Nexco Pharma Group of Companies v. Kalida. B.V. et al, No. 4:2013cv01723 - Document 18 (S.D. Tex. 2014)

Court Description: MEMORANDUM OPINION AND ORDER denying 9 MOTION to Dismiss under FRCP 12(b)(2) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION NEXCO PHARMA GROUP OF COMPANIES, § § Plaintiff, § § v. § § KALIDA, B.V., a Belgian § Corporationi DR. KENNY § DE MEIRLEIR, Individually; § CARINE ROSA JEAN DE MEIRLEIR§ MUYLDERMANS, IndividuallYi § § CHRISTOPHER ROELANT, "IndividuallYi ALEXIS BOGAERT, § IndividuallYi FRANK DECONINCK, § IndividuallYi JAN CABRI, § Individually; GERT VERBESSEM, § Individually; PHILIPPE § VAN VRECKEM, IndividuallYi MARC § FREMONT, IndividuallYi DANNY § COOMANS, IndividuallYi MONA § ELIASSEN, IndividuallYi PROTEA § BIOPHARMA, a Belgian Corporation,§ R.E.D. LABORATORIES, a Belgian § Corporationi BIORED, a Belgian § Corporationi HIMMUNITAS, a § Belgian Associationi DANIELLE § DE MEIRLEIR, IndividuallYi § KATHLEEN DE MEIRLEIR, § IndividuallYi and BNP PARIBAS § FORTIS, a Belgian Bank, § CIVIL ACTION NO. H-13-1723 § Defendants. § MEMORANDUM OPINION AND ORDER Pending before the court is Defendant Kenny De Meirleir's Motion to Dismiss Plaintiff's First Amended Complaint Pursuant to Federal Rule of Civil Procedure jurisdiction (Docket Entry No.9) 12 (b) (2) for lack of personal ("Motion to Dismiss"). Nexco Pharma Group of ("Nexco" ) Companies De Meirleir replied. 2 filed a response 1 and For the reasons stated below, the court will deny De Meirleir's Motion to Dismiss. I. Factual and Procedural Background Nexco filed suit against a number of defendants including De Meirleir alleging trademark infringement under the Lanham Act 15 u.S.c. §§ 1114, 1125, trademark dilution, breach of unfair competition, counterfeiting, and fraud. business organization. 3 Belgium. Nexco contract, Nexco is a Texas De Meirleir is a citizen and resident of alleges jurisdiction under 15 U.S.C that § the court has 1121 and 28 U.S.C. §§ subject-matter 1331, 1338(a). Nexco developed, owns, and distributes Nexavir Stock Solution Liquid ("Nexavir") 4 used for treatment of acute allergic reactions. 5 Nexco contends that De Meirleir negotiated the agreement between Nexco and Himmunitas that is the subj ect of this lawsuit and purchased approximately one thousand vials of Nexavir per month lPlaintiff's Response to Defendant, Kenny De Motion to Dismiss ( "Response") , Docket Entry No. 16. Meirleir's, 2Defendant Kenny De Meirleir's Reply in Support of Motion to Dismiss Plaintiff's First Amended Complaint Pursuant to 12(b) (2) ("Reply"), Docket Entry No. 17. 30 r iginal Complaint and Application for Temporary Restraining Order, Temporary Injunction and Permanent Injunction ("Plaintiff's Complaint"), Docket Entry No. I, p. 2. 4Declaration of Roger Sahni, Entry No. 16-1, p. 2 ~ 1. Exhibit A to Response, 5Plaintiff's Complaint, Docket Entry No. I, p. 7 -2- ~ 27. Docket from Nexco. 6 De Meirleir argues that the court does not have personal jurisdiction over him because Nexco has not established that De Meirleir had minimum contacts with Texas necessary to give rise to specific jurisdiction. 7 De Meirleir contends that he has only been to Texas two times, and "has never executed any contract with a Texas resident, nor has he ever provided any products or services in or into the State of Texas. lIS Nexco argues that De Meirleir contacted Nexco in Texas and negotiated a contract through e-mail and phone calls with Nexco's representative in Texas. 9 Nexco also contends that De Meirleir came to Texas to negotiate the deal himself. 10 II. Standard of Review When a foreign defendant moves to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b) (2), "the plaintiff bears the burden of establishing the district court's jurisdiction over the defendant." Group PLC, 313 F.3d 338, 343 marks omitted). Quick Technologies, Inc. v. Sage (5th Cir. 2002) (internal quotation "When the district court rules on a motion to dismiss for lack of personal jurisdiction without an evidentiary 6Plaintiff's Complaint, Docket Entry No. I, pp. 8-9 7Motion to Dismiss, Docket Entry No.9, p. 2. sId. at 4-5 ~ 8. 9Response, Docket Entry No. 16, p. 6 laId. at 10 ~ 26. -3- ~ 16. ~~ 29-30. hearing, the plaintiff may bear his burden by presenting a prima Id. facie case that personal jurisdiction is proper." quotation marks "In omitted) making its (internal determination, the district court may consider the contents of the record before the court at the time of the motion, including affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of quotation marks omitted). facts . discovery." Id. at 344 (internal "Absent any dispute as to the relevant whether personal jurisdiction may be exercised over a nonresident defendant is a question of law." Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 418 (5th Cir. 1993). For a court to have personal jurisdiction over a nonresident defendant (1) the state's long-arm statute must apply to that defendant, and (2) the requirements of federal due process must be satisfied. Electrosource, Inc. v. Horizon Battery Technologies, Ltd., 176F.3d867, 871 (5thCir. 1999). statute process, has interpreted to extend to the limits of due [the court] need only determine whether subjecting [the nonresident process been "Because Texas' long-arm defendant] clause of to suit in Texas the 14th Amendment." would offend the due The 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 "does not offend traditional notions of fair play -4 - and substantial justice." 154, 158 (1945) A. Int'l Shoe Co. v. Washington, 66 S. Ct. (internal quotation marks omitted) . Minimum Contacts and Specific Jurisdiction Minimum contacts can give rise to either specific or general Lewis v. personal jurisdiction. Cir. 2001).11 nonresident Fresne, 252 F.3d 352, Courts may exercise specific defendant if the plaintiff 358 (5th jurisdiction over a shows that (1) the nonresident defendant has minimum contacts with the forum state, i.e., that "it purposely directed its activities toward the forum state or purposefully availed conducting activities there," itself and (2) of the privileges of the plaintiff's cause of action arises out of or results from the nonresident defendant's contacts with the forum state. Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 271 (5th Cir. 2006) v. STORMAN ASIA M/V, 310 F.3d 374, 378 plaintiff satisfies these two elements, (quoting Nuovo Pignone, SpA (5th Cir. 2002)). If the "the burden shifts to the defendant to defeat jurisdiction by showing that its exercise would be unfair or unreasonable." defendant must have Id. purposely resident of the forum and, "For specific jurisdiction, the directed his activities the litigation must result at the from the alleged injuries that arise out of or relate to the defendant's 11Because the court concludes that it has specific jurisdiction over the defendant, the court will not address general jurisdiction. -5- activities directed at the forum." 5 F.3d 877, Rudzewicz, 884 (5th Cir. 1993) 105 S. Ct. 2174,2183 Coats v. Penrod Drilling Corp., (citing Burger King Corp. v. "The focus is on the (1985)). relationship between the defendant, the forum, and the litigation." Id. (citing Burger King, 105 S. Ct. at 2183). contact may confer jurisdiction./I Inc., 438 F.3d 465, 470 n.3 B. "A single purposeful Luv N' care, Ltd. v. Insta-Mix, (5th Cir. 2006). Traditional Notions of Fair Play and Substantial Justice In order to establish personal jurisdiction over a nonresident defendant the plaintiff must also show that the exercise of personal jurisdiction would not offend "traditional notions of fair play and substantial justice." Asahi Metal Indus. Co. v. Superior Court of California, 107 S. Ct. 1026, 1033 the reasonableness defendant, of the exercise of (1987) . In evaluating jurisdiction over the the court should consider several factors: (1) the burden on the defendant, (2) the interests of the forum state, (3) the plaintiff's interest in obtaining relief, (4) the interest of the interstate judicial system in obtaining the most efficient resolution of the controversy, and (5) the interest of the states in furthering substantive social policies. III. A. Id. Analysis Minimum Contacts Nexco argues that De Meirleir purposely activities towards Plaintiff, a Texas resident./l12 12Response, Docket Entry No. 16, p. 9 -6- ~ 25. "directed his Nexco submitted a Declaration from Roger Sahni, the President and Chief Executive Officer of Nexco, in which Sahni stated: 3. I was initially contacted at my registered electronic mail address for my Texas company by Kenny De Meirleir to inquire about NEXCO's product. In the course of negotiations, Mr. De Meirleir communicated with me regularly via electronic mail at NEXCO's registered business electronic mail address. Mr. De Meirleir made multiple phone calls to me at my Houston, Texas number. Further, Mr. De Meirleir personally visited Houston, Texas on multiple occasions for in-person negotiations of our agreement. These negotiations were conducted at the Houstonian Hotel, Club, and Spa, located at 111 North Post Oak Lane, Houston, Texas 77024.13 Nexco also submitted e-mail exchanges between Sahni and De Meirleir from May of 2005 through January of 2009. 14 In one e-mail De Meirleir introduced Sahni to De Meirleir's "business development person," Ken Schepmans, 15 and suggested meeting personally with Sahni in Houston, Texas: Dear Roger [SahniJ, Our business development person, Mr Ken Schepmans will contact you next week. It would be best that we travel to you to discuss details. Could you give us a one year exclusive dealership for Europe with option to extend if the operation is a success? Sincerely, Kenny De Meirleir 16 13Sahni Declaration, Ex. A to Response, Docket Entry No. 16-1, p. 2. 14E-mail communications, Exhibit A to Response, Docket Entry No. 16-1, pp. 4-44. 15Id. at 6. 16Id. -7- In these e-mails Sahni and De Meirleir discussed details related to their business venture and details about the payments, deliveries, and other tasks related to the business after the contract had been signed. 17 The facts alleged in Plaintiff's Complaint and in the Declaration of Roger Sahni easily satisfy the plaintiff's burden of establishing a prima facie case of personal jurisdiction over De Meirleir. B. Traditional Notions of Fair Play and Substantial Justice De Meirleir argues that "it would be an immense burden for the defendant to travel over 5,000 miles from Europe, which is also the location of all offices, documents, and witnesses, dispute of which he should not even be a party. 1118 to litigate a De Meirleir also contends that "Texas has little interest in this matter"19 and that there are no social policies that would be furthered by deciding this case Transport in Texas. 20 Corp., 322 In F.3d Central 376, Freight 384-85 Lines (5th Cir. Inc. v. APA 2003), the defendant argued that because it had limited contacts with the forum, and the products from their contract were delivered outside of Texas, exercising personal jurisdiction would be unfair and 17Id. at 27. 18Reply, Docket Entry No. 17, p. 6. 19Id. 2°Id. at 6-7. -8- unreasonable. Id. at 385-86. The Fifth Circuit held that reaching out to a Texas resident with the goal of establishing a long-term relationship with a Texas resident gave the defendant "fair warning" that it might be sued in Texas for an alleged breach of contract or other intentional torts. Id. at 386. The court also held that the plaintiff's breach of contract and intentional tort claims were sufficient to "satisfy Due Process concerns traditional notions of fair play and substantial justice." about Id. at 384-85. It was not unforeseeable that De Meirleir would be haled into a Texas court after purposefully availing himself to the forum via e-mail, telephone, business with and personal visits as part of a Nexco that included contract purchases pursuant to the agreement. course of negotiations and Texas has an interest in protecting a Texas resident in a breach of contract and intentional tort suit even though outside of the state. some of the parties' See id. at 384-86. dealings occurred The court concludes that exercising personal jurisdiction over De Meirleir does not offend traditional notions of fair play and substantial justice. IV. The court Conclusions and Order concludes that De Merleir purposefully availed himself to Texas and had sufficient contacts to establish specific jurisdiction over him. did not meet his The court also concludes that De Meirleir burden of showing -9- that exercising personal jurisdiction over him would offend traditional notions of fair play and substantial justice. Accordingly, Defendant Kenny De Meirleir's Motion to Dismiss Plaintiff's First Amended Complaint Pursuant to Federal Rule of Civil Procedure jurisdiction (Docket Entry No.9) 12 (b) (2) for lack of personal is DENIED. SIGNED at Houston, Texas, on this the 25th day of June, 2014. UNITED STATES DISTRICT JUDGE -10-