignee and administrator of the assets transferred by LMC. Plaintiff also alleges that Defendants Carroll, Roger B. Hohberger ("Hohberger"), and James M. Elsen ("Elsen") fraudulently transferred the assets of LMC to a new entity, Defendant Latini-Hohberger-Dhimantec ("LHD").
Plf.'s Complaint and Mot for Prelim. Inj., at para. 11.
Id. at para. 12. The assets consisted of an "escrow account" of $75,000 and other funds in the amount of $30,000. Id.
Id. at para. 13.
DISCUSSION
I. Motions to Dismiss for Lack of Personal JurisdictionA. Rule 12(b)(2) Standard
Plaintiff bears the burden of demonstrating that the court enjoys personal jurisdiction over a nonresident defendant who has brought that jurisdiction into question. In resolving a jurisdictional issue, the Court may review pleadings, affidavits, interrogatories, depositions, oral testimony, exhibits, and any part of the record. The requirement of a prima facie case does not require the Court to credit conclusory allegations, even if un-controverted.
Wilson v. Belin, 20 F.3d 644, 648 (5th Cir. 1994), cert. denied, 513 U.S. 930 (1994).
Command-Aire Corp. v. Ontario Mech. Sales Serv., Inc., 963 F.2d 90, 95 (5th Cir. 1992).
Panda Brandywine Corp. v. Potomac Elec. Power, 253 F.3d 865, 868 (5th Cir. 2001).
A defendant is subject to the personal jurisdiction of a federal court sitting in diversity to the same extent that it would be amenable to the jurisdiction of a state court in the same forum. Applying state law, this Court must first determine whether the forum state, Texas, would be able to assert long-arm jurisdiction. The Texas long-arm statute allows courts to exercise personal jurisdiction over nonresidents "doing business" in Texas. A nonresident does business in Texas by committing a tort in Texas. Other acts may also constitute doing business in Texas and the broad language in Section 17.042 permits the long-arm statute to "reach as far as the federal constitutional requirements of due process will allow."
Pedelahore v. Astropark, Inc., 745 F.2d 346, 347 (5th Cir. 1984).
Id.
See TEX. CIV. PRAC. REM. CODE § 17.041 et seq. (Vernon 1997).
Id. § 17.042.
Id. § 17.042; Guardian Royal Exch. v. English China, 815 S.W.2d 223, 226 (Tex. 1991).
This Court may exercise personal jurisdiction over the nonresident Defendants if they purposefully availed themselves of the benefits and protections of Texas by establishing "minimum contacts" with Texas and the exercise of jurisdiction does not offend traditional notions of substantial justice and fair play. This two-part test embodies the controlling due process principle that a defendant must have "fair warning" that a particular activity may subject it to the jurisdiction of a foreign sovereign. In making this determination, all undisputed allegations by the Plaintiff, who seeks to assert personal jurisdiction over Defendants, will be accepted as true and all conflicts between the parties's allegations will be resolved in favor of Plaintiff.
Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 211 (5th Cir. 1999); Holt Oil Gas Corp. v. Harvey, 801 F.2d 773, 777 (5th Cir. 1987).
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985).
Wien Air, 195 F.3d at 211. See also Bullion v. Gillespie, 895 F.2d 213, 216-17 (5th Cir. 1990).
A nonresident defendant's contacts with Texas may give rise to either general or specific jurisdiction. When the nonresident defendant's contacts are systematic and continuous, then the forum's jurisdiction is general. When the defendant's contacts are less substantial, but the claim arises out of the defendant's more limited contacts with the forum, then the forum enjoys specific jurisdiction. When plaintiffs allege that the defendant committed a tort against them, courts have found that even a single act directed at the forum state by the defendant that gives rise to a cause of action can support a finding of minimum contacts. Courts must assess the foreseeable effects of the alleged tort as part of their analysis of the defendant's relevant contacts with the forum, but must find that the defendant specifically directed acts toward the forum to exercise jurisdiction.
Jackson v. FIE Corp., 302 F.3d 515, 530-31 (5th Cir. 2002).
Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984).
Calder v. Jones, 465 U.S. 783, 789 (1984) (Court had personal jurisdiction over journalist who wrote inflammatory article about individual in California because the journalist could have foreseen the effects of writing the article); Wien Air, 195 F.3d at 212.
Wien Air, 195 F.3d at 212.
Id. See also Jobe v. ATR Marketing, Inc., 87 F.3d 751, 753-54 (5th Cir. 1996).
The alter ego doctrine can also subject a foreign corporation to personal jurisdiction in Texas. An alter ego relationship between a parent corporation and its subsidiary may subject a corporation that does not otherwise have minimum contacts with Texas to the jurisdiction of a Texas court. To "fuse" the parent and subsidiary for jurisdictional purposes, the plaintiff must prove that the parent controls the internal business operations and affairs of the subsidiary.
BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 798-99 (Tex. 2002).
Id.; Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1160 (5th Cir. 1983).
Texas courts also apply the "single business enterprise" theory as a basis for asserting personal jurisdiction over nonresident corporate defendants. These courts look at a number of factors to determine whether there is a single business enterprise, including common business names, common employees, common offices, centralized accounting, payment of wages by one corporation to another's employees, services rendered by employees of one corporation on behalf of the other, undocumented transfers of funds between corporations, and unclear allocations of profits and losses between the corporations.
El Puerto de Liverpool v. Servi Mundo Etc., 82 S.W.3d 622, 634 (Tex.App.-Corpus Christi 2002, pet. dism'd w.o.j.).
B. Personal Jurisdiction Over Defendant L Liquidation Company f/k/a LMC International, Inc.
Plaintiff claims that Defendant L Liquidation Company f/k/a LMC International, Inc. ("LMC") had continuous and systematic contacts with Texas sufficient to give rise to general jurisdiction over LMC. Plaintiff submits evidence that LMC sold products over a period of years to at least seven different Texas customers on several different occasions. Plaintiff also points to evidence that LMC purchased services or products from several suppliers located in Texas. Further, LMC employees made numerous trips to Texas in connection with the sale and subsequent repair of LMC equipment purchased by Plaintiff.
Plaintiff argues that these facts constitute a sufficient basis upon which to assert general personal jurisdiction over LMC. Indeed, these and other facts formed the basis for the Court's exercise of personal jurisdiction over LMC in the underlying case, SA-02-CA-177. As a result, the Court may exercise general personal jurisdiction over Defendant LMC and need not reach the question of whether it may assert specific personal jurisdiction over it.
Because this action deals with the same set of core facts and a number of interrelated entities, the Court finds that personal jurisdiction over LMC is appropriate in this case as well. Further, since LMC was already subject to the Court's jurisdiction, there can be no real argument that exercising personal jurisdiction over LMC again in a matter that is directly related to the previous, underlying matter in which LMC was a party would violate due process. As a result, the Court finds that the motion of Defendant L Liquidation Company a/k/a LMC to dismiss (Docket No. 45) should be denied.
C. Personal Jurisdiction Over Defendant LHD
Defendant Latini-Hohberger-Dhimantec ("LHD") also moves to dismiss under Rule 12(b)(2), arguing that there are no facts to support a finding of personal jurisdiction by this Court. (Docket Nos. 16, 24, Ex. A) Specifically, LHD argues that it is not a resident of Texas and has not had contacts with the state that demonstrate that LHD purposefully availed itself of the privilege of conducting business in Texas.
LHD states that Dhiman Industries, Inc. was an Illinois corporation that was incorporated on July 23, 2003, and that it subsequently changed its name to Latini-Hohberger-Dhimantec, referred to herein as LHD. Like LMC, LHD is engaged in the business of producing candy-making equipment and machinery. On October 3, 2003, LHD acquired a portion of the assets of LMC for $405,863.00 in a sale that Defendant Dhiman claimed in affidavit testimony was the result of arms length negotiations. Defendants LHD and Dhiman also initially denied that they assumed the liabilities of LMC in the context of the sale of the now-defunct corporation's assets.
Affidavit of Amrinder Dhiman, para. 7.
LHD later filed an amended motion to dismiss, stating that this contention had been mistaken and that LHD actually assumed one of LMC's liabilities: a mobile phone contract with Nextel. The amended motion also corrected the date on which LHD's purchase of LMC's assets took place, changing it from October 3, 2003 to October 29, 2003.
LHD also asserts that its website — mentioned in Plaintiff's complaint as supporting a finding of jurisdiction over LHD — is merely a passive website and does not constitute a basis for personal jurisdiction. LHD also states that it is not merely a continuation of LMC and does not share commonality of ownership with the now-defunct LMC.
Revell v. Lidov, 317 F.3d 467, 470 (5th Cir. 2002).
Plaintiff responds by asserting that LHD "operates in the shoes of LMC, albeit under a new name, at the same location with the same employees, under the same leadership, selling the same products to the same customers." Plaintiff claims that Defendant Hohberger, Vice President and 10 percent owner of LHD, contrived the sale of LMC's assets to Latini to avoid the judgment against LMC.
The Court notes that there are many similarities between LMC and Defendant LHD. Both businesses appear to operate at the same address and facility. Both also use the same Internet website, which appears not to have undergone revision following the dismantling of LMC. Similarly, there are former LMC employees who hold identical positions at LHD. Plaintiff alleges that LHD is simply a continuation of LMC under a new name in which the company sells the same products to the same customers at the same location while employing the same individuals.
Id. at para. 18.
Further, Plaintiff alleges that the corporate Defendants have been operated as a single business enterprise throughout and changed names recently only to avoid satisfaction of the judgment rendered against LMC in this Court. Plaintiff claims that LHD was operated with the purpose of defrauding Plaintiff and avoiding the $3 million judgment taken against LMC in this Court. Plaintiff further argues that this name-changing is consistent with a pattern of operation for LMC, which allegedly has operated under a number of similar names in the past, including "Latini Machine Company, Inc." and "Latini Products." Further, Plaintiff contends that the name changes and other corporate restructuring are all attempts to avoid enforcement of the judgment taken against it.
On the facts alleged by Plaintiff, the Court finds sufficient grounds upon which to assert personal jurisdiction. Courts in the Fifth Circuit have found that even a single act by the defendant directed toward the forum state that gives rise to a cause of action by the plaintiff can support a finding of minimum contacts. Courts are to examine the foreseeable effects of a tort in determining whether there have been minimum contacts sufficient to support a finding of in personam jurisdiction. Here, Plaintiff charges that those in control of LHD — including co-Defendant Roger Hohberger — should have known that their allegedly fraudulent activities would subject them to jurisdiction in Texas.
Wien Air, 195 F.3d at 212. See also Calder v. Jones, 465 U.S. 783 (1984).
Wien Air, 195 F.3d at 212.
The Court finds that LHD performed several acts directed at Plaintiff in Texas. Primary among this list is the initial formation of the company just before judgment was entered in this Court in the underlying case against LMC. Despite the nominal changes to the company and ownership, LHD appears to have fully taken over LMC's business. Further, the sales agreement between LHD and LMC shows that LHD knew of all pending litigation against LMC, including the underlying litigation in this Court.
Additionally, there appears to be no dispute that LMC and LHD share a common business name, common offices, common employees, and services rendered by employees of one corporation on behalf of the other. These facts can also support a finding of in personam jurisdiction under a "single business enterprise" theory. Based upon this analysis, the Court finds that LHD's Motion to Dismiss (Docket No. 16) should be denied.
El Puerto, 82 S.W.3d at 636-37.
D. Personal Jurisdiction Over Defendant Hohberger
Defendant Roger Hohberger also moves to dismiss under Rule 12(b)(2), arguing that there are no facts to support a finding of personal jurisdiction by this Court. (Docket No. 17) Specifically, Hohberger argues that he is not a resident of Texas and has not had contacts with the state that demonstrate that he purposefully availed itself of the privilege of conducting business in Texas.
Plaintiff claims that Hohberger performed several tortious acts directed toward Plaintiff in Texas. Plaintiff claims that Hohberger, acting in the same capacity with both LMC and LHD, conspired with the other Defendants to create LHD and fraudulently transfer all of LMC's assets to LHD or Defendant Carroll International to avoid Plaintiff's judgment. Further, Plaintiff points out that Hohberger would have personally benefitted, since he is a 10 percent owner of LHD.
Again, the Court finds that the Plaintiff has alleged sufficient facts to defeat Defendant Hohberger's motion to dismiss and will deny the motion.
E. Personal Jurisdiction Over Defendant Lindeman
Initially, Defendant Lindeman moved to dismiss for lack of personal jurisdiction (Docket No. 20), citing Plaintiff's lack of factual allegations related to Lindeman. Subsequently, at the hearing conducted in this matter related to the instant motions to dismiss, the Court heard statements from counsel for all parties that Plaintiff and Defendant Lindeman had reached an agreement and would no longer pursue any claims against one another. As a result, the Court finds that the motion to dismiss is moot and will deny the motion.
F. Personal Jurisdiction Over Defendant Elsen
Defendant James Elsen also moves to dismiss under Rule 12(b)(2), arguing that there are no facts to support a finding of personal jurisdiction by this Court. (Docket No. 22) Specifically, Elsen argues that all of the alleged events took place in Illinois between Illinois residents, all of whom have had no contacts with Texas.
Plaintiff claims that Elsen performed several tortious acts directed toward Plaintiff in Texas. Plaintiff claims that Elsen, acting as an officer, shareholder, and director of LMC, conspired with the other Defendants to create LHD and fraudulently transfer all of LMC's assets to LHD or Defendant Carroll International to avoid Plaintiff's judgment. Further, Plaintiff points out that Elsen is also an officer, director, and shareholder of Defendant Carroll. Plaintiff also states that Elsen would have benefitted from the transfer, since he is part owner of Carroll as well. Plaintiff also alleges that Elsen executed the assignment of LMC's remaining assets to Lindeman, with full knowledge that a significant judgment had been taken against LMC by Plaintiff. Plaintiff also claims that the corporate Defendants were operated as a single business enterprise under Elsen's partial direction and control.
Under the facts as alleged by Plaintiff, the Court finds that it would not be inappropriate to exercise in personam jurisdiction over Defendant Elsen and will deny his motion to dismiss.
G. Personal Jurisdiction Over Defendant Carroll
1. General Personal Jurisdiction Over Defendant Carroll
Finally, Defendant Carroll moves to dismiss under Rule 12(b)(2) and (3), arguing that it has not had minimum contacts with Texas sufficient to support a finding of personal jurisdiction by this Court (Docket No. 46). Specifically, Carroll argues that because none of the events took place in Texas and because it has not had sufficient contacts here, there is no basis for the Court to assert personal jurisdiction. Carroll also argues that this is an improper forum.
Plaintiff alleges that Carroll has also subjected itself to general personal jurisdiction here by exercising complete and total control of LMC, which it characterizes as an alter ego of Carroll. Plaintiff points to evidence that Carroll made all decisions concerning LMC's capital expenditures and acquisitions and states that LMC acknowledged that it was "not an independent corporation." Plaintiff contends that LMC and Carroll shared common offices, common employees, and services rendered by employees of one corporation on behalf of the other. Plaintiff further claims that LMC subjected itself to Texas jurisdiction and that Carroll's conduct establishes the requisite minimum contacts with Texas such that Carroll should have been aware that it would be haled into court here by Plaintiff, who would seek to collect the judgment it obtained here.
Defendant Carroll counters that the Court should not exercise general jurisdiction over it because it does not have any contacts with Texas and certainly none that are systematic and continuous. Carroll submits an affidavit of co-Defendant James Elsen, who avers that Carroll has no land or personal property, offices, employees, or agents in Texas and does not conduct business or maintain any type of presence here. Carroll does not address the alter ego or single business enterprise theories advanced by Plaintiff. However, Carroll does argue that, even if the Court were to find contacts between Carroll and Texas, the exercise of jurisdiction would be improper because it would offend traditional notions of fair play and substantial justice.
Def.'s Mot. (Docket No. 46) at Ex. B.
The Court finds at the outset that it has general jurisdiction over LMC based on LMC's continuous and systematic business contacts with Texas entities. Plaintiff alleges that Carroll's interconnected relationship with LMC confers general jurisdiction over Carroll as well. Plaintiff asserts that LMC is a wholly-owned subsidiary of Carroll, who operated LMC as one of its divisions. Based on the discovery authorized by the Court in November 2004, Plaintiff submits evidence that Carroll exercised a significant degree of control over the internal operations of LMC and treated LMC like another division of its company.
The Court has before it evidence that LMC maintained no bank account of its own and transacted business using Carroll's accounts. Further evidence shows that Carroll made all the relevant decisions about disbursements from the accounts, acting more as the decision-making branch of a single enterprise than a corporate parent relating to a truly separate subsidiary. The Court also has evidence that Carroll made 401k contributions on behalf of LMC employees, provided financing to LMC, and pledged LMC's assets on loans for which Carroll was primarily responsible. Under these circumstances, it appears that Carroll exerted significant domination and control over LMC, to an extent not found in ordinary parent-subsidiary relationships.
Compare El Puerto, 82 S.w.3d at 635; Daimler-Benz Aktiengesellschaft v. Olson, 21 S.W.3d 707, 721 n. 5 (Tex.App.-Austin 2000, pet dism'd w.o.j.).
BMC, 83 S.W.3d at 798; El Puerto, 82 S.W.3d at 634.
Further, the Court finds that LMC and Carroll shared common offices, common employees, and services rendered by employees of one corporation on behalf of the other. The companies also shared common officers and directors, including co-Defendant James Elsen, among others. From the evidence before it, the Court also can conclude that the officers and/or directors of Carroll determined the policies of LMC, down to the minute detail of authorizing specific purchases and transactions.
Further, the Court has evidence that LMC considered itself not an independent corporation, but as a division of Carroll, a position supported by the weight of evidence before the Court. For example, Carroll, which owned LMC completely, sought out and courted potential buyers of LMC in 2002 and 2003 and marketed LMC assets through a brokerage company which was also owned by Carroll. Carroll also used proceeds from the sale of LMC assets to pay Carroll's legal bills and other debt obligations, instructing LMC's controller to enter back-dated journal entries on LMC's books to record a "mortgage payable" and "line of credit" payments.
The conclusion that the corporations were really different manifestations of a single entity is further supported by evidence that Carroll and LMC shared a common accounting system and that there were numerous undocumented transfers of funds between the two corporations. Similarly, there was an unclear allocation of profits and losses between the two entities. On the strength of this evidence, the Court finds that Plaintiff has adequately pled the existence of an alter ego relationship between Carroll and LMC, Carroll controlled the inner business affairs and operations of LMC.
El Puerto, 82 S.W.3d at 636-37; Hargrave, 710 F.2d at 1160; BMC Software, 83 S.W.3d at 799.
The Court also concludes that Texas courts would have general personal jurisdiction over Carroll under a single business enterprise theory as well, since the factors giving rise to the application of the alter ego concept similarly weigh in favor of a determination that Carroll and LMC operated as a single business entity. Plaintiff offers proof that Carroll and LMC share, or at one time shared, common offices and employees and a centralized accounting system. Plaintiff also submits evidence that Carroll paid wages and retirement plan contributions to LMC employees, additional "single business enterprise theory" factors that weigh in favor of a finding of general personal jurisdiction over Carroll.
See El Puerto, 82 S.W.2d at 637; North American Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 120 (Tex.App.-Beaumont 2001, no pet.).
See El Puerto, at 637; Rio Grande Valley Gas Co. v. City of Edinburg, 59 S.W.3d 199, 208-09 (Tex.App.-Corpus Christi 2000, no pet.).
Carroll presents no rebuttal evidence and does not otherwise challenge Plaintiff's arguments about the extent of control it exerted over LMC and the other contentions made by Plaintiff. The Court thus finds that — given the degree of control exercised by Carroll over the internal business operations of LMC — it is appropriate to consider them as a single entity. As a result, the Court finds sufficient contacts to assert general personal jurisdiction over Carroll under either an alter ego or single business enterprise theory, based upon LMC's continuous and systematic business contacts with Texas.
2. Specific Personal Jurisdiction Over Defendant Carroll
Plaintiff also argues in the alternative that the Court enjoys specific jurisdiction over Carroll because Carroll took several allegedly tortious actions that Plaintiff characterizes as being directed at it here in Texas. For example, Plaintiff alleges that Carroll conspired with other Defendants to create a new company, LHD, and to fraudulently transfer all of the assets of LMC to LHD for the purpose of avoiding the Plaintiff's judgment. Plaintiff submits evidence that Carroll arranged and conducted the alleged fraudulent transfers through Defendant Elsen, who is an officer, shareholder, and director of LMC and Carroll. Plaintiff shows that Carroll directly benefitted from the transfers and that LMC has at all relevant times been the wholly-owned subsidiary of Carroll. Plaintiff alleges that LMC transferred or conveyed some of its assets directly to Carroll. Plaintiff also submits evidence that Carroll is owed nearly $12 million by LMC in a loan allegedly orchestrated by Carroll to deprive Plaintiff of its judgment.
Because the Court determines that it may assert general personal jurisdiction over Carroll, it need not address in detail the arguments Plaintiff presents for asserting specific jurisdiction. However, Carroll's allegedly tortious actions in fraudulently transferring or conveying LMC property to itself and other entities associated with it constitute "doing business" in Texas, since Carroll should have known — and Plaintiff argues actually anticipated — that its actions would result in tortious injury to Plaintiff in Texas.
TEX. CIV. PRAC. REM. CODE § 17.042 (committing tort in whole or in part in Texas constitutes "doing business" in state). See also.
Once a plaintiff has established minimum contacts, the burden shifts to the defendant to "make a compelling case" that the assertion of jurisdiction would be unfair. Carroll argues that the Court's exercise of jurisdiction would offend traditional notions of fair play and substantial justice. Carroll contends that, given its complete lack of contacts in Texas and the location of witnesses and evidence in Illinois, it would violate due process to exercise jurisdiction in Texas.
Wien Air, 195 F.3d at 215; Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985).
Plaintiff argues that in a case of fraud committed against a resident of the forum state, an exercise of jurisdiction likely comports with the due process clause, given the obvious interests of the plaintiff and the forum state. Texas has an interest in the litigation because the dispute involves Plaintiff Judson Atkinson, a corporation whose principal place of business is in Texas. Further, Carroll is accused of violating Texas's Uniform Fraudulent Transfer Act, giving the state yet another reason for interest in the litigation. Under these facts, the Court finds that an assertion of jurisdiction over Carroll would indeed comport with due process and would not offend traditional notions of fair play and substantial justice. For this reason, the Court will deny Defendant Carroll's motion to dismiss as well.
Wien Air, 195 F.3d at 215. See also, e.g., D.J. Investments, Inc. v. Metzeler Motorcyle Tire Agent Gregg, Inc., 754 F.2d 542, 548 (5th Cir. 1985).
H. Personal Jurisdiction Over Defendant Dhiman
Defendant Amrinder Dhiman also moves to dismiss under Rules 12(b)(5) and (2), arguing that he has not been served with process and, in the alternative, that the Court lacks in personam jurisdiction over him.
The Court finds that Plaintiff has failed to properly serve Defendant Dhiman and thus, has not perfected service of process upon him. For this reason, the Court should grant Defendant Dhiman's motion to dismiss.
CONCLUSION
For the foregoing reasons, it is ORDERED that the Motions of Defendants Latini-Hohberger-Dhimantec, Inc. (Docket No. 16); Roger B. Hohberger (Docket No. 17); James J. Lindeman (Docket No. 20); James M. Elsen (Docket No. 22); L Liquidation Corp. f/k/a LMC International, Inc. (Docket No. 45); and Carroll International (Docket No. 46) to Dismiss are hereby DENIED.Defendant Dhiman's Motion to Dismiss (Docket No. 15) should be GRANTED, since he has not been properly served with process.