Predator Downhole Inc. and Nancy Vermeulen v. Flotek Industries, Inc. ( 2015 )

ACCEPTED
01-15-00846-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/7/2015 11:36:46 PM
CHRISTOPHER PRINE
CLERK
01-15-00846-CV
CAUSE NO. 06-14-00123-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS FOR HOUSTON, TEXAS
THE FIRST DISTRICT OF TEXAS AT HOUSTON
12/7/2015 11:36:46 PM
CHRISTOPHER A. PRINE
Clerk
PREDATOR DOWNHOLE, INC. and NANCY VERMEULEN,
Appellants
vs.
FLOTEK INDUSTRIES, INC.,
Appellee
APPELLANTS’ INTERLOCUTORY APPEAL OF DENIAL OF
SPECIAL APPEARANCES
ANDREW L. MINTZ, PLLC
Andrew L. Mintz
SBOT No. 24037120
2603 Augusta, Suite 880
Houston, Texas 77057
PHONE: (713) 780-7100
FAX: (713) 780-7111
KIRTON MCCONKIE
Ryan B. Frazier (Pro Hac Vice)
50 E. South Temple, Suite 400
Salt Lake City, Utah 84111
PHONE: (801) 328-3600
FAX: (801) 221-2087
ATTORNEYS FOR APPELLANTS
APPELLANTS REQUEST ORAL ARGUMENT
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IDENTITY OF PARTIES AND COUNSEL
Appellants: Predator Downhole, Inc. and Nancy Vermeulen
Appellants’ Trial and Appellate Counsel
ANDREW L. MINTZ, PLLC
Andrew L. Mintz
SBOT No. 24037120
andrew@almintzlawfirm.com
2603 Augusta, Suite 880
Houston, Texas 77057
PHONE: (713) 780-7100
FAX: (713) 780-7111
KIRTON MCCONKIE
Ryan B. Frazier (Pro Hac Vice)
rfrazier@kmclaw.com
50 E. South Temple, Suite 400
Salt Lake City, Utah 84111
PHONE: (801) 328-3600
FAX: (801) 221-2087
Appellee: Flotek Industries, Inc.
Appellee’s Trial Counsel
BUCK KEENAN LLP
James P. Keenan
Texas Bar No. 11167850
jkeenan@buckkeenan.com
Edward P. Keenan
Texas Bar No. 24075504
tkeenan@buckkeenan.com
700 Louisiana, Suite 5100
Houston, Texas 77002
(713) 225-4500
(713) 225-3719 – Telecopier
ii 4851-2191-0817.v1
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL.......................................................ii
INDEX OF AUTHORITIES ...............................................................................iv
STATEMENT OF THE CASE ............................................................................v
STATEMENT OF JURISDICTION.....................................................................vi
ISSUES PRESENTED ........................................................................................vii
I. SUMMARY OF THE FACTS AND ARGUMENT ………………………….1
II. STATEMENT OF FACTS……………………………………………………3
A. Predator………………………………………………………………...3
B. Nancy Vermeulen……………………………………………………....5
III. ARGUMENT AND AUTHORITIES ………………………………………..5
A. Federal Due Process Requires that Predator and Ms. Vermeulen Have
Minimum Contacts with Texas and that the Exercise of Personal
Jurisdiction Over Predator and Ms. Vermeulen Comport with Fair Play
and Substantial Justice …………………………………………………5
B. Predator Does not Have the Requisite Minimum Contacts with Texas to
Give Rise to Personal Jurisdiction ……………………………………..6
1. Predator Does not have Sufficient Contacts with Texas That Give
Rise to Specific Jurisdiction……………………………………7
a) Breach of Contract…………………………………10
b) Conversion of Trade Secrets and Confidential
Information, Trade Secret Misappropriation, and
Tortious Interference with Appellee’s Current and
Prospective Business Relationships………………..11
iii 4851-2191-0817.v1
c) Civil Conspiracy …………………………………….12
d) Conclusion …………………………………………..14
2. Predator Does Not Have the Continuous and Systematic Contacts
with Texas that Give Rise to General Jurisdiction………………15
C. Ms. Vermeulen Does not Have the Requisite Minimum Contacts with
Texas that Would Subject Her to Personal Jurisdiction in Texas….......19
1. Ms. Vermeulen Does not Have Sufficient Contacts with Texas
That Give Rise to Specific Jurisdiction…………………………20
2. Ms. Vermeulen Does not Have the Continuous and Systematic
Contacts with Texas That Give Rise to General Jurisdiction……21
3. Texas Courts Cannot Exercise Jurisdiction Over Ms. Vermeulen
for Actions Taken in a Representative Capacity ………………..22
IV. Exercising Jurisdiction over Predator Would not Comport with Fair Play
and Justice………………………………………………………………25
V. Conclusion………………………………………………………………27
CERTIFICATE OF COMPLIANCE………………………………….............29
CERTIFICATE OF REVIEW ………………………………………………...29
CERTIFICATE OF FILING AND SERVICE ………………………………..29
iv 4851-2191-0817.v1
INDEX OF AUTHORITIES
Cases
Aluminum Chems. (Bolivia), Inc. v. Bechtel Corp.,
28 S.W.3d 64 (Tex.App.—Texarakana 2000, no pet.)…………………23, 24
Am. Type Culture Collection,Inc. v. Coleman,
83 S.W.3d 801 (Tex. 2002)…………………………………….....7, 9, 19, 20
Amoco Chem. Co. v. Tex. Tin Corp.,
925 F. Supp. 1192, 1201 (S.D. Tex. 1996)…………………………………23
Asahi Metal Indus. Co. v. Superior Court,
480 U.S. 102 (1987)………………………………………………………..25
BMC Software Belgium N.V. v. Marchand,
83 S.W.3d 789 (Tex. 2002)…………………………………………….6, 8, 9
Brown v. Gen. Brick Sales Co., Inc.
39 S.W.3d 291 (Tex.App—Fort Worth 2001, no pet.)………………...22, 23
Burger King Corp. v. Rudzewicz,
471 U.S. 462 (1985)……………………………………………………25, 26
Capital Fin. & Commerce AG v. Sinopec Overseas Oil & Gas, Ltd.,
260 S.W.3d 67 (Tex.App—Houston [1st Dist.], 2008, no pet)…………..6, 12
Cappuccitti v. Gulf Indus. Prods., Inc.,
222 S.W.3d 468 (Tex.App.—Houston [1st Dist.] 2007, no pet.)…………...23
Castleberry v. Branscum,
721 S.W. 270 (Tex. 1986)……………………………………………...23, 24
CSR Ltd. v. Link,
925 S.W.2d 591 Tex. 1996)………………………………………………..10
Frank A. Smith Sales, Inc. v. Atlantic Aero, Inc.,
31 S.W.3d 742 (Tex.App.—Corpus Christi 2000, no pet.)………………...21
v 4851-2191-0817.v1
Grain Dealers Mut. Ins. Co. v. McKee,
943 S.W.2d 455 (Tex. 1997)……………………………………………….23
Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C.,
815 S.W.2d 223 (Tex. 1991)……………………….6, 7, 8, 16, 22, 25, 26, 27
Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408, n. 9 (1984)………………………………………………16, 17
Kelly v. Gen. Interior Constr., Inc.,
301 S.W.3d 653 (Tex. 2010)………………………………...5, 7, 8, 9, 15, 20
Lonza AG v. Blum,
70 S.W.3d 184 (Tex.App—San Antonio 2001, pet. denied)…………..26, 27
MasterGuard L.P. v. Eco Techs. Intern. LLC,
441 S.W.3d 367 (Tex.App—Dallas, 2013, no pet.)………………………..13
McKanna v. Edgar,
388 S.W.2d 927, 930 (Tex. 1965)…………………………………………...9
Michiana Easy Livin’ Country, Inc. v. Holten,
168 S.W.3d 777 (Tex. 2005)…………………………………………...13, 14
Moki Mac River Expeditions v. Drugg,
221 S.W.3d 569 (Tex.2007) ……………………………………………...6, 9
Nat’l Indus. Sand Ass’n v. Gibson,
897 S.W.2d 769 (Tex. 1995)……………………………………...6, 7, 19, 20
Perkins v. Benguet Consolidated Mining Co.,
342 U.S. 437 (1952)………………………………………………………..17
Perna v. Hogan,
162 S.W.3d 648 (Tex.App—Houston [14th Dist.], 2005, no pet.)……........10
PHC-Minden, L.P. v. Kimberly-Clark Corp.,
235 S.W.3d 163 (Tex. 2007)…………………………………………...15, 16
vi 4851-2191-0817.v1
Retamco Operating, Inc. v. Republic Drilling Co.,
278 S.W.3d 333 (Tex. 2009)………………………………………………...9
Rosenberg Bros. & Co. v. Curtis Brown Co.,
260 U.S. 516 (1923)………………………………………………………..16
Schlobohm v. Schapiro,
784 S.W.2d 355 (Tex. 1990) ………………………………………………..6
Shearson Lehman Bros., Inc. v. Hughes, Hubbard & Reed,
902 S.W.2d 60 (Tex.App—Houston [1st Dist.], 1995, no writ)………..10, 11
Siskand v. Villa Found. for Educ., Inc.,
642 S.W.2d 434 (Tex. 1982)……………………………………………….21
Vosko v. Chase Manhatten Bank, N.A.,
909 S.W.2d 95 (Tex.App—Houston [14th Dist.], 1995, pet. denied)...12, 13, 22
Washington DC Party Shuttle, LLC v. IGuide Tours,
406 S.W.3d 723 (Tex. Ct. App.—Houston [14th Dist.] 2013, pet. denied)...23
Weldon-Francke v. Fisher,
237 S.W.3d 789 (Tex.App—Houston [14th Dist] 2007, no pet.)…………..14
Statutes and Rules
Tex. Civ. Prac. Rem.Code § 51.014(7)……………………………………..….ix
T.R.A.P. 9.4(i)(3)……………………………………………………………...29
T.R.A.P. 52.3(j) ……………………………………………………………….29
vii 4851-2191-0817.v1
STATEMENT OF THE CASE
Nature of the Case: On September 2, 2015, the Harris County District Court
entered an Order Denying Predator Downhole, Inc. and
Nancy Vermeulen’s Special Appearances.
Trial Court: The Honorable Randy Wilson, Judge of the 157th District
Court, Harris County, Texas.
Relief sought by The 157th District Court of Harris County issued a ruling
Appellants: denying the Special Appearances of Predator Downhole,
Inc. and Nancy Vermeulen (“Appellants”) despite the
fact that Appellants are not Texas residents and both lack
sufficient minimum contacts with Texas for the trial
court to have personal jurisdiction over Appellants.
Moreover, requiring the Appellants to appear in Texas
for the lawsuit in the district court would not be
consistent with federal due process and notions of justice
and fair play.
viii 4851-2191-0817.v1
STATEMENT OF JURISDICTION
This Court has jurisdiction pursuant to hear this interlocutory appeal
pursuant to Section 51.014(7) of the Texas Civil Practice and Remedies Code.
ix 4851-2191-0817.v1
ISSUES PRESENTED
1) Does Predator Downhole, Inc. (“Predator”) Have the Requisite Minimum
Contacts with Texas to Give Rise to Personal Jurisdiction?
2) Does Predator Have Sufficient Contacts with Texas to Give Rise to Specific
Jurisdiction for any of Flotek’s claims?
3) Does Predator Have the Continuous and Systematic Contacts with Texas
that are Necessary to Give Rise to General Jurisdiction?
4) Does Nancy Vermeulen (“Ms. Vermeulen”) Have the Requisite Minimum
Contacts with Texas that Would Subject Her to Personal Jurisdiction in
Texas?
5) Does Ms. Vermeulen Have Sufficient Contacts with Texas That Give Rise to
Specific Jurisdiction?
6) Does Ms. Vermeulen Have the Continuous and Systematic Contacts with
Texas that are Necessary to Give Rise to General Jurisdiction?
7) Can Texas Courts Exercise Jurisdiction Over Ms. Vermeulen for Actions
Taken in a Representative Capacity?
8) Does Predator Have Sufficient Minimum Contacts with Texas so that
the Exercise of Personal Jurisdiction Over it Fulfills the Federal Due Process
Requirement of Fair Play and Substantial Justice?
9) Does Ms. Vermeulen Have Sufficient Minimum Contacts with Texas so
that the Exercise of Personal Jurisdiction Over it Fulfills the Federal Due
Process Requirement of Fair Play and Substantial Justice?
x 4851-2191-0817.v1
I. SUMMARY OF THE FACTS AND ARGUMENT
Appellee Flotek Industries, Inc.’s (“Flotek” or “Appellee”) claims against
Appellants Predator Downhole, Inc. (“Predator”) and Nancy Vermeulen (“Ms.
Vermeulen”) (collectively “Appellants”) must be dismissed for lack of personal
jurisdiction. The thrust of Flotek’s live pleading, the Fourth Amended Petition and
Application for Permanent Injunction (the “Live Petition”), is to drag Ms.
Vermeulen and Predator – two Wyoming citizens with almost no contact with
Texas – into a Texas court contrary to the deep-seated principles of constitutional
due process. Neither Predator nor Ms. Vermeulen has the minimum contacts
required by due process for Texas to be subjected to personal jurisdiction.
Accordingly, Predator and Ms. Vermeulen should not be forced to defend
themselves in a venue several states away.
Appellants Predator and Ms. Vermeulen each filed separate Special
Appearances challenging the exercise of personal jurisdiction over them. Without
any analysis or explanation, the District Court summarily denied both Special
Appearances. The District Court’s ruling simply explained: “After considering
the pleadings, the response and any other evidence, the Court hereby orders that
these special appearances are DENIED in their entirety.” CR 287. Based on the
evidence before the District Court, this was error.
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Simply, Flotek failed to meet its burden to establish that under the
circumstances of this case, personal jurisdiction exists over these defendants.
Flotek’s contention in opposition to the Special Appearances was based on the
erroneous conclusions that (1) Predator and Ms. Vermeulen conspired with another
defendant, Chris Vermeulen (Ms. Vermeulen’s husband) and (2) Predator was
created for the purpose of facilitating a breach of Chris Vermeulen’s Bonus
Agreement with Flotek. However, these arguments do not withstand scrutiny.
Under established Texas case law, mere allegations of a conspiracy or tortious
interference with contract will not confer personal jurisdiction. Flotek’s only
jurisdictional allegations in the Live Pleading – that Texas has jurisdiction because
the alleged conspiracy makes Ms. Vermeulen and Predator subject to the forum-
selection clause in the Bonus Agreement – fail as a matter of law.
Only proof of actual conduct in furtherance of a conspiracy within Texas
will subject Ms. Vermeulen and Predator to jurisdiction in Texas. Neither Ms.
Vermeulen nor Predator committed a tortious or conspiratorial act in Texas. Flotek
provided no evidence to the contrary. Instead, Flotek claims that invoices with
Integrity – a Texas company – and a handful of emails provide such evidence of
the putative conspiracy or tortious interference. However, Flotek misreads and
misconstrues the content and relevance of these emails and invoices. They do not
show a conspiracy or that Chris Vermeulen had any business involvement in
2 4851-2191-0817.v1
Predator. Flotek’s theories are mere conjecture that is directly contradicted by the
only evidence about these emails and invoices – unrefuted deposition testimony by
those actually involved.
Accordingly, the Court’s ruling denying the Special Appearances should be
reversed, and the defendants respectfully request that the court dismiss Ms.
Vermeulen and Predator from this action for lack of personal jurisdiction.
II. STATEMENT OF FACTS
A. Predator
Flotek’s claims against Predator must be dismissed for want of personal
jurisdiction because the undisputed facts demonstrate that Texas does not have
either specific or general jurisdiction over Appellant. Predator is a small company
that rents, sells, and services downhole drilling motors and related products and
parts. CR 138. It has only six (6) employees, which are all located in and work at
Predator’s facility in Casper, Wyoming. Id. It provides its services and products to
oil drilling companies located in Wyoming, North Dakota, and Colorado. Id. at
139. One of its primary services is to repair oil drilling motors. All of these repairs
occur in Predator’s Casper, Wyoming shop.
Predator does not have the contacts or a relationship with Texas that would
subject it to jurisdiction in Texas. First, Predator has no presence or operations in
Texas. It is a corporation organized and operating under the laws of the State of
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Wyoming with its principal place of business located in Casper, Wyoming. CR
138. In addition, Predator: a) never has had an office or mailing address in Texas;
b) is not licensed to do business in the Texas; c) never conducted any operations in
Texas; d) has no employees in Texas; e) does not send representatives to Texas on
Predator’s behalf; f) does not store product inventory in Texas; g) owns no
property (real or personal) in Texas; h) has no phone listing in Texas; i) provides
virtually all of its sales, rentals and services of motors to customers only in
Wyoming, Colorado, or North Dakota; j) does not ship motors to Texas;
k) directed its communications only to its customers’ agents/representatives
located in Wyoming, Colorado and/or North Dakota; l) does not solicit business in
Texas; m) does not derive any revenues from motors shipped to a Texas address or
serviced any motors or other equipment in Texas; n) has no bank accounts in
Texas; o) has never had any employees and/or representatives who resided in, who
were assigned to, or who worked in Texas; q) has not sent any of its
employees/representatives to Texas for any reason; r) it does not have a registered
agent in Texas; and s) it does not store any business records in Texas. CR 138-141.
Further, Flotek’s Complaint fails to allege facts or claims that would subject
Predator to jurisdiction in Texas. Predator is not a party to the Bonus Agreement
that is the subject of the underlying dispute in this matter. CR 13-19. In addition, it
has not consented to Texas courts exercising jurisdiction over it. In short, these
4 4851-2191-0817.v1
facts demonstrate that, under both Texas and Federal law, Texas does not have
personal jurisdiction over Predator.
B. Nancy Vermeulen
Flotek’s claims against Ms. Vermeuelen must be dismissed for want of
personal jurisdiction because the facts demonstrate that Texas does not have either
specific or general jurisdiction over Ms. Vermeulen. She does not reside in Texas,
owns no property in Texas, does not engage in any personal or business activity on
her own behalf, and (with the exception of a trip she recently made for a mediation
after her Special Appearance was denied) has traveled to Texas only a handful of
times years ago for training offered by and on behalf and for the benefit of her
former employer. CR 104-105. The last time she came to Texas for training
purpose on behalf of her former employer was approximately three years ago. Id.
at 105.
III. ARGUMENT AND AUTHORITIES
A. Federal Due Process Requires that Predator and Ms. Vermeulen Have
Minimum Contacts with Texas and that the Exercise of Personal
Jurisdiction Over Predator and Ms. Vermeulen Comport with Fair Play
and Substantial Justice.
Whether a court can exercise personal jurisdiction over Predator is a question of
law, and thus the trial court's determination of Predator’s special appearance is
reviewed de novo. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 657
5 4851-2191-0817.v1
(Tex. 2010) (citing Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574
(Tex.2007); BMC Software Belgium N.V. v. Marchand, 83 S.W.3d 789, 794)
A Texas court may only exercise personal jurisdiction over a defendant if it
would be consistent with federal constitutional requirements of due process.
Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d
223, 226 (Tex. 1991). Personal jurisdiction is consistent with due process if 1) the
defendant has purposely established “minimum contacts” with Texas; and 2) the
exercise of personal jurisdiction comports with “fair play and substantial justice.”
Nat’l Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 772 (Tex. 1995); Guardian
Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226
(Tex. 1991).
In this case, Flotek has not met its burden of establishing that Vermeulen or
Predator has contacts with Texas sufficient to invoke the jurisdiction of the Texas
courts. See Capital Fin. & Commerce AG v. Sinopec Overseas Oil & Gas, Ltd.,
260 S.W.3d 67, 78-79 (Tex.App. – Houston [1st Dist], 2008, no. pet.) (recognizing
that in “suit against a nonresident defendant, the initial burden is on the plaintiff …
to plead sufficient allegations” to satisfy the jurisdictional requirements).
B. Predator Does not Have the Requisite Minimum Contacts with Texas to
Give Rise to Personal Jurisdiction
The essential goal of the minimum contacts test is to protect the defendant.
Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990). Thus, the defendant’s
6 4851-2191-0817.v1
minimum contacts must constitute a “substantial connection” between the
defendant and Texas. Guardian Royal Exch. Assurance, Ltd. v. English China
Clays, P.L.C., 815 S.W.2d 223, 231 (Tex. 1991). A defendant is not subject to
jurisdiction if his Texas contacts are random, fortuitous or attenuated. Am. Type
Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). To be
subject to personal jurisdiction the defendant must have sufficient minimum
contacts with Texas such that he could reasonably anticipate that his activities
would subject him to the jurisdiction of a Texas court. Nat’l Indus. Sand Ass’n v.
Gibson, 897 S.W.2d 769, 772 (Tex. 1995).
For personal jurisdiction purposes, the minimum contacts requirement can
be satisfied by showing that either specific or general jurisdiction exists. Guardian
Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 227-
228 (Tex. 1991). Specific jurisdiction arises only when: 1) the defendant
“purposefully avails” himself of conducting activities in Texas; and 2) the cause of
action “arises from or is related to those contacts or activities.” Kelly v. Gen.
Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010) (emphasis added). General
jurisdiction arises if the defendant’s contacts with Texas are so “continuous and
systematic” that the defendant can fairly be said to be present in Texas. Guardian
Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 228
7 4851-2191-0817.v1
(Tex. 1991). As the evidence demonstrates conclusively, neither Predator nor Ms.
Vermeulen is subject to either specific or general jurisdiction in Texas.
1. Predator Does not Have Sufficient Contacts with Texas That Give
Rise to Specific Jurisdiction.
Predator has virtually no contacts with Texas. CR 138-141. It does not
solicit any business in Texas, does not maintain any operations in Texas, derives
no revenue from services provided in Texas, and does not maintain a presence in
Texas. Id. At most, Appellant’s contact with Texas is random, and it has not
purposefully availed itself of conducting activities in Texas or of Texas’ laws.
Consequently, there are no minimum contacts that would support a finding of
personal jurisdiction over Predator.
Even if Predator had “purposefully availed” itself of conducting activities
in Texas (and it has not), Appellee must also demonstrate a connection between
Predator’s alleged wrongdoing and Texas. Kelly v. Gen. Interior Constr., Inc., 301
S.W.3d 653, 655 (Tex. 2010). For a court in Texas to have specific jurisdiction,
Predator must have: 1) purposefully availed itself of conducting activities in Texas
and 2) the cause of action against Defendants must arise from or be related to their
contacts with or activities in Texas. Kelly v. Gen. Interior Constr., Inc., 301
S.W.3d 653, 658 (Tex. 2010) (emphasis added). Moreover, Texas law has
established that the plaintiff bears the initial burden to plead sufficient allegations
to bring a nonresident defendant within the reach of Texas's long-arm statute. Id.
8 4851-2191-0817.v1
(citing See Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337
(Tex.2009); Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.
2007); Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807
(Tex.2002); BMC Software Belgium N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex.
2002); McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex.1965)).
If the plaintiff fails to plead facts bringing a defendant within reach of the
long-arm statute (i.e., for a tort claim, that the defendant committed tortious acts in
Texas), the defendant need only prove that it does not live in Texas to negate
jurisdiction. Id. at 658-59. Assuming arguendo that Appellee’s allegations against
Predator in its Live Petition are true (and they are not), Appellee has not pled that
Appellee’s causes of action against Predator occurred in Texas. Furthermore, it is
undisputed that Predator is not located in Texas. CR 138-141. Because Flotek’s
pleadings lack Texas-specific allegations1, Predator has negated all jurisdictional
bases by proving it is not located in Texas, and Flotek has not presented any
evidence to the contrary. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 661
(Tex. 2010) Consequently, Texas lacks personal jurisdiction over Predator. Id.
Even if Predator had committed a tort that impacted a Texas company, i.e.,
Flotek, (and it did not), this fact alone does not give rise to personal jurisdiction
1
Flotek baldly asserts that Texas has jurisdiction because Predator’s contacts with Texas “are directly related to the
causes of action alleged against them in this petition”. CR 293.However, Flotek does not plead any specific facts
that, if proven, would show that Predator’s Texas contacts “are directly related to the causes of action alleged
against them in this petition”.
9 4851-2191-0817.v1
over a non-resident. Perna v. Hogan, 162 S.W.3d 648, 659 (Tex.App—Houston
[14th Dist.], 2005, no pet.) For the trial court to have personal jurisdiction over
Predator, there must be a substantial connection between its contacts with Texas
and the Appellee’s cause of action. Id. Predator’s actions must have been
“purposefully directed” to Texas and Flotek’s litigation against Predator must
result from the alleged injuries that “arise out of or relate to” those actions that
were “purposefully directed” to Texas. Shearson Lehman Bros., Inc. v. Hughes,
Hubbard & Reed, 902 S.W.2d 60, 64-65 (Tex.App—Houston [1st Dist.], 1995, no
writ). “Specific jurisdiction is established if the defendant’s alleged liability arises
from or is related to an activity conducted within the forum.” CSR Ltd. v. Link, 925
S.W.2d 591, 595 (Tex. 1996).
In the instant case, Flotek has established no connection (let alone a
“substantial connection”) between Predator’s activities in Texas and its alleged
liability for the claims brought by Flotek. Thus, Texas cannot properly exercise
specific jurisdiction over Predator.
a) Breach of Contract
It is undisputed that Predator did not sign the Bonus Agreement. It is
axiomatic that a party cannot breach a contract to which it is not a party.
Consequently, Flotek cannot maintain a claim against Predator for Chris
Vermeulen’s alleged breach of the Bonus Agreement. More importantly, none of
10 4851-2191-0817.v1
the provisions of this Bonus Agreement are applicable to Predator. As such, the
forum-selection provision that provides that Texas will be the location for any
legal action brought to enforce the Bonus Agreement cannot be binding on
Predator. CR 18.
b) Conversion of Trade Secrets and Confidential Information,
Trade Secret Misappropriation, and Tortious Interference with
Appellee’s Current and Prospective Business Relationships.
In its response to Predator’s Special Appearance, Flotek focused on
Predator’s relationship with Integrity, asserting that this relationship was sufficient
to confer specific jurisdiction. CR 226-227. It is undisputed that Predator has a
relationship with Integrity, but that fact alone does not provide a basis for specific
jurisdiction. Specific jurisdiction can be predicated on this relationship only if:
1) Appellee’s claims against Predator arose from Predator’s business with Integrity
and 2) if Predator directed its business with Integrity to Texas. See Shearson
Lehman Bros., Inc. v. Hughes, Hubbard & Reed, 902 S.W.2d 60, 64-65
(Tex.App—Houston [1st Dist.], 1995, no writ). Appellee cannot make either
showing.
Flotek has provided no competent evidence that Predator’s relationship with
Integrity gave rise to Appellee’s claims against Predator for Conversion of Trade
Secrets and Confidential Information, Trade Secret Misappropriation, and Tortious
11 4851-2191-0817.v1
Interference with Appellee’s Current and Prospective Business Relationships. The
only “evidence” that Appellee cites for each of these claims is its speculative
assertion that “Predator utilizes Flotek’s proprietary and confidential information,
including Confidential Information as described in the Bonus Agreement to
directly compete with Flotek.” CR 296. Even if this allegation were true (and it is
not), it is nevertheless insufficient to establish specific jurisdiction over Predator
because its alleged conversion of trade secrets and confidential information, trade
secret misappropriation, and tortious interference with Flotek’s current and
prospective business relationships that Predator allegedly used to secure Integrity’s
business would have occurred in Wyoming, not Texas. C.R. 138-141.
c) Civil Conspiracy
Flotek has not shown that conspiracy allegations constitute a basis for
jurisdiction over either Ms. Vermeulen or Predator. “A civil conspiracy is a
combination by two or more persons to accomplish either an unlawful purpose or a
lawful purpose by unlawful means.” Vosko v. Chase Manhattan Bank, N.A., 909
S.W.2d 95, 100 (Tex. App—Houston [14th Dist], 1995, pet. denied).
However, black-letter Texas law is clear that allegations of a nonresident
being involved in a conspiracy does not confer personal jurisdiction on a Texas
court. See Capital Fin. & Commerce AG v. Sinopec Overseas Oil & Gas, Ltd., 260
S.W.3d 67, 78-79 (Tex. App—Houston [1st Dist] 2008, no pet.) (“[B]are
12 4851-2191-0817.v1
allegations of . . . conspiracy, without more, [is] neither material nor relevant in
assessing contacts to determine personal jurisdiction over a nonresident
defendant.”); MasterGuard L.P. v. Eco Techs. Intern. LLC, 441 S.W.3d 367, 376
(Tex. App—Dallas 2013, no pet.) (“A conspiracy claim alone is not enough to
establish personal jurisdiction.”). The Texas Supreme Court has declined “to
recognize the assertion of personal jurisdiction over a nonresident defendant based
solely upon the effects or consequences of an alleged conspiracy with a resident in
the forum state.” Instead, a Texas court can exercise jurisdiction only where the
“nonresident defendant has purposefully established sufficient minimum contacts
to satisfy due process.” Vosko v. Chase Manhattan Bank, N.A., 909 S.W.2d 95,
100 (Tex. App. —Houston [14th Dist] 1995, pet. denied); see also Michiana Easy
Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 789 (Tex. 2005) (“Instead, it is
‘the defendant’s conduct and connection with the forum’ that are critical.”).
Taken alone, Flotek’s allegations that Ms. Vermeulen, Predator, and Chris
Vermeulen acted in concert to set up Predator to compete in violation of the non-
compete provision in the Bonus Agreement are insufficient to subject Predator or
Ms. Vermeulen to personal jurisdiction in Texas.
Appellee has provided no evidence that Predator’s relationship with Integrity
gave rise to the conspiracy claim against Predator. The only “evidence” that
Appellee cites to support this claim is its speculative assertion that Predator was
13 4851-2191-0817.v1
established to “to circumvent the Bonus Agreement, to misappropriate Flotek’s
trade secrets, and to tortiously interfere with Flotek’s current and prospective
customers.” C.R. 298-299. Even if this allegation were true (and it is not), it is still
insufficient to establish specific jurisdiction over Predator because the alleged
conspiracy would have been created and carried out in Wyoming, not Texas. C.R.
138-141. Flotek has not alleged that Vermeulen or Predator committed a
substantial act in furtherance of the conspiracy in Texas, and the trial court did not
make a finding of fact that there was a conspiracy or that any specific act was
taken in Texas in furtherance of the conspiracy alleged by Flotek.
In addition, Appellee cannot use any potential tort liability for the alleged
civil conspiracy as grounds for personal jurisdiction. Under Texas law, ultimate
liability in tort is not a jurisdictional fact, and the merits of Flotek’s claims are not
at issue in determining whether the Court has personal jurisdiction over Predator.
Weldon-Francke v. Fisher, 237 S.W.3d 789, 792 (Tex. App—Houston [14th Dist]
2007, no pet.). In fact, the Texas Supreme Court has expressly rejected jurisdiction
based solely upon the effects or consequences of an alleged conspiracy in the
forum state. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 789
(Tex. 2005). “Instead, it is ‘the defendant’s conduct and connection with the
forum’ that are critical.” Id. In the instant case, Predator’s conduct and connection
14 4851-2191-0817.v1
with Texas fall well short of what is required for Texas to exercise jurisdiction
over Predator on the basis of the alleged civil conspiracy.
d) Conclusion
Appellee has not, and cannot, allege that Predator has any specific contacts
with the State of Texas. As stated previously, for specific jurisdiction to exist,
Appellee must demonstrate that Predator 1) purposefully availed itself of
conducting activities in Texas and 2) the cause of action against Defendant must
arise from or be related to their contacts with or activities in Texas. Kelly v. Gen.
Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010) Not only has Appellee
failed to show that Predator purposefully conducted activities in Texas, it has not
demonstrated that its causes of action against Predator (breach of contract,
conversion of trade secrets and confidential information, trade secret
misappropriation, tortious interference with current and prospective business
relationships, and civil conspiracy) arise out of any contacts Predator has with
Texas. CR 292-308. In short, the evidence shows conclusively that Appellee has
failed to establish specific jurisdiction.
2. Predator Does Not Have the Continuous and Systematic Contacts
with Texas That Give Rise to General Jurisdiction.
General jurisdiction has been defined as “personal jurisdiction over a
defendant in a suit not arising out of or related to the defendant's contacts with the
forum.” PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 166 (Tex.
15 4851-2191-0817.v1
2007) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, n.
9 (1984)). Because Predator has very few contacts with Texas, it clearly does not
have “continuous and systematic” contacts with Texas that would subject it to
general jurisdiction. Guardian Royal Exch. Assurance, Ltd. v. English China
Clays, P.L.C., 815 S.W.2d 223, 228 (Tex. 1991). To assert general jurisdiction
over a defendant, usually the defendant must be engaged in longstanding business
in Texas, such as regularly marketing or shipping products to Texas or maintaining
one or more offices in Texas. PHC-Minden, L.P. v. Kimberly-Clark Corp., 235
S.W.3d 163, 168 (Tex. 2007). Less extensive activities will not qualify for general
jurisdiction. Id.
In Helicopteros, the Supreme Court concluded that a CEO’s trip to Texas
could not be described as a “continuous or systematic” contact.” Id. (citing Id. at
416). Similarly, the Court held that the nonresident defendant’s acceptance of
checks drawn on a Houston bank was of “negligible significance.” Id. “The Court
held, relying on a 1923 unanimous opinion written by Justice Brandeis, that
‘purchases and related trips, standing alone, are not a sufficient basis for a State's
assertion of jurisdiction’.” Id. (citing Id. at 417, 104 S. Ct. 1868 (citing Rosenberg
Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 43 S. Ct. 170, 67 L. Ed. 372
(1923))).
16 4851-2191-0817.v1
As of 2007, there was only one case (Perkins v. Benguet Consolidated
Mining Co.) in which Supreme Court upheld a finding of general jurisdiction. In
that case, the following was true of the nonresident individual: 1) he maintained an
office in the forum state in which he did “many things for the company;” 2) he
maintained the company files in the forum state; 3) carried on correspondence
from the forum state; 4) drew and distributed salary checks from his office in the
forum state; 5) used two bank accounts in the forum state for company funds and
6) had a bank in the forum state act as transfer agent for the company's stock; 7)
held directors' meetings in the forum state; 8) supervised policies dealing with the
rehabilitation of the corporation's properties in the Philippines in the forum state;
and 9) and dispatched funds from bank accounts in the forum state to cover
purchases of machinery for such rehabilitation. Perkins v. Benguet Consolidated
Mining Co., 342 U.S. 437, 447-448, 72 S. Ct. 413, 96 L. Ed. 485 (1952).
In the instant case, Predator’s does not even have as many contacts as the
nonresident defendant in the Helicopteros case, let alone the defendant in the
Benguet Consolidated Mining Co. case. In this case, Predator: 1) is a corporation
organized and operating under the laws of the State of Wyoming; 2) has its
principal place of business located at 1990 Talc Road, Casper, Wyoming, 82604;
3) has an office only in Wyoming and maintains a mailing address in Vernal, Utah.
4) it does not have and never has had an office in Texas; 5) does not currently
17 4851-2191-0817.v1
have, and never has had, a mailing address in Texas; 6) has not been licensed to
conduct business in Texas; 7) does not maintain, and it has not maintained, any
operations in Texas; 8) at no time has had any employees or representatives who
resided in, were assigned to, or worked in Texas; 9) has not had any of its
employees or representatives travel to Texas on Predator’s behalf or on company
business; 10) does not have and has not had a registered agent in Texas; 11) does
not have and has not had any inventory stored in Texas; 12) does not have and has
not had any phone listings in Texas; 13) does not currently own and has not owned
any property, real or personal, in Texas; 14) sales, rentals, and services of motors
have been provided to customers only in Wyoming, Colorado, or North Dakota;
15) has not solicited business in Texas; 16) does not currently receive and has not
received revenues for motors shipped to a Texas address or serviced any motors or
other equipment in Texas; 17) business records, corporate records, and other
records are not and have not been stored in Texas; 18) business records, corporate
records, and records relating to the marketing and development of its products are
located in Casper, Wyoming; 19) does not have and has not had any bank accounts
in Texas; 20) was not personally served with process within Texas; 21) received a
document from the Texas Secretary of State stating that the Texas Secretary of
State had been served in this lawsuit on behalf of Predator; and 22) has not agreed
to subject itself to the jurisdiction of the courts of the State of Texas. C.R. 268-271
18 4851-2191-0817.v1
These facts make it clear that Predator does not have “continuous or
systematic” contacts with Texas. In addition, Predator has not had sufficient
minimum contacts with Texas such that it could reasonably anticipate being
subject to the jurisdiction of a Texas court. Nat’l Indus. Sand Ass’n v. Gibson, 897
S.W.2d 769, 772 (Tex. 1995). This case is significant because: a) the facts in that
case are similar to the facts in the instant case2 and b) the Court ruled that there
was insufficient evidence to establish general jurisdiction. Id. at 774. Similarly,
there is insufficient evidence to establish general jurisdiction in the instant case.
Consequently, Predator is not subject to either specific or general personal
jurisdiction.
C. Ms. Vermeulen Does not Have the Requisite Minimum Contacts with
Texas that Would Subject Her to Personal Jurisdiction in Texas.
As stated previously, a nonresident defendant is not subject to jurisdiction if
her Texas contacts are random, fortuitous, or attenuated. Am. Type Culture
Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). To be subject to
2
The nonresident defendant presented undisputed evidence that it:
1. Is not and never has been a resident of Texas;
2. Is not required to maintain and has never maintained a registered agent for service in Texas;
3. Does not maintain, and has never maintained a place of business in Texas;
4. Does not have, and has never had any employees or agents in Texas;
5. Has never maintained an office, mailing address, or telephone number in Texas;
6. Has never owned any assets in Texas;
7. Has never paid any taxes in Texas;
8. Has never maintained a bank account in Texas;
9. Has never owned, leased, rented, or controlled any real or personal property in Texas;
10. Has never purchased any tangible items or other personal property in Texas or from a Texas business,
citizen, or resident;
11. Has never entered into a contract with any Texas business, citizen, or resident; and
12. Has never held a Board of Directors, officers, or other official meeting in Texas. (Nat’l Indus. Sand
Ass’n v. Gibson, 897 S.W.2d 769, 772 (Tex. 1995)).
19 4851-2191-0817.v1
personal jurisdiction the defendant must have sufficient minimum contacts with
Texas such that she could reasonably anticipate that her activities would subject
her to the jurisdiction of a Texas court. Nat’l Indus. Sand Ass’n v. Gibson, 897
S.W.2d 769, 772 (Tex. 1995). In the instant case, Ms. Vermeulen’s contacts fall far
short of what is required for the district court to exercise personal jurisdiction.
1. Ms. Vermeulen Does not Have Sufficient Contacts with Texas
That Give Rise to Specific Jurisdiction.
Ms. Vermeulen, like Predator, is not subject to specific jurisdiction in this
case. She has not engaged in any actions or activities in Texas that give rise to the
claims asserted against her. See Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d
653, 658 (Tex. 2010) (holding that specific jurisdiction over the claim against
Defendants must arise from or be related to their contacts with or activities in
Texas).
Ms. Vermeulen is not a party to the Bonus Agreement, the contract that is at
issue in the underlying litigation, and she has only been in Texas a handful of
times. CR 105. Furthermore, these prior visits to Texas were for training purposes
on behalf of a former employer and had nothing to do with any of the claims or
allegations that have been brought by Flotek. Id. Consequently, these prior visits fit
squarely within the framework of random, fortuitous or attenuated visits that do not
subject her to Texas jurisdiction. Am. Type Culture Collection, Inc. v. Coleman, 83
S.W.3d 801, 806 (Tex. 2002).
20 4851-2191-0817.v1
Further, she has not taken any actions in furtherance of the alleged tortious
interference or the putative conspiracy in Texas. Ms. Vermeulen has never traveled
to Texas on behalf of her current employer, Predator. In fact, she has not set foot in
Texas for nearly three (3) years, and she has never agreed to subject herself to the
jurisdiction of this Court or any other court located in Texas. CR 104-105
Accordingly, Ms. Vermeulen has not purposefully availed herself of Texas or
Texas laws. As such, there are no minimum contacts that would support a finding
of specific personal jurisdiction over her.
In fact, the Live Pleading fails to adequately plead any actions that Ms.
Vermeulen has taken in Texas giving rise to any of the claims at issue. To meet its
burden of pleading a sufficient basis for personal jurisdiction, Flotek must allege
that Ms. Vermeulen committed a specific act in Texas. See Siskind v. Villa Found.
for Educ., Inc., 642 S.W.2d 434, 437 (Tex. 1982) (finding no personal jurisdiction
over nonresident defendants because there were no allegations of specific acts in
Texas). Thus, Flotek‘s petition falls well short of pleading sufficient allegations to
show jurisdiction in Texas. Frank A. Smith Sales, Inc. v. Atlantic Aero, Inc., 31
S.W.3d 742, 747 (Tex. App. – Corpus Christi 2000, no pet.).
2. Ms. Vermeulen Does Not Have the Continuous and Systematic
Contacts with Texas That Give Rise to General Jurisdiction.
Ms. Vermeulen, a Wyoming citizen, has virtually no contacts with Texas,
much less “continuous and systematic” contacts that would give rise to jurisdiction
21 4851-2191-0817.v1
over her. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C.,
815 S.W.2d 223, 228 (Tex. 1991). She does not own or rent real property in
Texas. She does not own or operate any business in Texas. She does not engage
in any personal or business activities in Texas. She does not have a mailing
address in Texas or phone listings in Texas. She owns no assets in Texas. All
told, she does not have the type and nature of contacts that would give rise to
general personal jurisdiction over her in Texas. CR 104-106.
3. Texas Courts Cannot Exercise Jurisdiction Over Ms. Vermeulen
for Actions Taken in a Representative Capacity.
Flotek argued to the trial court that Ms. Vermeulen had “continuous and
systematic contacts with Texas companies that helped Predator improperly
compete with Flotek.” CR 229. As shown above, the Texas courts do not have
personal jurisdiction over Predator. Even if they did, Ms. Vermeulen’s limited
contacts with Texas taken in a representative capacity do not subject her personally
to jurisdiction in Texas. “[J]urisdiction over an individual generally cannot be
based on jurisdiction over a corporation with which he is associated unless the
corporation is the alter ego of the individual.” Vosko v. Chase Manhattan Bank,
N.A., 909 S.W.2d 95, 99 (Tex. App—Houston [14th Dist] 1995, writ denied). In
addition, the fiduciary shield doctrine provides that corporate officers are not
subject to jurisdiction in a foreign forum where their actions are taken in a
representative capacity. Brown v. Gen. Brick Sales Co., Inc., 39 S.W.3d 291, 297–
22 4851-2191-0817.v1
98 (Tex.App.—Fort Worth 2001, no pet.) (citing Amoco Chem. Co. v. Tex. Tin
Corp., 925 F. Supp. 1192, 1201 (S.D. Tex. 1996)).
Flotek has not shown that Ms. Vermeulen had any contacts with Texas other
than as a representative of Predator or her former employer. Instead, Flotek argued
to the District Court that Ms. Vemeulen was Predator’s alter ego.3 “Alter ego is a
basis for disregarding the corporate fiction ‘where a corporation is organized and
operated as a mere tool or business conduit of another corporation.’” Aluminum
Chems. Bolivia ,Inc. v. Bechtel Corp., 28 S.W.3d 64, 67 (Tex. App. – Texarkana
2000, no pet.) (quoting Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex.
1986)). However, “[u]nder Texas law, a corporation is presumed to be a separate
entity from its officers and shareholders.” Washington DC Party Shuttle, LLC v.
IGuide Tours, 406 S.W.3d 723, 938 (Tex. Ct. App. – Houston [14th Dist.] 2013,
pet. denied); see also Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458
(Tex. 1997). “As a result, a plaintiff who relies on the existence of an alter-ego
relationship to ascribe one defendant’s contacts with Texas to a nonresident must
prove such a relationship exists.” Washington DC Party Shuttle, LLC v. IGuide
Tours, 406 S.W.3d 723, 738 (Tex. Ct. App. – Houston (14th Dist.) 2013, pet.
denied) (citing Cappuccitti v. Gulf Indus. Prods., Inc., 222 S.W.3d 468, 482
3
The District Court did not make any findings of fact or conclusions of law that Ms. Vermeulen was Predator’s alter
ego. See CR 287.
23 4851-2191-0817.v1
(Tex.App.-Houston [1st Dist.] 2007, no pet.). Flotek has failed to make such a
showing.
The alter-ego theory “applies ‘when there is such a unity between
corporation and individual that the separateness of the corporation has ceased and
holding only the corporation liable would result in injustice.’” Aluminum Chems.
(Bolivia), inc. v. Bechtel Corp., 28 S.W.3d 64, 67 (Tex. App. – Texarkana 2000, no
pet.)) (quoting Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex. 1986)). It is
shown “from the total dealings of the corporation and the individual, including the
degree to which . . . corporate and individual property have been kept separately,
the amount of financial interest, ownership and control the individual maintains
over the corporation, and whether the corporation has been used for personal
purposes.’” Id.
In this case, Flotek failed to allege alter ego in the Live Pleading, and there
is no evidence in the record to support Flotek’s argument that Ms. Vermeulen is
Predator’s alter ego. Instead, Flotek baldly made that argument, citing no
supporting evidence. CR 229. Not only is the record devoid of any evidence, the
assertion is contrary to the record evidence. Ms. Vermulen has only a minority
interest in Predator, owning only 20 percent and being only one of five (5) owners.
CR 274. She does not have a controlling interest. See id. Flotek provided no
evidence that she has any financial interest greater than her relative ownership
24 4851-2191-0817.v1
percentage. There is certainly no evidence that she used the monies of the company
as her own or for her personal purposes. In short, there is simply no evidence to
overcome the presumption that Ms. Vermeulen was separate from Predator.
Therefore, Ms. Vermeulen’s limited contacts with Texas taken in a representative
capacity do not subject her to jurisdiction in Texas.
IV. Exercising Jurisdiction over Predator Would not Comport With Fair
Play and Justice
Even if the Court were to decide that Predator and/or Ms. Vermeulen
purposefully established minimum contacts with Texas, those contacts must still be
evaluated in light of other factors to determine whether the assertion of personal
jurisdiction over them comports with fair play and substantial justice. Guardian
Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 228
(Tex. 1991) (citing Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113–
15, 107 S. Ct. 1026, 1033–34, 94 L. Ed. 2d 92, 105 (1987); Burger King Corp. v.
Rudzewicz, 471 U.S. at 462, 476, 105 S. Ct. 2174, 2184 (1985). Only after a court
determines that a nonresident defendant has purposefully established minimum
contacts with the forum state — and neither Predator and Ms. Vermeulen have
done so — will the court evaluate these contacts in light of other factors to
determine whether the assertion of personal jurisdiction comports with fair play
and justice. Id. These factors include: 1) the burden on the defendant, 2) the
interests of the forum state in adjudicating the dispute, 3) the plaintiff’s interest in
25 4851-2191-0817.v1
obtaining convenient and effective relief, 4) the interstate judicial system’s interest
in obtaining the most efficient resolution of controversies, and 5) the shared
interest of the several States in furthering fundamental substantive social policies.
Id.
Fundamentally, the Court need not engage in this analysis because neither
Predator nor Ms. Vermeulen have minimum contacts with Texas. However, in
addition to the foregoing, these five (5) factors also militate against the exercise of
jurisdiction over Predator and Ms. Vermeulen. As for the first factor, the burden to
these defendants in defending this case is substantial. Predator, a company of six
(6) employees, and Ms. Vermeulen are forced to defend themselves in a venue
many states and approximately 1,300 miles away. Predator would need to send
one or more representatives to Texas to attend court proceedings, and this would
unduly disrupt Predator’s business and operations. The cost and time associated
with such travel are considerable, as would be the lost business opportunities for
Predator. With respect to the second and third factors, Texas has little interest in
providing a forum to litigate a dispute between Appellee and complete strangers,
especially when there are other, less burdensome forums for Appellee to bring its
claims. Lonza AG v. Blum, 70 S.W.3d 184, 193 (Tex. App.--San Antonio 2001,
pet. denied) (holding that the exercise of long-arm jurisdiction would not comport
with fair play and justice after noting that evidence existed outside the subpoena
26 4851-2191-0817.v1
power of the court). It is important to note that Appellee also conducts business in
Wyoming. CR 296 Consequently, there is no reason why this dispute cannot be
litigated in Wyoming, a forum where Flotek, Predator, and Ms. Vermeulen all have
a presence.4 Id. Finally, any interests of factors 4 and 5 do not outweigh the
mandate from factors 1, 2, and 3 not to exercise jurisdiction over Predator or Ms.
Vermeulen.
In short, it would offend traditional notions of fair play and substantial
justice if Texas asserted jurisdiction over these defendants. As such, Flotek’s
claims against Predator and Ms. Vermeulen should be dismissed. Guardian Royal
Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 232-233
(Tex. 1991) (finding that it would offend traditional notions of fair play and justice
to subject a nonresident defendant to personal jurisdiction in Texas because it
would be burdensome for the defendant to submit to a foreign judicial system
when the alleged acts occurred outside of Texas).
V. CONCLUSION
Predator and Ms. Vermeulen respectfully request that the district court’s
ruling denying Appeallants’ Special Appearances be reversed. Ms. Vermeulen
and Predator further request that they be dismissed from the action in the trial
court for lack of personal jurisdiction.
4
In fact, the only other party to this lawsuit, Chris Vermeulen, lives in Casper, Wyoming, and would be subject to
personal jurisdiction in Wyoming.
27 4851-2191-0817.v1
Respectfully submitted,
ANDREW L. MINTZ, PLLC
/s/ Andrew L. Mintz
Andrew L. Mintz
SBOT No. 24037120
2603 Augusta, Suite 880
Houston, Texas 77057
PHONE: (713) 780-7100
FAX: (713) 780-7111
KIRTON MCCONKIE
Ryan B. Frazier (pro hac vice)
50 E. South Temple, Suite 400
Salt Lake City, Utah 84111
PHONE: (801) 328-3600
FAX: (801) 221-2087
ATTORNEYS FOR DEFENDANT
PREDATOR DOWNHOLE, INC.
28 4851-2191-0817.v1
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
this computer generated document is printed in 14-point typeface and contains
6591 words, including footnotes, but not including the caption, identity of parties
and counsel, statement regarding oral argument, table of contents, index of
authorities, statement of the case, statement of issues presented, statement of
jurisdiction, signature, proof of service, certification, and certificate of compliance.
/s/ Andrew L. Mintz
Andrew L. Mintz
CERTIFICATE OF REVIEW
Pursuant to Texas Rule of Appellate Procedure 52.3(j), I hereby certify that I
have reviewed the Petition for Writ of Mandamus and concluded that every factual
statement in the petition is supported by competent evidence included in the
record.
/s/ Andrew L. Mintz
Andrew L. Mintz
CERTIFICATE OF FILING AND SERVICE
I hereby certify that this document was filed with Clerk of Court through the
Court’s electronic filing system (“efs”) and served on Appellee’s opposing
counsel by the same, or by regular U.S. mail if Appellee’s opposing counsel is
not enrolled to receive service by efs, on December 7, 2014.
/s/ Andrew L. Mintz
Andrew L. Mintz
29 4851-2191-0817.v1