business law

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18-20064 Summary Calendar

United States Court of APPeals Fifth Circuit

FILED October 18,2018

Lyle W. Cayce Clerk

E. DRAKE,

Plaintiff - Appellant

v.

MURPHY, AUSTIN, ADAMS, SCHOENFELD; NIELLO PERFORMANCE MOTORS, INCORPORATED; RICHARD SEEBORG; GARLAND E.

BURRELL, JR.; EDWARD J. GARCIA; I,AWRENCE K. KARLTON; JOHN

A. MENDEZ; KIMBERLY J. MUELLER; TROY L. NUNLEY; WILIAM B. SHUBB; LAWRENCE J. O'NEILL; EDMUND F. BRENNAN; ALLISON

CLAIRE; CRAIG M. KELLISON; MICHAEL J. SENG; JENNIFER L.

THURSTON,

Defendants - ApPellees

Appeal from the United States District Court for the Southern District of Texas

USDC No. 4:17-CV-1826

Before SMITH, WIENER, and WILLETT, Circuit Judges.

PER CURIAM:*

* Pursuant to 5TH Cm. R. 47.5, t.ne court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

Cm. R. 47.5.4.

No. 18-20064

Plaintiff-Appellant Eric Drake, proceeding pro se, sued Defendant-

Appellees (1) Murphy, Austin, Adams, Schoenfeld ("Murphy Austin"), a

California law firm, and (2) NieIIo Performance Motors, Inc. ("Niello"), a

California automobile dealership, asserting numerous claims, including fraud

and violations of the federal odometer laws. This is the fourth suit Drake has

filed against Niello relating to the 20L4 sale of a 2003 Mercedes Benz Model C-

32.1 Murphy Austin represented Defendant-Appellee Niello in the previous

lawsuits.

In 2013, Drake saw Niello's Cars.com advertisement for a 2003 Mercedes

Benz Model C-32. He contacted Niello about purchasing the car, but they were

not able to reach an agreement about the terms and conditions of the sale.

When negotiations faltered, Drake sued Niello in the Southern District of

Texas, McAIIen Division. The parties settled, and Drake voluntarily dismissed

that case.

Drake traveled to Sacramento, California to sign the settlement agreement. One of the terms of that agreement was that Niello would sell the

car to Drake. Under the agreement's terms, Niello delivered the car to

Shipping Experts, a California shipping company and a nonparty to this suit,

to ship the car from California to Drake in Texas.

Drake then filed three more lawsuits based on the sale and transportation of the car: one in the Northern District of Texas; another in the

Northern District of California; and the third, the instant case, in the Southern

District of Texas, Houston Division. Drake's primary claim is that the mileage

on the car's odometer differed from the mileage set out in the settlement

1 This court has recently acknowiedged that "Drake has been declared a vexatious litigant in Texas state courts . . . ." Drake u. Castume Armour, /nc., No. L7-2O67t, 2018 WL 4261989, at *1 (5th Cir. Sept. 6,2018)'

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No. 18-20064

agreement. Niello had not appeared, answered, or filed any responsive pleadings in the earlier suits fiIed in Texas.

In the instant case, Murphy Austin and Niello specially appeared and

moved to dismiss for lack of personal jurisdiction, improper venue, and failure

to state a claim. The district court held a hearing at which it considered the

settlement agreement and declarations from NieIIo's general counsel and a

Murphy Austin representative that set out the jurisdictional facts for each

entity. The district court granted the motions to dismiss at the hearing. The

district court then entered an order confirming that it had granted Murphy Austin's and Niello's motions to dismiss for lack of personal jurisdiction, 'oas

explained on the record."

Drake moved for reconsideration, and the district court denied the

motion. On appeal, Drake did not provide a transcript of the hearing at which

the district court dismissed the case for lack of jurisdiction.

We review a district court's dismissal of a complaint for lack of personal

jurisdiction de novo.2 We apply a three-step analysis for our specific personal

jurisdiction inquiry:

(1) whether the defendant has minimum contacts with the forum state, i.e., whether it purposely directed its activities toward the forum state or purposefully availed itself of the privileges of conducting activities there; (2) whether the plaintiffs cause of action arises out of or results from the defendant's forum-related contacts; and (3) whether the exercise of personal jurisdiction is fair and reasonable.s

We have now reviewed in detail the entire record on appeal, including

the parties'hriefs and the record excerpts. We note that Murphy Austin is a

2 Monkton 3 Id. at 433

2006)).

Ins. Serus., Ltd. u. Ritter, 768 F.3d 429, 43L (5th Cir. 2Ol4). (quoting Seiferth u. Helicopteros Atuneros, lnc.,472F.3d266,27L (5th Cir.

No. 18-20064

law firm organized under the laws of California, has no offi.ces in Texas, does

not advertise in Texas, and has no attorney licensed to practice law in Texas.

Similarly, Niello is a California company, has no offices, dealerships, bank

accounts, or a registered agent in Texas, and does not regularly conduct

business in Texas or directly target its advertisements to Texas residents.

Drake signed the settlement agreement in California and agreed to purchase

the car there. Niello's only relevant contact with Texas was its Cars.com

advertisement, which was not specifically directed at Texas.

We agree with the district court that neither Murphy Austin nor Niello

has sufficient minimum contacts with Texas to give rise to specific personal

jurisdiction there. "We have consistently held that 'merely contracting with a

resident of [a] forum state' does not create minimum contacts sufficient to

establish personal jurisdiction over a nonresident defendant."a This is particularly true when, as here, "an out-of-state defendant has no physical

presence in the forurn, conducts no business there, and the contract at issue

'was not signed in the state and did not call for performance in the state."'5

Neither are Defendants' contacts with Texas sufficiently "substantial,

continuous and systematic" to render themooessentially at home" in Texas.6

We conclude that the district court's analysis and conclusions are correct

in all respects and are free of reversible error. We therefore affirm that court's

dismissal of this action.

AFFIRMtrD.

a Blahes u. DynCorp Int'\, L.L.C.,732F. App'x 346,347 (5th Cir. 2018) (quoting I/olI Oil & Gas Corp. u. Haruey,80l F.zd 773,778 (5th Cir' 1986))'

5Id. (quoting Monkton,768 F.3d at 433)' G Sangha u. f,{auig8 ShipManagement Priuate Ltd.,882 F.3d 96, 101-02 (5th Cir' 2018)

(quoting Goid.year Dunlop Tires Operations, S.A. u. Brawn,564 U.S. 915, 919 (2011))'

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