Morris v. B C Olympiakos SFP, No. 4:2003cv03489 - Document 45 (S.D. Tex. 2010)

Court Description: MEMORANDUM OPINION AND ORDER denying 34 MOTION to Strike the Declaration of Christos Stavropoulos, granting 18 MOTION to Vacate 10 Default Judgment.(Signed by Judge Sim Lake) Parties notified.(hcarr, )

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXA S HOUSTON DIVISION 5 5 5 5 5 $ 5 5 5 CHRISTOPHER MORRIS, Plaintiff, B .C . OLYMPIAKOS, Defendant . CIVIL ACTION NO . H-03-3489 MEMORANDUM OPINION AND ORDER Pending before the court KAE Olympiakos SFP'S Motion to Vacate Default Judgment ( Docket Entry Motion and Plaintiff's Strike the Declaration of Christos Stavropoulos ( Docket Having considered the motions, responses and Entry No . additional briefing, the parties' submissions, p rocedural history of this case, and the applicable law , the court concludes, for the reasons explained below , that the motion to vacate should be granted and the motion strike should be denied . Procedural Background This action Morris v. B C Olympiakos SFP arises from an agreement between plaintiff, Doc. 45 Christopher Morris ( Morris), Olympiakos, Greek national basketball club , basketball in Greece . Dockets.Justia.com former NBA basketball player, and Morris play 2003, Morris sued Olymp iakos August breach contract and fraud arising from Olympiakos' alleged failure to pay Morris for his professional basketball servicesx On April 21, 2004, Olymp iakos was served with a summons and a Plaintiff's Original Complaint pursuant copy the Hague convention .z On August Entry of and Default Judgment ( Docket Entry No. 8) because Olympiakos had been served with a summons and a copy of the complaint but had not filed a responsive pleading otherwise defended the On September 1, 2004, the court entered an Order ( Docket Entry No. granting Morris' request for entry of default judgment, and Final Default Judgment ( Docket Entry No . which the court adjudged that Morris nrecover from defendant Olympiakos SFP, the sum of $910,000 together with post-judgment interest thereon at 2 .03% per annum .' ' the rate On September Assignment 2009, Morris filed an Acknowledgment Judgment ( Docket Entry No. stating that 'l ' hereby transfer and assign a11 title, rights and interest within judgment to the following person : Gary the Ebert . October of 2009 Ebert filed Plaintiff's Application and Memorandum lsee Plaintiff's Original Complaint, Docket Entry 2See Exhibit A attached to Plaintiff's Request for Entry Of and Default Judgment, Docket Entry No . 8. - 2- an Order Issuance Writ Garnishment ( Docket Entry No. 13), which the court granted ( Docket Entry No . On November 2009, Olympiakos filed the pending motion to vacate default judgment ( Docket Entry No. II . Motion to Strike Plaintiff's assignee, Gary W . Ebert r moves declaration of Christos Stavropoulos inadmissable hearsay, and Olympiakos' Rule 60( b) on grounds strike the that thus incompetent evidence to support motion.'? Ebert argues that ' Stavropoulos has not met the required elements of Fed . R . Evid . 803 such that the records on which he states he relied in making his declaration come w ithin any recognized hearsay exception . Stavropoulos states clearly that his declaration is p remised solely nupon E his) review of the books and records of Olympiakos.' ' Stavropoulos also testified during his recent deposition that none of the information contained in his declaration is based on his own personal knowledge . Because the information and testimony contained in Stavropoulos' declaration lacks the required foundation to qualify for any hearsay exception, Plaintiff objects to the admission of the declaration and moves the Court to Mr . Stavrop oulos' declaration in its entirety .4 strike 3plaintiff's Motion to Strike the Declaration of Christos Stavropoulos, Docket Entry No . 34, 1. l Memorandum in Support of Plaintiff's Motion to Strike the Declaration of Christos Stavropoulos, Docket Entry No . 35, p . 2 . Olympiakos argues in response that Ebert's objections Stavropoulos declaration impact the weight the court is to give the declaration but not its admissibilityx A. Applicable Law The Stavropoulos declaration is not inadmissible hearsay if it comes within an exception to the Hearsay Rule . Federal Rule of Evidence 803 ( provides, in pertinent part, that: 6) The following are not excluded by the hearsay rule ( 6) A memorandum , report, record , or data compilation, in any form , of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum , report, record, or data comp ilation , all as shown by the testimony of the custodian or other qualified witness, . . unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness . Rule 803 ( 6) nrequires that either the custodian business records Aother qualified witness' the foundation before the records are admitted .' United States Commoditv Futures ' Tradinq Commission v. Dizona, 594 F. 3d 408, 415 ( 5th Cir. 2010) ( quoting United States v. Brown, 553 F.3d 768, ( 5th Cir. 2008), s Reply Memorandum of Law of KAE Olymp iakos SFP in Further Support of Its Motion to Vacate Default Judgment and in Opposition to Motion to Strike Declaration, Docket Entry No . 39, p . 13. cert. denied, admissible under trustworthiness .' ' Whether ( 2009)). Rule nchiefly 803 ( 6) evidence matter of Mississippi River Grain Elevator, Inc . v . Bartlett & Co., Grain, 659 F.2d 1314, ( 5th Cir. 1981). Since records maintained in the regular conduct of business are generally trustworthy and because such evidence often necessary, nthe business records exception has been construed generously favor of admissibility .' Conoco Inc . v . Department of Enerqv, 99 F .3d ' ( Fed. 1997). ' Tqhere N no requirement that the witness who lays the foundation be the author of the record or be able to personally attest to accuracy .' ' Dizona , AA qualified witness is one who ' explain the record keeping system requirements of Rule 803 ( 6) are met.' ' personal F.3d at knowledge the Id. ' Tq 'E he witness need not have record keeping circumstances under which the objected United States v . Box, F.3d 345, p ractice records were kept.' ' ( 5th Cir.), cert . denied, 309 (1995). governs the uabsence of entry records kept accordance with the provisions of paragraph (6)./ It provides: ' Evidence that a matter is not included in the memorandum , reports, records, or data compilation s, in any form , kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum , report, record, or data compilation was regularly made and preserved , unless the sources of information or other circumstances indicate lack of trustworthiness . This rule allows evidence of the nonoccurrence of based would normally be recorded under Rule 803(6) principal that when duty matter that record certain matters exists, non-existence of a record is evidence for the converse proposition, that the matter about which there is no report did not occur . only requirement use evidence to prove the non- existence of an act is the laying of a proper foundation . a proper foundation order is not essential that the offering witness be the person who actually recorded the events . sufficient that the with respect to the way in which the records were made and the fact that they were retained Jones, (1977). the regular course F .2d business . United States v . Cir.), cert. denied, Since Rule 803(7) is based on Rule 80346), the testimony of the custodian of the records qualified witness required before evidence may be received under Rule 803 ( 7) 6 The Advisory Comm ittee Note to % leaves open the possibility that the absence of evidence from a record is not hearsay at a11 : nWhile probably not hearsay as defined in Rule 801, decisions may be found which class the evidence not only as hearsay but also as not within any exception . In order to set the question at rest in favor of adm issibility, it is specifically treated here .' At least one court recently has noted the possibility that ' nevidence that a record does not exist arguably is not hearsay at a1l .' United States v . Cervantes-Flores, 421 F .3d 825, 832 n . 4 ' - ( 9th Cir. 2005), cert. denied, 128 S. Ct. 244 ( 2007). For present purposes, the court assumes that such evidence is hearsay, but ( continued...) - 6- B. Application of the Law to the Facts Stavropoulos states in his declaration that he is nthe general manager of KAE Olympiakos SFPZ ' and that he made nthis declaration R based upon ( hisq review of the books and records of Olympiakos.'' ' Ebert contends that the Stavropoulos declaration lacks an appropriate foundation because during his deposition, Stavropoulos stated that he had no first hand knowledge of Olymp iakos' relevant activities, that he does not know the Olympiakos books and records that he reviewed are comp lete accurate , that he has never been the custodian of Olympiakos' books and records, and that there is currently no custodian of Olympiakos' books and recordsx response , Olympiakos has submitted second declaration from Christos Stavropoulos stating that his first declaration was based on his uexhaustive and extensive multi-day search through Olympiakos' books and records, including general leger, and 6t...continued) admissible under Rule 8O3 ( ). 7 VDeclaration of Christos Stavropoulos in Support of Defendant's Motion to Vacate Judgment Under Rule 6O ( b) of the Federal Rules of Civil Procedure ( Stavropoulos Declaration), Exhibit A attached to Memorandum of Law of KAE Olympiakos SFP in Support of Its Motion to Vacate Default Judgment, Docket Entry No . 19, 1 % 1. 8Id . at g Memorandum in Support of Plaintiff's Motion to Strike the Declaration of Christos Stavropoulos, Docket Entry No . 35, p . 6 ( citing excerpts from the Deposition of Christos Stavropoulos, Exhibit B attached thereto) . thousands upon thousands of docum ents located in two warehouses in Greece,zl and that 'o g ijt was Olympiakos' practice to store its business documents in these warehouses . The records in these warehouses were prepared and maintained in the ordinary course of Olympiakos' business . I have no reason to believe that any documents have been removed from the warehouse .l1 Stavropoulos has demonstrated through second declaration that the records he reviewed were kept in the regular course Olympiakos' business . Although Ebert contends that Stavropoulos' second declaration inadmissible because an affidavit cannot be used to contradict prior statements made statements deposition , the Stavropou los' second declaration do not contradict the statements deposition . Ebert does not cite , and the court has not found , any place in Stavropoulos' deposition where counsel asked Stavropoulos answered questions regarding knowledge of Olympiakos' record keeping practices . Stavropoulos' statement in his second declaration that the records he reviewed Olympiakos' warehouses were p repared and maintained in the ordinary course of Olymp iakos' business satisfies l DDeclaration of Christos Stavropoulos in Further Support of Defendant's Motion to Vacate Judgment Under Rule 60( b) of the Federal Rules of Civil Procedure and in Opposition to Plaintiff's Motion to Strike the Declaration of Christos Stavropoulos ( Stavropoulos Supplemental Declaration) attached to Reply Memorandum of Law of KAE Olympiakos SFP in Further Support of Its Motion to Vacate Default Judgment and in Opposition to Motion to Strike Declaration, Docket Entry No . 39r p . 2 % 3 . l . at t lld l . - 8- Rule 803 ( 6) that the requirements witness 1ay a proper foundation . Although Stavropoulos did not know whether the records were complete, the fact incomplete does inadmissible . not records might be inaccurate and/or make them untrustworthy and , thereforez See crompton-Richmond Co ., Inc . Factors v . Briqqs, 560 F.2d 1195, 1202 ( 5th 1977) ( arguments based on inaccuracy and incompleteness of business records go to weight not to admissibility). Once a foundation specific and credib le evidence approach is laid, untrustworthiness, the proper adm it the evidence and permit determine indicates the absence of fact finder Although Rule 803( 6) that evidence can be excluded nthe source of information or the method or circumstances of prep aration indicate lack of trustworthinessr' the court concludes that Stavropoulos' ' declaration should be considered . See Rosenberq v . Collins, 624 F.2d 659 ( 5th Cir. 1980) ( records prepared before litigation is foreseeable and su fficiently trustworthy company conducting daily Accordingly, plaintiff's motion Christos Stavrop oulos Alternatively, declaration admissible be relied on affairs are strike admissible). declaration be denied . court concludes under Rule 807 's Stavropoulos' residual hearsay exception . The residual hearsay exception permits the admission of an out-of-court statement not covered by Rule 803 - 9- the court determines that ( the statement is offered A) evidence of a material fact; ( the statement is more B) probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and ( the general purposes of these C) rules and the interests of justice will best be served by admission of the statement into evidence . Evid . Fed . The residual exception applies only statements nnot specifically covered by Rule 803 .' Id . The Fifth ' Circuit interprets this phrase admissib le under one mean that, statement the hearsay exceptions, that exception should be relied on instead of the residual exception . See United States v . Ismoila, F. 3d 380, 392-93 1996), cert. ( 1997) denied sub nom Debowale v . United States, ( finding credit cardholder statements admissible under residual exception after determ ining that statements were inadmissible as business records); United States v. Hitsman, 6O4 F. 2d 1979) ( college transcript not admissible as business record under Rule 803(6) because neither custodian nor qualified witness available to testify properly admitted under residual exception). court requirements 803( 6) course m indful that merely fulfilling the the hearsay exceptions outlined 803( 7) does not establish either Rules dispositive conclusive instead, clearing these evidentiary hurdles only perm its introduction of evidence certain testimony in evidence . the issue In weighing Olympiakos' contacts with Texas, Stavropoulos' testimony Stavropoulos was will be the custodian accorded of little weight . Olympiakos' books and records, and at least prior to the time that this action was filed involved wa s Olympiakos' efforts Moreover, Stavropoulos admits that the books recruit and players. records he reviewed are not well organizedxz C. Conclusions For the reasons explained above, plaintiff's motion to strike the declaration of Christos Stavropoulos will be denied . 111 . Motion to Vacate citing Federal Rule of Civil Procedure 6O ( 4), Olympiakos b)( asserts entitled relief from the default judgment because the judgment is void.l Olympiakos argues that 3 E tqhe judgment in this case is void because the Court did not have personal jurisdiction over Olympiakos. As explained fully in its memorandum in support of this motion , Olympiakos had no contacts whatsoever with the State of Texas in connection with its dealings with H Deposition of Christos Stavropoulos, Exhibit B attached to Memorandum in Support of Plaintiff's Motion to Strike the Declaration of Christos Stavropoulos, Docket Entry No . 35, pp . 810, 13-15, and 23-25. 1 3KAE Olympiakos SFP'S Motion to Vacate Default Judgment ( Motion to Vacate), Docket Entry No. 18, pp. 1-2 % 4. Morris, and the services contracted for were a11 to be performed in Greecex l A. Standard of Review A Rule 60( 4) motion allows a party to receive relief from b)( a final judgment, order, or proceeding if the underlying judgment void . The Fifth Circuit has recognized two circum stances which a judgment may be set aside under Rule 60 ( 4): b)( the lacked subject matter or personal jurisdiction; and the court acted a manner inconsistent with due p rocess of law . ( 998) . 1 60 ( ( b) 4) The Fifth Circuit has explained that Rule nembodies 'defendant default Cir.), cert. denied, 1000, Carter v . Fenner, p rinciple that in court, proceedings, always judgment, and federal then challenge that judgment jurisdictional grounds.'' Jackson v. FIE Corpw 302 F.3d 515, ' 2002) ( quoting Insurance Corp . of Ireland , Ltd . v . ( 5th Compagnie des Bauxites de Guinea, 2099 ( 1982)). generalr ' whether in personam jurisdiction can be exercised over defendant Id. at F.3d question of 1aw and subject de novo review.r' ' ( quoting Dickson Marine Inc. v. Panalpina, Incw 335 ( 5th 1999)). This is so because nA Rule 60( ( motions leave no margin for consideration of the district b) 4) l4Id court's discretion as the judgments themselves are by definition either legal nullities or not.'' Id . ( ' quoting Carter, 136 F.3d at 1005) . Citing Jackson, 302 F .3d at 520-21, Ebert argues that ' 'the law of this case that Olympiakos bears Court lacks jurisdiction burden of p roving that enter valid judgment against Ebert exp lains that Olympiakos, like E the Jackson defendant), knowingly suffered a default judgment to be rendered against it. Like g the Jackson defendant), Olympiakos never challenged the Court's jurisdiction by appealing the judgment of the original action . Accordingly , under the Fifth Circuit's reasoning in E lacksonl, the Court should require Olympiakos to prove that it was not properly subject to the Court's jurisdiction before vacating the judgment pursuant to Rule 60( 4). 6 b)( 1 Ebert's argument misplaced because the procedural posture Jackson differed from the procedural posture here . In Jackson, the defendant filed a Rule 60( 4) motion b)( vacate . The district court r E nloting that the question who bears the burden of proof in a Rule 60 ( 4) challenge to personal jurisdiction is b)( one that has not been answered for this circuit, . . . adopted the view of the Seventh Circuit that once a defendant with notice chooses to suffer a default judgmentr he is the party who thereafter must shoulder ls plaintiff's Sur-Rep ly to Olympiakos' Memorandum of Law in Further Support of Its Motion to Vacate Default Judgment, Docket Entry No . 43, p . 4 % 8 . l6ld . See also Plaintiff's Memorandum in Opposition to Defendant's Motion to Vacate Judgment, Docket Entry No . 36, p . 3 ( arguing that nOlympiakos carries the burden of proving that the court lacks personal jurisdiction over it') ' the p roving burden the absence personal jurisdiction. Id . at 520-21. The defendant appealed the district court 's denial of Rule 60( 4) motion to vacate, but did b)( challenge the district court's holding 'that the burden of proof shifts ' movant .' ' defaulting defendant and Rule 60 ( b) the Id . at 521 The Fifth Circuit explained that because the defendant Mhas not challenged this ruling on appeal : now law of the case . not yet, however, the 1aw of this circuit, as we do not reach the issue and need choose a side split of authority on this question, leaving that for another day .' Id . Since the issue ' which party bears the burden 60( ( b) 4) motion vacate has proof on Olympiakos' Rule previously been considered case' on this issue has yet ' this case, be established . The parties and the courts differ over who bears the burden of showing personal jurisdiction or lack thereof the context of a Rule 60 ( ( motion. Normally, the plaintiff bears the burden of b) 4) demonstrating the court's ability to exercise jurisdiction over the defendant . See Luv N ' Care, Ltd . v . Insta-Mix , Inc ., 438 F .3d 465, 469 ( 5th cert. denied, S. 2968 ( 2006) ( uWhere defendant challenges personal jurisdiction, the party seeking invoke the power of the court bears the burden of proving that jurisdiction exists.' '). question, and the case However, Rule 60 silent on this is unclear on which party bears the - 14- burden after a default judgment has been entered. The Second and Seventh Circuits have placed the burden of proof on the defendant . See Ballv Export Corp . v . Balicar, Ltd., 1986) F. 2d 398, ( 7th the defendant, after receiving notice, chooses case a default judgmentz defendant must then shoulder the burden of proof when the defendant decides jurisdiction contest post judgment rule 60( 4) motion.'); Burda b)( ' Media, Inc. v . Viertel, F.3d 292, 299 ( 2d hold that vacate a default judgment based motion 2005) ( nWe now improper service of process where the defaulting defendant actual notice the original proceeding but delayed bringing the motion, the defendant bears the burden of proof to establish that the purported service did not occur.' /). As the Second Circuit explained , placing the burden On the defendant reflects nthe concerns of comity among the district courts of the United States, the interest in resolving disputes in a single judicial proceeding, the interest of the plaintiff in the choice of forum, and the fear of prejudice against a plaintiff who, owing to delay, might in subsequent collateral proceedings no longer have evidence of personal jurisdiction that existed at the time of the underlying suit .' ' Burda, 417 F.3d at 299 ( quoting Miller v. Jones, 210-11 Conn . 1991)). F. Supp. Although the Fifth Circuit has rule on this issue, at least one district court in this circuit has held that the burden remains with the plaintiff . Rockwell International Corr . v . KND CorD ., 83 F.R .D . 556 ( D. Tex. 1979), the court entered a default judgment in favor N. plaintiff, and the defendants filed motions for relief from judgment pursuant claiming that Rule 60 ( b) judgments entered against them were void because the court lacked personal jurisdiction. The plaintiff argued that the burden of establishing the earlier judgment issued without personal jurisdiction must fall on the defendants, and that such a showing could be fulfilled only through the presentation of strong and convincing evidence . correct, would Observing that ' tjhis assignment of the burden, 'g reverse the normal placement when a party challenges the existence of personam jurisdiction through a Rule 12 motion to dismissz' id . the court rejected the plaintiff's argument. Citing McNutt v . General Motors Acceptance Corp . of Indiana, Inc w 56 S. Ct. 78O ( 1936), the court concluded that who must shoulder the task of showing affirmative jurisdictional finding the plaintiff facts that permit an burden that may not be shifted .' Id . ' McNutt, 56 S . statutory amount 780, involved controversy required challenge the the exercise of diversity jurisdiction, but the reasoning underlying the Court's decision applicable being challenged the exercise of personal jurisdiction this case . There the Supreme Court explained the plaintiff - 16- must allege in his pleading the facts essential to show jurisdiction. If he fails to make the necessary allegations he has no standing . If he does make them , an inquiry into the existence of jurisdiction is obviously for the purpose of determining whether the facts support his allegations . In the nature of things, the authorized inquiry is primarily directed to the one who claim s that the power of the court should be exerted in his behalf. As he is seeking relief subject to this supervision, it follows that he must carry throughout the litigation the burden of showing that he is properly in the court . The authority which the statute vests in the court to enforce the limitations of its jurisdiction precludes the idea that jurisdiction may be maintained by mere averment or that the party asserting jurisdiction may be relieved of his burden by any formal procedure . If his allegations of jurisdictional facts are challenged by his adversary in any appropriate manner, he must support them by competent p roof . And where they are not so challenged the court may still insist that the jurisdictional facts be estab lished or the case be dismissed, and for that purpose the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of the evidence . Here, the allegation in the bill of complaint as to jurisdictional amount was traversed by the answer. The court made no adequate finding upon that issue of fact, and the record contains no evidence to support the allegation of the bill . There was thus no showing that the District court had jurisdiction and the bill should have been dismissed upon that ground . 56 S . Plaintiff's Original Complaint alleged that u l tqhis Court has personal jurisdiction over Olympiakos because r among other things, Olympiakos does business in Texas and because the facts giving rise to the Complaint, including the formation of the contract at issue, occurred in Texas.'l Plaintiff also alleged : /V U plaintiff's Original Comp laint , Docket Entry No . Olympiakos is a basketball team that competes one of the Greek leagues . In 1999, through M orris' agent , Olympiakos contacted and solicited Morris in Texas about playing for the team in the Greek league . 8. Olympiakos, through Morris' agent, made representations to Morris while he was in Texas about playing basketball in Greece . Olympiakos forwarded a draft written basketball agreement to Morris while he was in Texas . 10. A written agreement ( nAgreement') ' between Olympiakos and Morris was subsequently executed on August 31, 1999. A true and accurate copy of the Agreem ent is attached hereto as Exhibit 'A' ' '. Pursuant to the Agreement, Olymp iakos agreed to pay Morris for p laying basketball for it in the Greek league . 12 . Based upon Olymp iakos' statements and representations, Morris expended significant time and money, and did not pursue other basketball opportunities, in order to travel to Greece to play basketball. Under the Agreement, Olymp iakos also was required to provide Morris with qualified medical assistance for any injuries suffered playing basketball. Olympiakos breached that p rovision of the Agreement by not providing such qualified help after Morris suffered an injury. Olympiakos further b reached that Agreement by unilaterally and unlaw fully terminating that Agreement without good cause . Olympiakos has refused to pay Morris the monies he is owed under this Agreement, and has also refused to address the aggravation of Morris' injury which - 18- was caused by the failure provide qualified medical assistance x' Because Rule 60 ( ( b) 4) nembodies the principle that ' defendant proceedings, risk judgment always free ignore jurisdictional grounds,r' Jackson, ' Olympiakos jurisdictional facts 60( b) judicial default judgment, and then challenge that F.3d ( quoting Insurance Coro . of Ireland, because federal has challenged at 2106), and p laintiff's allegations an appropriate manner by filing its Rule motion, the plaintiff must now support his allegations jurisdictional facts with evidence. concludes that the plaintiff Accordingly, the this case the plaintiff's assignee, Ebert) not the defendant bears the burden of proof on the B. Applicable Law Plaintiff's Original Complaint ( Docket Entry No. alleges state 1aw claims for breach of contract and fraud r and alleges that court has pursuant 5 1332 as there is complete diversity of citizenship and the amount claim s arising under state law in controversy exceeds $75,000. federal courts ' 'Asitting jurisdiction diversity assert E personalq state's long-arm statute applies, as l Id . at 2-3 %% 6-16. 8 - 19- interpreted state's courts; and due process satisfied under the E Flourteenth g mendment to the United States Aq Constitution .'' Johnston v . Multidata Svstems International Corp w ' F.3d 602, 6O9 ( 5th 2008) ( quoting Cvcles, Ltd. v. W . J. Diobv , Inc ., 889 F .2d 612, l989)). Texas long- arm statute authorizes service of process on nonresidents uE iln an action arising from nonresident's business this state .' ' Tex . Civ . Prac . & Rem . Code 5 17 .043 . The Texas Supreme Court has stated that long-arm statute's broad doing-business language allows the statute to 'reach as far as the federal constitutional requirements due process will allow .f' ' Moki Mac River Expeditions v . Druqq, 221 S. .3d 569, 575 ( W Tex. 2007) ( quoting Guardian Roval Exchanqe A ssurance, Ltd . v . Enqlish China Clavs, P. C ., L. S. . W 2d 223, ( Tex. 1991)). Exercise of personal jurisdiction over a nonresident defendant comports with federal due process guarantees when the nonresident defendant has established minimum contacts the forum state , and exercise jurisdiction ndoes not offend A traditional notions of fair play and substantial justice.'' International ' Shoe Co. v. State of Washington , Office of Unemplovment Compensation and Placement, - 66 S . 339, ( 5) ( 194 quoting Milliken v . Mever, 343 ( 1940)). Once plaintiff satisfies these two requirements a presumption arises that jurisdiction is reasonable, the burden of proof and persuasion shifts defendant opposing jurisdiction npresent a compelling case that the presence of some other considerations would render jurisdiction unreasonable .' ' Burqer Kin? Coro . v . Rud zewicz, 2174, 2185 ( 1985). C. Undisputed Facts Citing the declaration General Manager, Christos Stavropoulosr Olympiakos argues that the default judgment is void personal jurisdiction because Olympiakos had no contacts with the State of Texas in connection with Morris . Ebert has submitted any ev idence that contradicts the relevant aspects of Stavropoulos' declaration regarding Olymp iakos' general business practices, that Olympiakos formed under Greek law , that Olymp iakos basketball club s with corporate entity One principal place Greece's national business Piraeus, Greece , that Olympiakos does not maintain a presence in Texas, and that on June 24, 2009, Olympiakos was acquired by new owners . Nor has Ebert submitted any evidence that contradicts relevant aspects of Stavropoulos' declaration regarding Olympiakos' contacts with Morris, i .e ., that the contract at issue was entered by the parties on August negotiated through Boutogiannis 1999, Morris' Boston, Delibaltadakis, an associate Greece, that agents, Tom contract was M cLaughlin Massachusetts, McLaughlin's and and Andy Anastassios Greece, and that the contract was services performed Greece .19 Stavropoulos' statements concerning Olympiakos' general business practices and contacts with Morris are corroborated by Olympiakos' written contract with Morris which attached Plaintiff's Original Complaintrz and/or Olympiakos' written contract with o Morris' agent, Tom McLaughlin , which attached Stavropoulos' declaration .zl lg Memorandum of Law of KAE Olympiakos SFP in Support of Its Motion to Vacate Default Judgment, Docket Entry No . 19, pp . 3-5 ( citing Exhibit A attached thereto, Declaration of Christos Stavropoulos in Support of Defendant's Motion to vacate Judgment under Rule 6O ( b) of the Federal ( Stavropoulos Declarationl) Rules of Civil Procedure M contract , attached to Plaintiff's Original Complaint, Docket Entry No. 1 ( opening lines show that the contract was executed in Piraeus, Greece, on August 1, 1999, by Morris and Olympiakos SFP, a Basketball Company located in Piraeus, Greece ; A rticle 15 shows that Morris designated Tassios Delibaltadakis, a resident of Athens, Greece, as his nattorney in fact'). ' z Agreement , attached to Stavropoulos' Declaration attached to l Memorandum of Law of KAE Olympiakos SFP in Support of Its Motion to Vacate Default, Docket Entry No . 19 ( showing that Olympiakos agreed to negotiate an agreement for Morris to play basketball in Greece through McLaughlin and Boutogiannis whose company, Best in Sports, had an account at the Bank of Boston). See also Affidavit of Tom McLaughlin attached to Reply Memorandum of Law of KAE Olymp iakos SFP in Further Support of Its Motion to Vacate Default Judgment and in Opposition to Motion to Strike Declaration, Docket Entry No . 39, at %% 2-3 stating that he has at a11 times been a resident of Boston , Massachusettsr and that his company , Best in Sports, has been located in Andover, Massachusetts since 1995). - 22- D. Analy sis Ebert argues that a1l of the credible evidence establishes that Olymp iakos did have the necessary requisite contacts with Texas . Not only did Olympiakos solicit Christopher Morris . ., a Texas resident , for emp loyment, but Olympiakos also solicited other Texas residents for employment during the same relevant time period. Under Section 17 .042 ( , such 3) solicitations of Texas residents for employment, whether accomplished inside or outside the state, are acts that constitute udoing business,' suf ficient to confer ' personal jurisdiction over the soliciting person or entity .2 2 In support of his argument that Olympiakos' business contacts with Texas were sufficient the court exercise personal jurisdiction, Ebert submits Morris' declaration and the declaration of Shawn Respert , another former basketball player . In his declaration Morris states : I am a resident and citizen of Texas . I have been a resident of Texas continuously since 1988 . I have had a Texas driver's license since 1988 . Prior to signing the contract with Olympiakos, I had at least one telephone conversation with Olymp iakos' general manager at the time, Takis Liveratos, in July of 1999 . During that telephone conversation , Liveratos urged me to come play for Olympiakos . 6. Prior to that telephone conversation , was undecided about whether I would go play for Olympiakos, but Liveratos convinced me during that telephone call . H plaintiff's Memorandum in Opposition to Defendant 's Motion to Vacate Judgment, Docket Entry No . 36, p . 2 % 4 . - 23- During that telephone call, I told Liveratos that he had made up my mind and that I would come play for Olymp iakos . Liveratos expressed delight . He requested that I p rovide h im my address so that Olymp iakos could send m e something . Within a day or two, a Federal Exp ress package arrived at my Texas residence, from Olympiakos . That package contained a travel itinerary and airline tickets for me to f1y to Italy to play for Olympiakos . 1O . Prior to signing the Olymp iakos contract on August 31, 1999, I flew from Texas to Italy, using the airline tickets sent directly to me from Olympiakos . 11. arrived in Italy on August 10, 1999, and participated in a two-week long training camp with Olympiakos prior to signing the Olympiakos contract . Had it not been for the August 1999 telephone call from Liveratos, I may not have signed the contract to play for O1ympiakos.2 3 In his declaration Respert states : 1. retired professional basketball p layer . During the 1999-2000 basketball season , I played professional basketball for B .C . Olympiakos SFP'S ( uolympiakos') basketball team in Greece . ' Prior to the 1999-2000 basketball season, I was a resident of Texas, with a home in Houston , Texas . 4. During 1999, my agent was Carl Poston, of the firm of Poston & Poston . Carl Poston's office was in H ou sto n , Te xa s . M Declaration of Christopher Morris , Exhib it F attached Plaintiff's Memorandum in Opposition to Defendant's Motion Vacate Judgment, Docket Entry No. 36, %% 3-12 ( emphasis added). - 24- During the summer of 1999, Olympiakos began recruiting me to play basketball through my agent in Houston , Texas . As a result of Olymp iakos' recruitment of me , through Carl Poston in Houston, Texas, I agreed to play professional basketball for Olymp iakos . Following Olympiakos' negotiations with Carl Poston, Olympiakos forwarded a player contract to Carl Poston for me to sign . A fter consulting with Carl Poston , I signed the Olympiakos p layer con tra ct . During the entire time that Olympiakos recruited me to play basketball for it during the summer of 1999, b0th Carl Poston and I were residents of the State of Texas .z d Texas Lon? Arm Statute Citing 5 17.042( 3) the Texas Civil Practice and Remedies Code, plaintiff contends that Olympiakos subject personal jurisdiction because Olympiakos was doing business in Texas when directly recruited him resident at the time . for emp loyment because was a Texas Section 17 .042 of the Texas Civil Practice and Remedies Code provides that g iqn addition other acts that may constitute doing business, a nonresident does business in this state if the nonresident MDeclaration of Shawn Respert , Exhibit G attached to Plaintiff's Memorandum in Opposition to Defendant's Motion to Vacate Judgment, Docket Entry No . 36, %% 1-8 . ( 3) recruits Texas residents, directly or through an intermediary located in this state , for employment inside or outside this state . Ebert contends that Morris was directly recruited by Olymp iakos p lay basketball in Greece because Morris had at least one July Olympiakos' general 1999 telephone manager ( at conversation that time), with Takis Liveratos . During this telephone conversation, Liveratos urged Morris to come play basketball for Olymp iakos . Prior to the telephone conversation with Liveratos, Morris was undecided about whether he would go play for Olympiakos, but Liveratos convinced Morris to join Olymp iakos during conversation .z s the course Ebert also contends that while of that telephone Texas Morris received from Olympiakos a travel itinerary and airline tickets Morris used participate Olympiakos prior Italy which two-week training camp with signing the Olympiakos contractx f The evidence that p laintiff contends establishes Olympiakos recruited him to play basketball requirements Greece does not satisfy the 17.042 ( 3) of the Texas Civil Practice and Remedies Code doing business in Texas . Morris states that he spoke with Liveratos on the telephone either he telephone . Case Liveratos were Ebert has which does state that Texas when they spoke on cited and the court has found any single telephone conversation between a foreign M plaintiff's Memorandum in Opposition to Defendant's Motion to Vacate Judgment, Docket Entry No . 36, 10 % 23. 26 . at Id % 24 . - 26- employer and Texas resident has been held to constitute doing business in Texas recruiting a Texas resident for purposes 17.042 4 of the Texas Civil Practices and Remedies Code. 3) Morris states that after he told Liveratos he would play for Olympiakos, Liveratos asked Morris address so that Olympiakos could send him something , and that within a day or two , package arrived Morris' Texas residence containing a travel itinerary and airline tickets Europe . Although Morris does not state that he provided Olympiakos state that he uflew directly Italy using the airline tickets sent me from Olympiakos .'z '? that Olympiakos sent directly Morris Olympiakos' act of Texas address, Morris does Inferring from this statement travel itinerary and airline tickets Texas, the court cannot sending these items conclude that M orris Texas constitutes recruiting a Texas resident for purposes of 5 17.042 ( 3) of the Texas Civil Practice and Remedies Code . Morris' statement Liveratos asked him for his address so that Olympiakos could send him something shows that Olympiakos did not know where Morris lived, that Olympiakos was prepared to send the travel itinerary and airline tickets whatever address Morris provided, and , therefore , that Olymp iakos did not purposely knowingly recruit a Texas resident . Ebert has not cited and the court has not found z 7Declaration of Christopher Morris, Exhib it F attached to Plaintiff's Memorandum in Opposition to Defendant's Motion to Vacate Judgment, Docket Entry No. 36, % 10 ( emphasis added). any case in which sending a package Texas resident has been held recruiting Texas at the direction of a constitute doing business Texas resident under 5 17.042 ( of the Texas Civil 3) Practices and Remedies Codex' Thus, the court concludes that Ebert has failed to carry his burden of establishing that Olympiakos' contacts with Morris constitute doing business or recruiting a Texas resident under 17. 042( 3) the Texas Civil Practice Remedies Code . Due Process Requirements of the Fourteenth Amendment Exercise of personal jurisdiction over a nonresident defendant comports with federal due process guarantees when the nonresident defendant has established minimum contacts with the forum state, and the exercise of jurisdiction ndoes not offend l traditional notions of fair play and substantial justice.r' International Shoe ' Co., 66 S. Ct. at 158 ( quoting Milliken, 61 S. Ct. at 343) ( a) Minimum Contacts In deciding whether sufficient minimum exercise personal jurisdiction the court contacts exist directed to determine whether 'the defendant's conduct and connection with the forum ' z 8plaintiff's Original Comp laint alleges that 'Olympiakos ' forwarded a draft written basketball agreement to Morris while he was in Texasz ' Docket Entry No. 1, p. 2 % 9, but no evidence has been submitted in support of this allegation . - 28- state are such that he should reasonably anticipate being haled into court there.' ' 55 9, Worldwide Volkswaqen Corp . v . Woodson, (1980). ' lqt is essential 'l each case that there be some act by which the defendant purposefully avails itself of the privilege forum State, thus invoking the benefits and protections of its laws .' Hanson v . ' Denck1a,78 66 1228, at 159). ( 1958) ( citing International Shoe, uThis ' purposeful availment' requirement ensures that a defendant will not be haled into jurisdiction solely as 'attenuated ' result of 'random ,' Afortuitousr' contactsr of the third person ./' ' Burcer Kinq , 105 S . ' jlurisdiction is proper U result from actions by where the defendant at 2183 . Moreover, contacts proximately himself 'substantial connection' with the forum state .' ' that create a Id . at 2183-84. g Wlhere the defendant ndeliberately' has engaged in ' significant activities within a State . or has created ucontinuous obligations' between himself and ' residents of the forum . . . he manifestly has availed him self of the privilege of conducting business there, and because his activities are shielded by nthe benefits and protections' of the forum 's laws it is presumptively ' not unreasonable to require him to submit to the burdens of litigation in that forum as well . Id . at 2184. nThere are two types that give rise A inimum contacts': m those specific personal jurisdiction and those that give rise to general personal jurisdiction .' Lewis v . Fresne, ' F.3d 352, ( 5th Cir. 2001). Olympiakos contends that contacts Texas are insufficient support this court's exercise of personal jurisdiction on the basis of either general specific jurisdiction. g z (1) General Jurisdiction A court may exercise general jurisdiction over a non-resident when the non-resident's ncontacts with substantial, continuous, and systematic .' ' the forum state Johnston, F .3d at ( citing Helicopteros Nacionales de Colombia, S. . v . Hall, A 104 1868, 1872-74 ( 1984)). nThe ' continuous and systematic contacts test contacts a difficult one between defendant meet , requiring extensive a forum .'' ' Id. ( quoting Submersible Svstems, Inc . v . Perforadora Central, S .A . de C . ., V 249 F. 413, 419 ( 3d 5th Cir.), cert. denied, 122 S. Ct. 646 ( 2001)) ' Elven repeated contacts with forum residents by 'Ag foreign defendant may not constitute the requisite sub stantial, continuous, and systematic contacts jurisdiction. contacts of reasonable number finding Id. ( quoting Revell v. Lidov, ( 5th Cir. 2002)). evaluating required general F.3d 467, nGeneral jurisdiction can be assessed by the defendant with the forum over years, up to the date the suit was filed .' ' Access Telecom , Inc . v . MCI Telecommunications Corr ., 197 F .3d 694, M Memorandum of Law of KAE Olympiakos SFP in Support of Its Motion to Vacate Default Judgment , Docket Entry No . 19, pp . 9-13 ( specific jurisdiction) & p. 13 n . 5 ( general jurisdiction). ( 5th Cir. 1999), cert. denied, 121 ( 2000). Ct. at 275 and 292 uThe determination of what period is reasonable the context of each case should be left to the court's discretion .' ' Metropolitan Life Insurance Co . v . Robertson-ceco Corp w Cir.), cert. denied, 84 F .3d ( 996). 1 general jurisdiction purposes, the court does not view each contact isolation but, instead , views a11 the defendant 's contacts in See Access Telecom, a at 717 ( when determining whether nonresident defendant's contacts with sufficient the forum state are establish general personal jurisdiction, contacts must be examined toto' instead ' in isolation). n E vqague and overgeneralized assertions that give extent, duration, indication as to the frequency of contacts are insufficient to support general jurisdiction.' ' See Johnston, F.3d ( citing Gardemal v. Westin Hotel Co., 186 F.3d 588, 596 ( 5th Cir. 1999)). The seminal general jurisdiction case Consolidated Minin? Co., (1952), Perkins v. Benquet which the Supreme Court first articulated the idea that a court may exercise personal jurisdiction over foreign corporation based on general business operations within the forum state . Supreme Court upheld the district court's exercise of general personal jurisdiction in Ohio over Philippine corporation whose president and general manager relocated to Ohio during the Japanese occupation of the Philippine - 31- Islands . While Ohio, president maintained office where he kept the record s corporate the corporation, conducted director's meetings, and made a11 key business decisions . corporation also distributed salary checks drawn on two Ohio bank accounts and engaged an Ohio bank to act as a transfer agent. light of these activities, the Court held that Ohio could exercise jurisdiction over the corporation because the president had ucarried on in Ohio a continuous and systematic supervision of the necessarily limited wartime activities of the company .' ' Id . at 419. Helicopteros the Sup reme Court held that the By contrast, defendant 's general business contacts with Texas were insufficient support an exercise of general jurisdiction despite the fact that defendant had purchased equipment from a company forum state . 104 S . at 1873-74 . the Over a six-year period the defendant purchased helicopters ( approximately 80% of its fleet), spare parts, and accessories for more than million from a Texas company; sent its p rospective pilots to Texas for training; sent management and maintenance personnel Texas consultations; and received a check for over for technical million that was drawn upon a Texas bank. Nevertheless, the Court held that none of the contacts were together substantial enough standing alone taken support the assertion of general jurisdiction. The Court explained that the mere purchase of goods from a state , even - 32- regular intervals and substantial amounts, was not enough to warrant the assertion of general jurisdiction over a non-resident on cau se action unrelated those purchases . Nor was the Court persuaded that the fact that the defendant sent personnel Texas for training connection the purchases enhanced nature of the contacts . Instead, the Court concluded that this was merely one aspect the package defendant had purchased . Finally, goods and services that the Court concluded that the receipt of a check drawn from a Texas bank was of no consequence because bank from which payment was made was caused by the fortuitous uunilateral activity' ' a third party . Id . The Fifth Circuit has consistently imposed the high standard set Supreme Court Helicopteros when ruling on general jurisdiction issues. See, e. q., Central Freicht Lines Inc. v. APA Transportation Corr w 322 F.3d 376, 381 ( 5th Cir. 2003) (finding no general jurisdiction even though the defendant routinely arranged and received shipments to and from Texas and regularly sent sales people Texas develop business, negotiate contracts, and service national accounts). Moreover, in Access Telecom, Fifth Circu it emphasized that order F.3d confer general jurisdiction a defendant must have a business presence in Texas. In that case the evidence of the defendant's ( ï.e. Telmexfs) contacts with Texas from 1990 to 1996 were numerous: Up until 1990, Telmex leased telephone circuits between Arizona and Texas . Telmex's current lines interconnect with Texas at the border in McAllen and E1 Paso . Telmex leased real property in Texas in 1995 and paid taxes to Texas that same year . Telmex contracted to a warehouse 75,000 telephone poles in Laredo around 1990-1991. Telmex had correspondent agreements with a number of U .S . carriers . Settlement revenues from these agreements totaled approximately $1 billion a year in 1994-1995. The total revenues derived from Texas residents totaled m illions of dollars a month . Telmex also solicited ads for yellow page ads in border cities of U .S ., although it is unclear exactly where . Additionally, SBC is alleged to be a Texas contact of Telmex, since SBC own s a portion of a controlling interest in Telmex and thus exerts some control over Telmex . = Id footnote the Fifth Circuit elaborated that number of other contacts are also put forward, mostly involving Telmex paying for services that were provided corporations Texas the Such serv ices included consulting and finance services .' ' Id. & The Fifth Circuit rejected the plaintiff's claim that Telmex's contacts were sufficient confer general jurisdiction because nTelmex hag virtually no contacts which constitute doing d) business in Texas .' Id . ' The Fifth Circuit explained that Primarily, Telmex interconnects its Mexican lines with American lines, enabling long distance communication . The money U .S . companies pay Telmex is for service on the Mexican 1eg of the call; the money the U .S . carriers receive is for the U .S . 1eg of a call . As such, Mexican and U .S . telecommunications companies do business wi th each other in these situations, but neither is doing business in the other country for jurisdictional purposes . The one contact that could constitute doing business in Texas would be the yellow page ads . However, the evidence on the yellow page ads consists of nothing more than a comment that Telmex solicited yellow page ads in border cities in the U .S. without naming which cities, - 34- when this occurred, whether such ads were actually placed, or for how long . Without more , such evidence does not help establish continuous and systematic contacts . In sum , the totality of the contacts suggests that Telmex conducted a great deal of business with Texas, but virtually none in Texas, as such general jurisdiction cannot be shown, even on a prima facie basis . = Id at 717-18. Olympiakos sufficient argues that its maintain offices in Texas, or lease real property Texas, maintain any bank accounts contends that by recruiting pay taxes Texas .'30 ' are 'does not ' ow n : T ex as r A lthough plaintiff Respert, and perhaps other Texas play basketball Greece, Olympiakos was doing Texas, plaintiff business cited any evidence that Olympiakos has ever had a business presence The Texas establish general jurisdiction because reside in Texas, residents contacts with facts as stated declarations show that Morris and Texas . Respert their 1999 Olympiakos recruited them both to p lay basketball in Greece by contacting Morris once by telephone , and by contacting Morris' Massachusetts-based agents and Respert's Texas-based agent more than once . Plaintiff has not cited and the court has not found any case recruitment of state residents a ozd at which court has recognized the out-of-state employment constitute substantial, systematic, and continuous contacts with a forum state needed subject foreign defendant to the court's general jurisdiction. See Clark v. Moran Towinq & Transportation Co., Incw 738 F . Supp . 1023, 1028 ( . La. 1990) ( E D. nMoran Towing and Transportation Company certainly has not submitted court's general jurisdiction based simply on activities 1989'); ' Louisiana from December Casas v. Supp .zd that Northrop Grumman this recruitment 1988 through March of Ship Systems, Inc., ( S.D. Tex. 2008) ( nthe Court cannot find single recruitment effort spurred by natural disaster evinces continuous, systematic, or sub stantial contacts with Texas sufficient to establish general jurisdiction'). Because plaintiff ' has failed cite any evidence showing that O lymp iakos' contacts with Texas have ever been so substantial, systematic, or continuous that Olympiakos nshould have reasonably expected to be sued Texas on any matter, however remote from E those) contactsz' Johnston , 523 F .3d at 613 , the court concludes that the exercise of general jurisdiction over Olympiakos would not comport with the due process guarantees of the Fourteenth Amendment . ( 2) Specific Jurisdiction A court may exercise specific jurisdiction over a nonresident defendant if nthe defendant 's contacts with Texas ' arise from , are directly related the cause action .'' ' - 36- Lewis, 252 F.3d at ( quoting Wilson v. Belin, denied, 115 S. a F.3d 644, ( 5th Cir.), cert. 322 ( 1994)). The Fifth Circuit has articulated three-step analysis for specific jurisdiction: ' 1) whether the defendant has minimum contacts with the 5( 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; ( whether the plaintiff's cause of action arises out of 2) or results from the defendant's forum-related contacts; and ( whether the exercise of personal jurisdiction is 3) fair and reasonable .' ' McFadin v. Gerber, 587 F.3d 753, 759 ( 5th 2009), pet. for cert. filed 78 U.S. W . 3531 ( L. March 3, 2010) ( No. 09-1067) ( quoting Seiferth v. Helicopteros Atuneros, Inc., F.3d 266, 271 ( 5th intensive and 2006)). one element decisive ; rather the touchstone ndefendant's conduct and connection forum State are such that E it) should reasonably anticipate being haled there .' World Wide Volkswagen, ' whether the court at 567 . Purposeful Availment Asserting that Morris resident of Texas, Ebert argues that because Olympiakos recruited Morris for employment, Olympiakos is subject to personal jurisdiction in Texas under the Texas Long Arm statute because Olympiakos was doing business in Texas . Ebert cites Garcia v. Vasquez, 524 Supp. 40 Tex . 1981), as which nthis Court faced this very issue and concluded that case had personal jurisdiction over the defendant.'3 'l Garcia, Supp . North Carolina employer subm itted a request for migrant farm workers worker clearance system was the national farm transmitted Texas Employment Commission ( TEC). A number of migrant workers who were Texas residents responded to the request b y telephoning the Harlingen, Texas, from Minnesota . During the telephone call the communicated the terms of the employment including the wages, hours, and availability of housing . A number the m igrant workers agreed to the terms of employment, but when they arrived North Carolina, availability they discovered that the housing were not as prom ised . wages, hours, and A fter the m igrant workers filed suit in Texas, the North Carolina farmer raised the Even issue of personal though the North Carolina employer had no regular p lace of business designated agent Texas, the court rejected the employer's argument stating that the E dlue process requirements are . . . fulfilled. Defendant . . . purposefully issued the job information in North Carolina . The T.E .C . officials merely acted on his behalf in processing the information . The privilege of conducting activities in Texas was intentionally invoked by E defendantq. This cause of action plainly arises from and is connected with the alleged Texas transaction . M plaintiff's Memorandum in Opposition to Defendant's Motion to Vacate Judgment, Docket Entry No . 36, 12 . = Id Garcia stands the principal that a nonresident farmer who recruits Texas laborers to work in another state, either directly through an agent located Texas, subject to the jurisdiction of Texas courts for claims arising recruitment. See Neizil v . Williams, ( C. Fla. 1989) ( D. citing Garcia from Supp . that 903-04 its holding that the support defendant uaffirmatively established minimum contacts with state of Florida by conducting recruitment efforts in Florida by causing the transmittal Employment Service and clearance order specifying that Florida State Florida contractor conduct recruiting and hiring on Garcia, Supp . at farm labor b ehalf') ' distinguishab le from this case because there the request for laborers was not only communicated and distributed by the Texas-based TEC, but the plaintiffs spoke by telephone Texas, and during that telephone conversation the TEC communicated to the plaintiffs the terms and conditions of employment pursuant to which the plaintiffs agreed to work in North Carolina . Moreover, the claims that the plaintiffs asserted the lawsuit were claims conditions breach the terms emp loyment that the TEC communicated to them during their telephone call Texas . Here, there no evidence that Olymp iakos used any Texas-based entity to recruit Morris to work Greece . Ebert contends that Olympiakos' then general manager, Liveratos, spoke directly to Morris by telephone but Ebert has not cited any evidence showing that either Morris or Liveratos was Texas during that telephone conversation . Ebert contends that after Morris told Liveratos that he would play basketball for Olymp iakos, Liveratos asked Morris address that Olympiakos could send something to him and that within days Morris received from Olympiakos, at his Texas residence, an itinerary and airline tickets Europe . But Ebert has not cited any evidence showing that before Morris spoke on the telephone with Liveratos and agreed to play basketball for Olympiakos, i .e ., when Olymp iakos recruited Morris through Morris' Massachusetts-based agents, that Olympiakos knew or had reason know that was recruiting a Texas resident . The facts this case are also distinguishable from other recruitment cases in which courts have found that the exercise of specific jurisdiction comports process . For example, the requirements of due Runnels v . TMSI ( 5th Cir. 1985), Contractors, Inc w Saudi Arabian limited partnership recruited the p laintiff, a Louisiana resident, come to work for in Saudi Arabia . The partnership had placed job advertisements in two Louisiana newspapers for approximately five years, and its resident agent in California had mailed sample and actual contracts the plaintiff at his home Louisiana . The plaintiff took the job and worked in Saudi Arabia for over a year before he was fired. The plaintiff b rought sit in Louisiana for wrongful discharge . - 40- concluding that Louisiana court could exercise personal jurisdiction over the Saudi Arabian partnership, the Fifth Circuit stated : Because TMSI Arabia solicited Louisiana residents through local advertising and through its agent, because its contacts with Louisiana were deliberate rather than fortuitous, and because it could reasonably foresee that contract disputes would likely arise as a result of its solicitation of United States citizens, it is not unfair to require that TMSI Arabia defend this suit in Louisiana . 764 F.2d at 423. See also Clark, Supp . at 1029-30 ( holding that court could exercise specific jurisdiction over nonresident entity that pu rposefully directed recruitment activities towards the state by advertising in local newspaper and conducting interviews in the state); Dotson v. Fluor Corpw 492 Supp . 313, 314-317 ( . Tex. 1980) ( W D. holding that the defendant purposefully availed itself by using an agent authorized to do business in Texas recruit Texas emp loyees work overseas by placing advertisements Texas newspaper); Gonsalez Moreno v . Milk Train, Incw Supp . zd ( .D. Tex. 2002) ( W finding jurisdiction where defendant contacted recruit Texas residents provided farm labor service migrant farm employment farm labor service terms and conditions employment, paid the farm labor service worker provided , hired plaintiffs as service's recruitment New York, fee each migrant result of the farm labor Texas, paid plaintiffs fare New York, and plaintiffs signed their employment contracts in Texas). For the reasons explained above , the court concludes that there no evidence from which the court can reasonably conclude even infer that when Olymp iakos recruited Morris had reason play basketball Greece, Olympiakos knew Morris was Texas resident such that Olympiakos purposefully availed itself of the p rivilege of doing business know that Texas could reasonab ly anticipate being haled into court there . Moreover, even the evidence were sufficient Morris play basketball in establish that by recruiting Greece, Olympiakos purposefully availed itself of the privilege of doing business Texas, the evidence would still not be sufficient for the court to exercise personal jurisdiction over Olympiakos because the evidence does not meet the requirement that the claims asserted in this action arise from or be connected with that act of recruitment. See Van Pelt v . Best Workover, 798 S. . 14, 16 ( W 2d Tex. App. E1 Paso, 1990, no writ) (' 'The recruitment Texas action from must arise not alone sufficient. The cause or be connected with that act recruitment.'). ' Claims Arising from Forum Contacts E ven Olymp iakos directly recruited Morris in Texas, the court may not exercise personal jurisdiction over Olympiakos unless the claims th is action arise out of or result from that act of recruitment . Van Pelt, S . .2d W - 42- Because Ebert has not presented any evidence showing the breach of contract and/or this action arise fraud claims alleged of result from which Morris spoke with Liveratos, from travel itinerary and airline tickets that Morris received from Olympiakos at Texas residence , the court has no reason to conclude that the exercise of specific jurisdiction over Olympiakos satisfies the due process requirements of the Fourteenth Amendment . ( A) Breach of Contract Plaintiff alleges : 18 . On August 31, 1999, Morris and Olympiakos entered into a written Agreement. 19 . Pursuant to the Agreementr Olymp iakos was to provide qualified medical assistance for Morris as well as to pay Morris for his basketball services . 20 . Olympiakos has breached the Agreement by failing to pay Morris and by failing to providg qualified medical e) assistance to Morris. 21. A s a direct and proximate result of Olymp iakos' breach of the written Agreement as described above, Morris has been damaged in an amount in excess of $1,000,000.00, exclusive of interest, costs, and attorney's fees .3 2 Olympiakos contends, and Ebert does not dispute , that the written contract the parties entered on August 1999, was executed by 3 zplaintiff's Original Complaint, Docket Entry No . %% 18-21. - 43- 3 the parties in Greece .33 that nE hlad Liveratos, While Morris states in his declaration not been for the E lulyq 1999 telephone call from have may signed the contract play CiXxv izkoS ,F3 Morris neither alleges nor argues that his b reach of ?4 contract claim is breach of an employment contract made during telephone conversation with Liveratos . Instead, the factual allegations contained in Plaintiff's Original Comp laint show that the contacts that Olympiakos had with Morris Texas were merely negotiations leading up to contract formation and that the breaches alleged in this action not arise from and were not connected Olympiakos' contacts with Morris Olympiakos' alleged failure Texas instead , from provide medical assistance injuries that Morris suffered while playing basketball Greece and from Olympiakos' unilateral termination of the contract without good cause in Greece .3 5 Morris' allegations establish that th@ breaches for which he sought relief are breaches a contract that was executed Greece over a month after he talked to Liveratos on the telephone 3 3see Contract , Exhibit A attached to Plaintiff's Original Aln Piraeus, August 31, complaint, Docket Entry No. 1, ( stating ' 1999 the undersigned : .'). ' M Declaration of Christopher Morris, Exhibit F attached Plaintiff's Memorandum in Opposition to Defendant's Motion Vacate Judgment, Docket Entry No. 36, p . 2 % 12 . M plaintiff's Original Complaint, Docket Entry No . 1, pp . %% 13-16. - 44- and received the travel itinerary and airline tickets in Texas, and that the acts Morris alleges constitute breaches occurred in Greece Texas . Because neither evidence nor argument has been presented that links the breaches telephone conversation that had with Liveratos or the travel itinerary and/or airline tickets that he received in Texas, the court concludes this action breach contract claims alleged not arise from and are not connected to Olympiakos' contacts with Texas . The breach of contract claim s at issue this case are distinguishable from the claims at issue in Garcia , 524 because the breaches during a telephone p laintiffs were Supp . at issue there arose from promises made to Texas which the migrant farm worker work recruited North Carolina . Here: plaintiff has neither alleged nor presented any evidence showing that the breaches at issue arose from p romises representations telephone conversation, Liveratos from p romises or representations that were made any of the documents delivered to Morris in Texas . The facts of this case are analogous court held involve those Van Pelt, S .W .2d which the when the defendant's only contacts with Texas recruitment activities, courts may jurisdiction only plaintiff's cause that act of recruitment . Id . at 16. - 45- exercise specific action stems from Merely contracting with a resident of the forum state does not sufficiently support the exercise of jurisdiction over a defendant. Icee Distributors, Inc . v . J&J Snack Foods Corp ., 325 F .3d 586, 591 ( 5th 2003) The Fifth Circuit consistently looked other factors surrounding the contract and its formation including, primarily, and performance and/or intended performance, place place subsequent breach . 591-92 . Id . F .3d Reliqious Technoloqv Center v. Liebreich , 2003), cert. denied, See also 1085 ( 2004) ( nln the specific jurisdiction rubric, only those acts which relate to the formation of the contract and the subsequent breach are relevant.'); Jones v. ' Pettv-Rav Geophvsical Geosource , Inc w cert. denied, 954 F .2d 1061, cont ract cases , ( 1992) place this Court has consistently looked contract with determine whether the making performance Texas resident contractual satisfy minimum sufficiently purposeful contacts.'); Barnstone v . Congregation Am Echad, ' 1978) ( I)t n( execution, the place of performance rather than consummation determination Ski Area, Inc., F .2d 286, delivery which should govern the g personal) jurisdiction .'); Kervin v . Red River ' Supp. 1383, 1389-90 ( . E D. Tex. 1989) ( nTn personam jurisprudence has taken restrictive view relationship between causes of action and contacts, seem ingly - 46- require virtually a direct link between claim and contacts in order to pursue a specific jurisdiction analysis./). ' Undisputed facts now before the court establish that even Morris was Liveratos, both Texas during parties the always telephone conversation intended Morris with p lay basketball in Greece , Morris moved to Greece to p lay basketball for Olympiakos, the contract issue was formed in Greece, the Greece , and none of breaches alleged the acts for which Morris seeks compensation occurred in Texas. These undisputed facts establish that the breach of contract claim s alleged in this action do not arise from and are not connected to Olumpiakos' contacts with Texas. Fraud Plaintiff alleges: 22 . Morris maintains that Olympiakos intentionally made false representations of material fact regarding its obligations and promises under the written Agreement between the parties . 23 . Morris maintains that Olympiakos intentionally made false representations of material fact to him regarding its obligations and promises under the written Agreement between the parties . 24 . Morris maintains that he reasonably relied on these misrepresentations, to his detriment . In particular, Morris states that, based on the misrepresentations of Olympiakos , he entered into a written Agreement and fu lly performed h is obligations under the Agreement, including the expenditure of time and money in providing his professional services to Olymp iakos . 25 . Morris maintains that the false representations made by Olympiakos were : made as to facts susceptib le of actual knowledge, with knowledge of their untruth or with reckless disregard of same ; b) promissory in nature, but made with a present intent not to comply therewith; and/or made in breach of Olympiakos' duty to exercise due care to reasonably determ ine that the representations made were true and accurate at the time made and that true and accurate statements were made to Morris . Morris further maintains that Olymp iakos m ade false, fraudulent, and/or malicious representations to him to induce him to execute the Agreement, and to perform his professional services . As a direct and proximate result of Olympiakos' intentional misrepresentations, Morris ha l been sq damage E in an amount in excess of $1,000,000.00, dq exclusive of interest, attorney's fees.3 6 costs, and reasonable The Fifth Circuit has held that ' wlhen the actual content of U communications with forum gives rise to intentional causes of action, this alone constitutes purposeful availment . defendant is purposefully availing himself causing consequence' Brandt, Texas .r' ' 208, Flowers Industries Inc w Athe privilege Wein A ir A laska , Inc . v . 1999). See also Brown v. 688 F. 2d 328, 332-34 ( 5th cert . denied , The ( 1983) ( holding that 1982), single defamatory phone call directed at a forum was sufficient to support 3 . at 3-4 %% 22-27. 6Id - 48- exercise personal jurisdiction); D. Investments v. Metzeler J. Motorcvcle Tire Aqent Greqq, Inc w 754 F.2d 542, 546-48 (5th Cir. 1985)( In claim tortious misrepresentation, the uminimum contacts' test allowing long-arm jurisdiction is satisfied when the ' misrepresentation occurred, in whole in part, Morris did not allege and Ebert does misrepresentations which Texas.). argue that the fraud claim s asserted action are based were made during the single telephone conversation Morris had with Liveratos. contained Plaintiff's Instead , the factual allegations Original Comp laint show that the misrepresentations at issue were made in the written agreement that the parties undisputedly entered in Greece August of 1999 over month after Morris spoke to Liveratos on the telephone . The undisputed facts of this case are distinguishable from the facts of Garcia, 524 Supp . at where the claims at issue arose from promises made during a telephone call to Texas in which the migrant farm worker plaintiffs were recruited work North Carolina , and are analogous to those of Van Pelt, 798 S . .2d at 14, where the W court held that when the defendant's only contacts with Texas involve recruitment jurisdiction activities, courts may exercise specific the plaintiff's cause of action stems from acts of recruitment. Id . Because Morris has not alleged, and Ebert has not submitted any evidence showing that the m isrepresentations which relief was sought in this action were made in Texas, the - 49- court concludes that Olympiakos lacks minimum contacts needed support the court's exercise of personal jurisdiction over it with respect to the fraud claims asserted here since those claims do arise from and not connected Olympiakos' contacts with Texa s . ( b) Fair Play and Substantial Justice Because the court has already concluded that there evidence from Olympiakos which recruited conclude Morris even play infer that when basketball Olympiakos purposefully availed itself Greecer privilege doing business in Texas such that Olymp iakos could reasonab ly anticipate being haled court there, that the claims breach contract and fraud that Morris alleged arise out of result from Olymp iakos' contacts with Texas, the court need determine whether the exercise notions jurisdiction would offend traditional fair play and substantial justice . Transportes Lar-Mex SA DE CV , 1996) ( nAs Felch failed See Felch v. F.3d 320, ( 5th establish sufficient ' minimum contacts' with Texas, we need not address whether the exercise of personal jurisdiction in this case would offend traditional notions of fair play and substantial justice .' /). But even if Morris' claims did arise out of Olympiakos' contacts with Texas, fair - 50- p lay and grant Olympiakos' substantial justice would require the motion to vacate . The primary goal of the due process clause as personal jurisdiction foreign defendants . fairness Schlobohm v. Schapiro, 784 S . .2d 355, W know that the an essential goal relates See ( Tex . 1999) ( uWe now test protect the Asahi metal Industries v . Suoerior Court of defendant./ '). California, 1026 ( 1987), the Court provided several factors that must be considered of personal jurisdiction determ ine whether the exercise reasonable . court must consider the burden on the defendant, the interests of plaintiff's interest ob taining relief . forum state , and the Id . Undisputed facts establish that any injuries Morris suffered were suffered in Greece not in Texas . Requiring Olympiakos, a Greek corporation, to defend this suit in Texas when its contacts with Texas were at best slight and not related to Morris' causes of action , would comport with traditional notions fair play and sub stantial ' Ju stice . E. Conclusions reasons explained above, court concludes that Olympiakos lacks minimum contacts with Texas needed to support the court's assertion either specific or jurisdiction, and that requiring Olympiakos, general personal Greek corporation, defend this suit in Texas would comport with traditional notions of fair play and substantial justice. IV . Conclusions and Order For the reasons explained Strike the Declaration $ II, above , Plaintiff's Motion Christos Stavropoulos ( Docket Entry DENIED . After carefu l consideration of the totality of circum stances, for the reasons exp lained in 5 court concludes that personal jurisdiction above, exist over Olympiakos when this action was filed , and that the exercise personal jurisdiction over Olympiakos would not be consistent with Constitutional requirements due process. Accordingly , KAE Olympiakos SFP'S Motion to Vacate Default Judgment ( Docket Entry No . GRANTED . SIGNED at Houston, Texas, on this the 30th da f June , 2010 . e SIM LAKE UNITED STATES DISTRICT JUDGE - 52-

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