Sarkar v. Petroleum Company of Trinidad & Tobago Limited et al, No. 4:2015cv02372 - Document 21 (S.D. Tex. 2016)

Court Description: MEMORANDUM OPINION AND ORDER granting 13 Petroleum Company of Trinidad and Tobago Limited's MOTION to Dismiss 12 Amended Complaint ; granting 14 HRC Associates Limited's MOTION to Dismiss 12 Amended Complaint . (Signed by Judge Sim Lake) Parties notified.(gclair, 4)

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Sarkar v. Petroleum Company of Trinidad & Tobago Limited et al Doc. 21 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTR ICT OF TEXA S HOUSTON D IVISION June 23, 2016 David J. Bradley, Clerk SANJOY SARKAR , Plaintiff , CIV IL ACTION NO . H-15-2372 PETROLEUM COMPANY OF TRINIDAD & TOBAGO LIM ITED and HRC & ASSOCIATES MANAGEMENT CONSULTANTS , Defendants . MEMONANDUM OPINION AND ORDER Plaintiff Sanjoy Sarkar ( nsarkar' or uPlaintiff' brought this ' ') action against defendants Petroleum Company of Trinidad Tobago Limited (upetrotrin' and HRC Associates Limited ('HRC' ( ') ' ') together, uDefendants' on August ') 2015 .1 Pending before the court are Defendant Petroleum Company of Trinidad and Tobago Limited 's Motion Dismiss Sanjoy Sarkar's Amended Complaint and Supporting Memorandum of Law (npetrotrin's Motion to Dismiss' ( ') Docket Entry No . 13) and Defendant HRC Associates Limited's Motion to Dismiss Sanjoy Sarkar's Amended Complaint and Supporting Memorandum of Law ('HRC'S Motion to Dismiss' ( A ') Docket Entry No . l see Plaintiff Sanjoy Sarkar's Original Complaint ( uoriginal Complaint' , Docket Entry No. 1. o 2HRC was uincorrectly named as HRC & Associates Management Consultants .' See HRC'S Motion to Dismiss , Docket Entry No . 14 , ' p . 5. Dockets.Justia.com 1. Backqround Sarkar is an experienced executive working in the oil and gas industry and a United States citizen .3 Sarkar alleges the follow ing facts . Petrotrin is a limited liability company incorporated under the laws of the Republic of Trinidad and Tobago with its principal place of business The government owns and direction of the T & & T' ') Pointe-a-pierre , T & T .4 operates Ministries Petrotrin under Finance and the Energy x Petrotrin produces , refines, and sells petroleum products in the United States, Latin America , and other portions of the Caribbean , and uengages in hiring and recruiting employees , hiring of service providers, entry into joint ventures and securing financing from the United States firm based in HRC is a recruiting and consu ltant Petrotrin uses HRC as an agent to headhunt and recruit emp loyees from the Un ited States and other location s around the world .8 actively seeks AHRC, as an agent ' Americans for emp loyment behalf of Petrotrin , w ith principal 3 See Plaintiff Sanjoy Sarkar' Amended Complaint ( Amended s n Complai o , Docket Entr No. 12, p. 1 f 2. nt' y 4 see id. at 2 ! s see id . E see id. at 2 $ ' See id. at 2 r ' see id . at $ 8 $6 29-32. 8-9 T$ 32-33. Petrotrin including by visiting prospects in the United States , interviewing prospects , and negotiating employment packages while in the US .' Khalid Hassanali was President and Keith Ramnath was '9 Vice President of Petrotrin at the time of the events leading to this action. o l Hollick Rajkumar was and remains the managing director of HRC .1l Around October of 2014 HRC contacted Sarkar , and Sarkar interviewed for an executive level position w ith Petrotrin x z HRC originally contacted him for the CFO position at Petrotrinx 3 HRC contacted him again , and Sarkar app lied for and was offered the position of Vice President , Marketing , Trading and Business Development (' 'vice President Marketing' x 4 Petrotrin sent a draft o contract to Sarkar on December 10, 2014, while he was in the United states .l Both Defendants were aware that Sarkar was a U .S . s g ld. at T 32. lld. at 2 $T o lzd. at 2 j z f lsee id. at 3 ! z ( Neither is a party to this action . Rajkumar is not a party to this action. 9$ 1 lsee id. at 3-4 f 12; 9 f 36 ( 3 this contact was in the form of a public Linkedln advertisement on the internet to which Sarkar responded). Ronald Huff, also a Texas resident, was ultimately hired as CFO . See Amended Comp laint, Docket Entry No . l2, p . 5 $ 20. lsee Amended Complaint, Docket Entry No. 4 15; p. 9 ! 36. lsee id. at 4 $ s pp. 3-4 lî 12, citizen living in the U .S . at the time .l6 sarkar and Petrotrin engaged in negotiations via phone and email, and Sarkar signed the Contract of Service ( the uContract' in the United States on ') December 12, 2014 .1 Sarkar 's wife witnessed his signature x 8 7 The Contract commenced on January 19, 2015, and was for a four-year term , unless term inated earlier pursuant to the Contract termsx g The Contract stated that upon termination by Petrotrin for any reason except utermination for cause' as defined in Clause 21 ' of the Contract, Petrotrin would owe Plaintiff fifty percent of the remaining value of the monthly remuneration ( basic salary, traveling allowance , gratu ity , medical allowance , and housing allowance) due to the end of the contractual term (the uTermination Payment' z Unless it was terminated for cause, the Contract would 'l. D 1see id. at 4 $ 13. 6 lsee id. at 4 $ 16; 10 $ 37. Contract, Exhibit 1 to Amended 7 Complaint , Docket Entry No . 12-1, p . 4 . lsee Amended Complaint, Docket Entry No. 12, p. 10 f 37. 8 Contract, Exhib it 1 to Amended Complaint , Docket Entry No . 12-1, p . 4 . She is also a United States citizen and resides in Texas. lsee Amended Complaint, Docket Entry No. 12, p. 10 $ 38. But 9 see Contract, Exhibit 1 to Amended Complaint , Docket Entry No. 12-1, p. 1 $ 3 ( This Contract will commence on 2015 Ja u nuary 19 or such date granted as per Work Permit Approval. .' '). 2see Amended Complaint, Docket Entry No. l2, p. 10 $ 39; 0 Contract , Exhibit 1 to Amended Complaint, Docket Entry No . 12-1, p. 3 $ 2O. 'Termination for cause' is defined in Clause 21 of the ' ' Contract as one of the following acts or omissions committed by Sarkar: ( i) non-performance, ( ii) breach of fiduciary duty, ( iii) gross default or misconduct, (iv) an act of dishonesty, ( v) fraud or misrepresentation , or ( vi) breach of the terms and ( continued .- ) - 4- only term inate upon payment of the Term ination Payment x l Sarkar 's compensation is stated in terms of b0th T & T and U .S . dollars throughout the Contract .z z Petrotrin offered to pay As part of his compensation package, for Sarkar 's flights back to the Un ited States.2 3 The first numbered paragraph of the Contract states that uE ylour employment is contingent on you obtaining a Work Permit.'z 'd After the Contract was executed , Sarkar submitted supporting documentation for his work permit app lication and the of references uwh ile in the United States .'2S HRC 'S managing director , ' Hollick Rajkumar, told Sarkar verbally that the work permit process was a ' ' mere formality' for prospective employees of Petrotrin x 6 ' M l.- continued) conditions stipulated herein . See Contract, Exhib it 1 to Amended Compl nt, Docket Entry No. 12-1, p. 3 $ 21. ai 2See Amended Compl l aint, Docket Entr No. 12, p. 10 f 39; y Contract, Exhibit l to Amended Comp laint, Docket Entry No . 12-1, p. 3 $ 20. 2see Amended Complaint, Docket Entry No. 12, pp. 5-6 $ 10 2 ( citing Contract, Exhibit l to Amended Complaint, Docket Entry No. 12-1, pp. 1 fs 6, 8, 1O, 12, 13, 16). -2 2see id. at 7 j 26. 3 M contract, Exhibit to Amended Complaint , Docket Entry No. 12-1, p. l î 1. 2see Amended Complaint, Docket Entry No. 12, p. 4 î l7. 5 2see id. at 13 ! 50. In a December 29, 2014, email Rajkumar 6 stated that the work perm it would be taken care of that week and that uthere was no need to worry .' This email is not attached to ' ( continued.- ) There were delay s in processing the application , but during this time Mr . Hu ff, a United States citizen residing in Texas and the person Petrotrin hired for the Texas .2 7 position , met w ith Sarkar Petrotrin also arranged two trips to & T for Sarkar, including a trip with his fami1y .28 Sarkar alleges that contract commenced on January 2015, and he was available to work from that date , communicating the same to Defendants .zg Sarkar followed up with Petrotrin for days before and after that date, requesting details on his and his fam ily 's move to On January and an update on his work permit status .3o 2015 , Sarkar emailed Petrotrin to ask if he could commence working for Petrotrin in the U .S . and T & T while his work permit application was pending .3l As an amendment to the Contract, Petrotrin 's president agreed by email that Sarkar could begin working on a uconsultant' basis .3 ' 2 However , Petrotrin 's Vice z 6to- continued) the Amended Comp laint or Sarkar 's other p leadings . 124 , infra . See footnote 2See Amended Compl nt, Docket Entry No. 12, p. 5 $ 20. Huff 7 ai allegedly 'advised Mr . Sarkar on possible ways forward with the ' pending work permit issues' and told Sarkar that nhis position ( ' if not his name) had been mentioned in various road show presentations made by Petrotrin to financial institutions at this time .' ' 2see id. at 8 $ 2l. 2see id. at 10-11 $$ 41-43. 9 Bsee id. at o 3see id . at l ! 42. ! 35; T 32 see id . - 6- president withdrew the amendment via email dated January 14 , 2015, while the work permit was under consideration .33 On January Hassanali notified Sarkar in writing that the Ministry of National Security of T & T had not issued Sarkar a work permit 'purportedly after its meeting on or about January 23 , 2015, ' and accordingly this condition of the Contract could not be attained ( and thus enforcement of the Contract was not possiblel.'3 '4 The letter stated 'for the ' ' avoidance of doubt', that E petrotrin) had unilaterally discharged the Contract and released the parties from their obligations thereunder .' s '3 After terminating the Contract , Petrotrin refused to pay the Term ination Payment, contending that the failure to obtain a work permit resulted in an unenforceable Contract .36 Sarkar alleges that Petrotrin is required to pay him the Term ination Payment in order to terminate the Contract, since none of the enumerated for-cause termination situations occurred .3 ? sarkar also alleges that Defendants failed to follow the proper work permit app lication process because they did not advertise in local T & T newspapers or conduct a full public solicitation .3 8 Hsee i 2 ! d. 3see id. at 4 11 $ 44. f 45. 35 see id . 3see id. at 11-12 !! 46-49. E 3see id. at 11-12 $ 46. 7 3see id. at 13 f 51. 8 In the recruiting agreement between HRC and Petrotrin , HRC was responsible for , among other things, placing advertisements in local newspapers .3g HRC 'S managing director admitted in an email that it failed to advertise Sarkar 's position because it had mistakenly assumed that an earlier advertisement for the CFO position would be sufficient .4o Petrotrin asked HRC to send a letter addressing this issue , but it appears HRC failed to take corrective action . o to follow Due to Defendants failure lwell-estab lished protocol , the M inistry of National ' Security appears to have turned down Petrotrin 's application for a work permit initially for ( Sarkar1.'4 '2 Later , HRC told Sarkar that Petrotrin 's board had requested that Mr . Ramnath reapply for Sarkar 's work perm it, but Petrotrin changed its mind again and refused b0th to correct its initial app lication and to lodge a fresh app lication .o Petrotrin also refused Sarkar 's offer to work as a consultant or remotely from Houston wh ile the work permit process was ongoing .6 Sarkar alleges 4 39ïd . 4 I at 13 f 52. Sarkar had als a 0 d. o pplie for t CFO position. d he Id . 4l . nOstensibly , HRC and Petrotrin 's failure to place the Id advertisement was the reason that the M inistry did not approve the work permit for Plaintiff.' Id. ! 53. ' 4see id. at 14 $ 54. 2 4see id. j 55. 3 r 4 4see id . that the work -permit issue is a pretext ufor not going forward with E sarkar/s) employment .r s '4 Sarkar filed his Original Complaint on August 2 O15 .4 At 6 the initial scheduling conference Sarkar was given leave to amend , and the parties were directed complete discovery on jurisdictional issues by March 4, 2016. 7 Sarkar filed his Amended 4 Comp laint on March 2016 , asserting a cla im for breach of contract against Petrotrin and claims for negligence and negligent misrepresentation against 50th Defendants x s Defendants filed the two motions to dismiss on April 20 16 .69 II . Obiections to Defendants ' Declarations Filed in Support of the Motions to Dismiss Sarkar objects three declarations filed support of Defendants' motions: ( Declaration of Radica Maraj Adharsingh in 1) Support of Defendants Petroleum Company of Trinidad and Tobago Limited and HRC Associates Limited 's Motions to Dism iss 4see id. $ 56. Sarkar's theory is that the drastic drop in 5 the price of crude oi1 around the time of his start date caused Petrotri t need to qui n o ckly cut e xpenses. Id. $ 57. As of the date of filing , no one had been hired for the position . See id . at 15 $ 58. 4 original Complaint, Docket Entry No . 6 4 see Minutes and Order for December 18, 2015 , Hearing , Docket 7 Entry No . 11 . 48 see Amended Comp laint , Docket Entry No . pp . 15-20 . Opetrotrin 's Motion to Dismiss, Docket Entry Motion to Dismiss , Docket Entry No . 14 . HRC'S ( uAdharsingh Declaration' o 'lis Declaration of Ronald Huff in support of Defendant Petroleum Company of Trinidad and Tobago Limited's Motion to Dismiss (uHuff Declaration/ is o l and ( Declaration of Hollick Rajkumar in Support of Defendant HRC 3) o s Associates Limited's Motion to Dismiss (uRajkumar Declaration' . z Sarkar moves to strike the declarations because they are not in compliance w ith 1746 , or, alternatively , because 28 U .S .C . portions of the declarations are otherwise inadm issible under the Federal Rules of Evidence x 3 O Exhibit A to Petrotrin 's Motion to D ismiss, Docket Entry No . 13-2 7 Exhibit B to HRC 'S Motion to Dismiss, Docket Entry N o . 14 -3 . s Exhibit B to Petrotrin 's Motion to Dismiss, Docket Entry l N o . 13 -3 . H Exhibit A to HRC 'S Motion to Dism iss , Docket Entry No . 14-2 . 5see Plaintiff's Objections to Defendants' Declarations Filed 3 in Support of Their Motions to Dismiss CA plaintiff's Objections' , o Docket Entry No. 15. 28 U . C . 5 1746(1) provides: S. Wherever , under any 1aw of the United States . any matter is required or permitted to be supported . . . by the sworn declaration . . in writing of the person making the same . such matter may , with like force and effect , be supported . . . by the unsworn declaration . . . in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form : ( 1) If executed without the United States: 'I ' declare ( or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on ( date). ( Signaturel' '. - 10 - A. Compliance W ith 28 U .S .C . 5 1746 The originally subm itted declarations state : 'l declare under ' penalty of perjury that the foregoing best of my knowledge and belief.' 4 '5 true and correct to the Defendants contend that this satisfies the nsubstantially in the following form ' requirement ' the statute xs Nonetheless, Defendants have submitted declarations that quote 28 U.S. . 5 l746 ( C l)'s language and are otherwise identical to the originally subm itted declarations, mooting Sarkar's first objectionx6 B. Sarkar's Other Objections Sarkar objects to portions of the declarations on the following grounds: statements , hearsay lack personal statements , and knowledge, conclusory imperm issible expert 5 4see Adharsingh Declaration, Exhibit A to Petrotrin 's Motion to Dismiss, Docket Entry No. 13-2, p. 6 ! 23; Huff Declaration, Exhibit B to Petrotrin 's Motion to Dismiss, Docket Entry No . 13-3 p. 3 $ 87 Rajkumar Declaration, Exhi bit A to HRC' Moti S on t o Dismiss, Docket Entry No. 14-2, p. 6 $ 23. 5 5see Defendants Petroleum Company of Trinidad and Tobago Limited and HRC Associates Limited 's Response to Plaintiff's Objections to and Motion to Strike Declarations filed in Support of Defendants' Motion to Dismiss, Docket Entry No . 20 . 5 6see Exhibit F to Defendant Petroleum Company of Trinidad and Tobago Limited's Reply in Support of Its Motion to Dismiss Sanjoy Sarkar's Amended Complaint (upetrotrin's Reply in Support' Docket ') Entry No . 18-27 Exhibit G to Petrotrin 's Reply in Support, Docket Entry No . 18-3 ; Exhibit C to Defendant HRC Associates Lim ited 's Reply in Support of Its Motion to Dismiss Sanjoy Sarkar's Amended Complaint C% HRC'S Reply in Support' , Docket Entry No. 19-2; o Exhibit D to HRC 'S Reply in Support , Docket Entry No . 19-3 . - 11 - testimony .sR To the extent that the declarations contain statements based on 'information and belief' that are inadmissible because ' ' they are not based on personal knowledge or because they contain hearsay , the court has not relied on those statements .s' Other objections are to statements that are irrelevant to the bases of the court 's decision .s For example , Sarkar makes several g objections to inadmissible expert testimony in Adharsingh's Declaration, but these statements on the judicial system of pertain to the forum non conveniens arguments, which the court does not reach .6 o To the extent the declarations contain otherwise 5see Plaintiff's Objections, Docket Entry No. l5, pp. 2-3 R ( citing Federal Rules of Evidence 602, 40l and 701, 801 and 802, and 702, respectively). 5see id. at 3. Rajkumar is the founder and Managing Director 8 of HRC and based his declaration upon personal knowledge and a review of HRC'S business records. See Rajkumar Declaration, Exhibit A to HRC 'S Motion to Dismiss, Docket Entry No . 14 -2 , p . 2 $ 1. Adharsingh is Seni Manager, Law and Land Manageme for or nt Petrotrin . See Adharsingh Declaration , Exhibit A to Petrotrin 's Motion to Dismiss, Docket Entry No. 13-2, p. 2 ! 1. She is licensed to practice law in T & T and has been practicing there for 24 years , and describes her role at Petrotrin as 'directing ' Petrotrin in its legal affairs and comp liance matters.' Id . Her ' declaration is based upon upersonal knowledge and a review of Petrotrin 's bu siness records .' Id . Sarkar does not contest either ' declarant's role at the respective companies . Hearsay statements are admissib le if they fall into a recognized exception category , such as records of a regularly conducted activity . See Fed . R . Evid. 803(6); Morris v . B . Olympiakos, SFP, 721 F. Supp. 2d 546, C. 550-52 ( D . Tex . 2010). S. Osarkar objects to Adharsingh's 'misstatements' of the ' ' Trinidad & Tobago Employment Act and the Contract , but both are attached to the pleadings and available for the court to review without relying on Adharsingh 's Declaration . See Plaintiff's Objections, Docket Entry No. 15, p. 3. 6 See Adharsingh Declaration , Exhibit A to Petrotrin 's Motion O to Dismiss, Docket Entry No . 13-2 , p . 4 ST 11-13. impermissible or inadmissible material, the court has not relied on them in reaching its decision .6l 111 . Petrotrin's Motion to Dismiss Petrotrin argues that the court should dism iss the Amended Complaint because Petrotrin is immune from suit under the Foreign Sovereign Immunities Act ('FSIA' N '), 28 U . . S C. 5 1602, qt seg. 2 6 Sarkar responds that the court has jurisdiction under the FSI A because Petrotrin implicitly waived sovereign immun ity and because the ïcommercial activity' excep tion to immunity app lies .6 ' ' 3 A. Standard of Review Foreign states and their agencies and instrumentalities are immune from suit in the courts the United States except as Esome of the objections are to paragraphs containing largely l uncontested facts. For instance, Sarkar objects to statements prefaced with the phrase nupon information and belief,' but one ' such statement is that uon or around November 2014 , Sarkar engaged in discussions w ith HRC regarding potential employment as Petrotrin's E vice Declaration , Exhibit President No. 13-2, p. 3 f 5. A to Marketingl.' ' Petrotrin 's See Motion, Adharsingh Docket Entry Sarkar alleges that 'Petrotrin and HRC actively recruited Sarkar in Houston , Texas in order to enter into an employment contract in late 2014 w ith Petrotrin .' ' Amended Complaint, Docket Entry No. 12, p. 3 $ 12. H petrotrin 's Motion to Dismiss , Docket Entry No . l3# pp . 11-20. A lternatively , Petrotrin argues that the court should dismiss the Amended Complaint in favor of adjudication in T & T pursuant to the doctrine of forum non conveniens . Id . at 20-29 . Because the court concludes that dism issal is requ ired by the FSIA , it does not reach Petrotrin 's alternative argument . 63 see Plaintiff's Response to Defendant Petroleum Company of Trinidad & Tobago Limited's Motion to Dismiss CA plaintiff's Response to Petrotrin's Motion' , Docket Entry No. 17, pp. 4, 9-18. o otherwise prov ided in the FSIA . See 28 U .S .C . 5 1604 ; Walter Fuller A ircraft Sales , Inc . v . Rerublic of Ph ilippines, 965 F .2d 1375, 1383 ( 5th Cir. 1992); Saudi Arabia v . Nelson, 1l3 S . Ct. 1471, 1476 ( 1993) (nunder the Act, a foreign state is presumptively immune from the jurisdiction of United States courts; unless a specified exception applies, a federal court lacks subjectmatter jurisdiction over a claim against a foreign state.o . The FSIA ' provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country . Sachs, OBB Personenverkehr AG v . ( 2015) ( quotations omitted) ( citing Arqentine Republic v . Amerada Hess Shipp inq Corp w 109 693 ( 1989)) 683 , ' B)oth statutory subject matter jurisdiction 'E and personal jurisdiction turn on application of the substantive provisions of the E FSIAI.' ' Verlinden B . . v . Central Bank of V Niqeria, l03 1962, 1967 n.5 ( 1983). 4 6 The party claiming FSIA immunity has the ultimate burden persuasion . In re 8-727 Aircraft, 272 F. at 271 ( 3d citing Kellv v . Syria Shell Petroàeum Deveàopment B . ., V F.3d 841, 847 ( 5th 6 Under 28 U.S. 4 C. 5 l33O ( a), federal district courts have subject matter jurisdiction if a foreign state is N not entitled to '% immunity either under sections 1605-1607 . . . or under any app licab le international agreement .'' See Verlinden , 103 S . Ct . at ' 1967 n.5. Personal jurisdiction exists under 5 l330( wherever b) subject matter jurisdiction exists under subsection ( and service a) of process has been made under 5 1608 of the FSIA . Id . 'Thus, if ' none of the exceptions to sovereign immunity set forth in the Act applies, the District Court lacks b0th statutory subject matter jurisdiction and personal jurisdiction.' Id.; see also In re 8-727 ' Aircraft Serial No. 21010, 272 F. 264, 270 ( 3d 5th Cir . 2001). - 14- Cir .), cert. denied, 121 S. ( 2000)). However, the party claiming immunity need only present a prima facie case that it is a foreign state . Id . Once it does , the burden shifts to the party opposing immun ity to present evidence that an exception to immunity applies . Id .; see Walter Fuller , 965 F .2d at 1383 . Sarkar concedes that Petrotrin is an agency or instrumentality of a foreign state within the meaning of the FSIA .6 5 5 1603 ( a), ( b). See 28 U .S .C . In determining whether an exception applies, a district court may rely on the p leadings and consider conflicting evidence - contained in affidavits , for example - and make its own resolution of disputed jurisdictional facts in determining whether has subject matter jurisdiction. See Forsythe v. Saudi Arabian Airlines Corp w 885 F. 2d 285, 289 n.6 ( 5th Cir. 1989) ( citing Williamson v . Tucker, 645 F.2d 404, ( 5th Cir.), cert. denied, ( 1981)). B. Waiver B foreign state shall not be immune from the jurisdiction of A courts of the United States or of the States any case in which the foreign state has waived its immunity either explicitly or by implication 28 5 16O5 ( a)(1). Although the Contract does not contain an exp licit waiver , Sarkar argues that Petrotrin ' 'implicitly waived its claim to sovereign immunity on the 6see Amended Complaint, Docket Entry No. 12, p. 2 $ 5 basis that it agreed to apply US laws the Contract E. ' 6 sarkar l'6 argues that the Contract ob ligates Sarkar to comply with U .S . tax laws in his employment in gross-up and Petrotrin uagreed to pay a for compensation Sarkar was requ ired to pay additional taxes in the United States arising from his taxation under the laws of T&T in relation to the agreement .' 7 '6 Imp licit waiver is narrowly construed , and ucourts rarely find that a nation has waived its sovereign immunity without strong evidence that this is what the foreign state intended .' Rodriguez ' v . Transnave Inc w 8 F.3d 284, 287 ( 5th Cir. 1993). n The leg islative h istory of the FSIA states that imp licit waivers are ordinarily found in three situations : to arb itration in another country ; a foreign state agrees the foreign state agrees that a contract is governed by the laws of a particular country ; or the state files a responsive pleading without raising the immunity defense.' Id. ( ' citations omitted). Courts are reluctant to stray beyond these three examp les when considering claims that a nation has exp licitly waived its sovereign immunity defense . Id . ( citing Frolova v . Union of Soviet Socialist Republics, 76l F.2d 370, 377 ( 7th Cir. 1985)); see also UNC Lear Services, Inc. v . Kinqdom of Saudi Arabia, Supp . 2d 800, 802-03 ( . . Tex. W D 6 see Plaintiff's Response to Petrotrin 's Motion , Docket Entry 6 l7, p . 17 . 6 7see id . at l8 . 2010) Courts urarely find that a nation has waived its sovereign immunity without strong evidence that this is what the foreign state intended.' Rodriguez, 8 F.3d at 287 ( ' citation omitted) The Contract does not contain an arbitration agreement . Contract states that is governed by the laws of The & Petrotrin has not filed any responsive pleadings without raising immunity defense . Therefore, none o f three recognized imp licit waiver situations exists here . The Contract paragraph Sarkar relies on states in full : You are required to comply with the Tax Laws of Trin idad and Tobago and the United States of America . Shou ld you be required to pay additional taxes in the United States arising from your taxation under Trinidad and Tobago Laws in relation to this contract , the Company shall pay to you such additional amount .6 9 Sarkar argues, uE hile it is true the obligation is primarily w) placed on Sarkar, by v irtue of the comp liance requirements, Petrotrin itself contractually agreed to cooperate in good faith to allow Sarkar to comply with US laws A reference to an American citizen 's obligation to comply with United States tax laws in a contract exp licitly governed by the laws of another country does not fit the narrow ly construed lim its E 8uThis letter-agreement w ill be interpreted and take effect in accordance w ith the laws of Trinidad and Tobago .' Contract , ' Exhibit 1 to Amended Complaint, Docket Entry No . 12-1, p . 3 . 6see id. at 2 $ 7. 9 7 See Plaintiff's Response to Petrotrin 's Motion , Docket Entry D No . l7, p . l8 . of the implied waiver clause of 5 16O5 ( 1). a)( Mendenhall v . Saudi Aramco, F . Supp . the plaintiff argued that Saudi Aramco For example, 858 ( D . Tex. 1998), S. implicitly waived its sovereign immunity because of its extensive business dealings in the United States, participation in ERISA , its subm ission to the tax authority of the United States, and its employment of American educated Saudi Arabian citizens and American citizens . The court held that the plaintiff 's argument had 'no basis in 1aw ' when viewed in light of authority regarding waiver under the FSIA .' ' Id . 7l usimply put , business dealings w ith in the Un ited States , at least to the extent alleged by Plaintiff, do not implicitly waive sovereign immunity .' ' Id .; see also Good v . Aramco Services Co ., Supp . 254, ( D . Tex. 1997) (nplaintiffs do not argue S. that one of the three examp les in the legislative history applies here . Rather, implicitly waived E plaintiffs) contend that Saudi Aramco has the immunity by including in its Articles provisions for representation of officers and directors in lawsuits brought against indemnification lawsuits . them in their official capacity and for expen ses incurred by them by reason of such Such provisions are not inconsistent with sovereign Hciting as examples : Shapiro v . Repub lic of Bolivia , 930 F .2d 1013, 1017 ( 2d Cir . 1991)) Foremost-McKesson , Inc. v . Islamic Republic of Iran, 9O5 F. 2d 438, 444 ( D.C. Cir. 1990); Joseph v . Office of the Consulate General of Nigeria , 83O F .2d 1018, 1022-23 ( 9th Cir. 1987); Frolova, 761 F. at 377. 2d - 18 - immunity . There is no provision in the Articles expressly stating that Saudi Aramco is subject to suit in the United States.' . o Sarkar has not presented ustrong evidence' that Petrotrin ' intended to waive sovereign immunity , especially since Contract is expressly governed by T & T law X2 See Af-cap , Inc. v . Republic of Congo, F. 3d 426-27 2006) this Court wanted to go outside of the three ordinary circumstances, it must still 'narrowly 5 1605( 1) a)( construe ' the implicit waiver clause In the case at hand, there no evidence, and certainly no strong evidence, that the Congo implicitly waived immunity to suit in Texas.' ( ' citation omittedl); In re Tamimi, l76 F. 3d ( 4th Cir. 1999) ( citing Rodriquez, 8 F.3d at 287). The court concludes that Petrotrin did not imp licitly waive its sovereign immunity . C. Commercial Activity 'The ' FSIA sufficiently identifies connected to three the types United of States acts to which are satisfy the jurisdictional nexus requirement to the commercial activities exception l.l' Stena Rederi AB v . Comision de Contratos del Comite ' Ejecutivo General de1 Sindicato Revolucionario de Trabanadores ' Petroleros de la Republica Mexicana, S. ., 923 F.2d 380, 386 ( C 5th Cir . 1991). A foreign state shall not be immune from the Hsimilarly , simu ltaneously listing Sarkar 's compensation in terms of T & T and U .S . dollars does not indicate implicit consent to jurisdiction in Texas. - 1 9- jurisdiction of courts of the United States or of the States in any case in which the action is based : upon a commercial activity carried on in the United States by the foreign state ; or an act performed the United States connection upon with a commercial activity of the foreign state elsewhere; or ( upon an 3) act outside the territory of the United States in connection with a commercial activ ity of the foreign state elsewhere and that act causes a direct effect in the United States E.qR 3 See 28 U . C. S. 5 1605 ( ( ); OBB Personenverkehr AG, l36 S . Ct . at 394 a) 2 nAcommercial activ ity ' means either a regular course of commercial conduct a particu lar commercial transaction or act . commercial character determined an activity shall be The reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose .' ' U. S.C. 5 16O3 ( d); see Republic of Arqentina v . Weltover, Incw 2160, 2165-67 ( 1992). uIn order to decide whether the commercial activity exception app lies , first , the relevant activity must be identified . Second, the court must determine if the relevant activ ity is sovereign or commercial . Finally , if the relevant activity is commercial in nature , the court must determ ine whether it had pursuant the requisite jurisdictional nexus with the United States ( Osarkar argues that each of the commercial activities upon which his claims are based 'comports with 2 ( not 3) of the ' if prongs of the commercial activity exception . . . .' Plaintiff's ' Response to Petrotrin 's Motion , Docket Entry No . 17, pp . 12-13. to 5 l6O5 ( ( a) 2)) .' ' CanAm International, LLC v . Republic of Trinidad and Tobago, App'x ( 5th 2006) ( unpublished). Since Petrotrin does not dispute that its relevant conduct constitutes ncommercial activity z'R4 the court 's analysis ' will focus on the acts that form the basis of Sarkar 's claims and whether those acts have a sufficient jurisdictional nexus. The court begins by identifying the particular conduct on which the p laintiff 's action is based . See OBB Personenverkehr AG , at 395 ( quoting Nelson, at 1477) The ' Supreme Court has rejected a 'one-element test' that wou ld require ' na court to identify a;2 the elements of each claim in a complaint before that court may reject those claims for falling outside 5 16O5( ( a) 2).' Id. at 396. ' T)he mere fact that the ( ' '( defendant's act) would establish a single element of a claim is insufficient to demonstrate that the claim is ' based upon' that ( act) for purposes of 1605( 2).' a)( ' core of the suit Id. at the foreign sovereign 's acts that actually injured the plaintiff cause of action . Thus, a court must focus on the rather than individually analyzing each Id . at 396 . A foreign sovereign udoes not abrogate its sovereign immunity simp ly because conducts commercial operations connection with the United States . that have a Not only must there be a jurisdictional nexus between the United States and the commercial ? 4see Petrotrin 's Motion to D ismiss, Docket Entry No . 13 acts of the foreign sovereign , there must be a connection between the plaintiff's cause action and the commercial acts of the foreign sovereign .' Stena Rederi AB, 923 F.2d at 386-87 ( ' citations omitted). UE he connection between the cau se of action and the T) sovereign 's commercial acts in the United States must be material . Isolated or unrelated commercial actions by a foreign sovereign in the United States are insufficient to support activities exception to sovereign immunity .' ' a commercial Id . at 387 . Sarkar asserts breach of contract , negligent misrepresentation, and negligence claims against Petrotrin . Sarkar contends that the comm ercial activities upon which his claims are based are : failure to make the termination payment required under the Contract Sarkar his bank account , which had direct effect in the United States much like the payment obligation in the Weltover decision; and ( 2) the actions related to recruitment, hiring , negotiation , and emp loyment taken by the Defendants and Plaintiff that occurred in the US and that related to commercial acti ty in the US and/ T& as more f y specified in ( 11-26, vi or T ull $$ 28 of the Amended Complaintl.' s '7 Petrotrin argues that the 'gravamen' of Sarkar 's claims is that Defendants failed to properly ' ' seek a work perm it for Sarkar , nacts that took p lace wholly outside the United States .' 'R6 7 see Plaintiff 's Response to Petrotrin 's Motion , Docket Entry 5 No . 17, p . 13 . 7 See Petrotrin 's Motion to Dismiss, Docket Entry No . 6 pp . 13-14 . sarkar 's claims are based upon Petrotrin 's acts7 7 seeking to hire him for the Vice President Marketing position and the negotiations and communications between Sarkar and Petrotrin, including communications regarding the work perm it application process and status . However , the court will not consider nl ilsolated or unrelated commercial actions of a foreign sovereign in the United States,' which ' are ninsufficient to support a commercial activities exception to sovereign immunity .' ' Rederi AB, 923 F . 2d at 387 ( citations omitted) Stena Not al1 of the facts alleged in the Amended Complaint have a material connection to Sarkar 's claims . The fact that Petrotrin sells petroleum products United States ( or enters into joint ventures here financing here) irrelevant to Sarkar's claims. the secures See, e. q., United States v . Moats, 961 F . 1198, 1205 ( 2d 5th Cir . 1992) (' Tlhe 'l fact that Pemex routinely carries on some portion exploration and production activities in the Un ited States is not enough to support jurisdiction. Rather, this :awsuït must be based on commercial activities that are connected to the United States in the manner described by the statute.' ( ' citation omittedl); see also Stena Rederi AB , 923 F .2d at 387 . Likewise , this action is not ? ?petrotrin argues that Sarkar did not establish that HRC acted as Petrotrin 's agent . see id . at 18 . The Amended Complaint generally alleges that HRC was Petrotrin 's agent . See Docket Entry No. 12, p. 2 $ 47 p. 3 î lO. Sarkar does not address Petrotrin's argument . Assuming , without deciding , that HRC acted as Petrotrin 's agent in engaging sarkar, the outcome is not different . - 23 - based upon Petrotrin or HRC 'S actions in recruiting for the CFO position because that has no connection to the causes of action p leaded . See Moats, F. 2d at 1205-06 ( refusing to consider activities connected to the original contracts in a suit for the breach of a settlement agreement). Sarkar 's claims are not based on Sarkar 's Texas dinner with Ronald Huff, who met with Sarkar before Huff began working for Petrotrin in T & T as CFO X 8 A lthough Hu ff had already been hired by Petrotrin , Sarkar does not allege that this conversation was authorized by Petrotrin or that Huff was acting as Petrotrin 's agent. g see Dale v . Colaqiovanni, 443 F.3d 425, 428-29 ( 7 5th Cir. 2006) ( holding an agent acting only with apparent authority is uinsufficient to trigger the commercial activity ex ception' because ' the commercial activity must be that the foreign stater '); Allfreiqht Worldwide Carqo, Inc . v . Ethiorian A irlines Enterrrise, 3O7 F. App' x 724-25 2009). 0 8 78 see Hu ff Declaration , Exhibit B to Petrotrin 's Motion to Dismiss, Docket Entry No. 13- pp. 2-3 f! 3, 6. The fact that 3, Rajkumar met with Huff on a trip to Texas for Rajkumar's cancer treatment and discussed the CFO position is also not material to Sarkar's claims . See Amended Comp laint, Docket Entry No . l2 , p . 5 ! 19; Rajkumar Declaration, Exhibit A to HRC' Moti to Dis S on miss, Docket Entry No. 14-2, p. 5 f! 17-18. 79 see Huff Declaration , Exhibit B to Petrotrin 's Motion to Dismiss, Docket Entry No. 13-3, p. 3 f 7; see also Adharsingh Declaration , Exhibit A to Petrotrin 's Motion to Dismiss, Docket Entry No. 13-2, p. 4 ! l0. An HRC employee sent an email introducing Sarkar to Huff as the incom ing Vice President Marketing and Huff to Sarkar as the incoming CFO . See Exhib it 8 to Plaintiff's Response to Petrotrin 's Motion , Docket Entry No . 17-8 , p . 2 . 'D sarkar does not otherwise allege that anyone from Petrotrin or HRC met with him in Texas . See Soudavar v . Islamic Repub lic of ( continued- .) - 24- Next , the court must decide whether a nsubstantial connection' ' exists between the relevant commercial activ ity by Petrotrin and the United States . at 1477 . make the See Can-Am , 169 App 'x at 4057 Nelson , Sarkar first argues that Petrotrin 's failure to Termination Payment has a direct effect on the United States , although based on commercial activ ity outside of the United States, under the third clause of 28 U.S. . 5 l605( 2). 1 C a)( 8 Sarkar relies on Weltover , 2160 , and Voest-Alp ine Trading USA Corp . v . Bank of China , 142 F.3d 887 ( 5th Cir. 1998). Weltover, 1l2 S . 2163-64 , creditors issued Argentinian government bonds that were be paid U .S . dollars through transfer on the London , Frankfurt, Zurich , or New York market at the election of the creditor . When Argentina failed to pay as required and attempted to unilaterally reschedule the maturity dates on the bonds , the bondholders sued for breach of contract in the Southern District of New York . Id . Because the plaintiffs relied on the third clause of 5 l605( 2), the Court considered a)( 'whether this lawsuit is ' 'based upon an act outside the territory of the United States'; ( that was taken ' connection 2) in 8 ol- . continued) Iran, 186 F . 671, 674 ( 3d 5th Cir. 1999) ( single visit of Iranian official does not constitute substantial contact with the United States); see also id. (uln Stena, ( 923 F.2d at 389 n . 11Z we concluded that a single visit to Texas by a representative of a nationalized Mexican petroleum company did not constitute substantial contact with the United States.' . o 8 see Plaintiff 's Response to Petrotrin 's Motion , Docket Entry l No . 17, pp . 13-16 . - 25 - with a commercial activity ' of Argentina outside this country ; and that ' cause l a direct effect in the United States.'' dq ' Id . After deciding Argentina engaged in ucommercial' activity , the ' Court held that Argentina 's unilateral rescheduling of the maturity dates had a udirect effect' in the United States ul ' blecause New York was thus the place of performance for Argentina 's ultimate contractual obligations .' ' Id . at 2166 , 2168 . In Voest-A lpine, 142 F .3d at 893 , the Bank of China failed to pay on a letter of credit to the Texas bank account specified by the p laintiff . The Fifth Circuit discussed Weltover and held that ua financial loss incurred in the United States by an American plaintiff, an immediate consequence of the defendant's activity , constitutes a direct effect jurisdiction under the third clause exception to the FSIA .' ' sufficient to support the commercial activity Id . at 897 . It held that nthe Bank of China 's failure to pay on the letter credit caused a direct effect in the United States , that is , Voest-Alpine 's nonreceipt of funds in its Texas bank account followed consequence' of the Bank of China 's actions .' ' A ndirect' effect ' is one that consequence of the defendant's remote and attenuated .' ' as an 'immediate Id . at 896. ufollows as an immediate activity' and is not utoo ' See Weltover , 112 S . Ct . at 2168 . Here, there is not the direct effect found in Weltover and Voest-Alpine . 'The focus of extant jurisprudence E the direct effect prong) has ' on been on the breach of performance due - 2 6- the United States .' ' Energy Allied International Corp . v . Petroleum Oi1 & Gas Corp . of South Africa, No. H-08-2387, 2009 WL 2923035, at *4 ( D. Tex . S. Sept . Sarkar does not deny 2009) ( internal citations omitted) that Petrotrin was generally to pay Sarkar in a T & T bank account , but alleges that he uintended to regularly transfer his salary and other compensation payments back to h is US bank accounts' and ' uintended to receive the term ination payment directly to the US ( way of wire transfer to his US bank accountl.'8 Sarkar's by 'z unilateral intention to transfer his compensation to the United States from Trinidad is not a commercial act by Petrotrin , so it cannot be considered for these purposes . Sarkar argues that because he was not able United States to work in leave the uPetrotrin was aware that payment could only be received by Sarkar in the United States a bank account located in the US.'8 Sarkar points out that nafter E '3 he) attempted to negotiate some workaround for his work perm it process, he engaged counsel to make a demand for the above-termination payment - and such demand squarely required that Petrotrin contact his US counsel for payment instructions for th is termination payment .'8 Thus, Sarkar argues, uthe failure by Petrotrin to make '4 8See Amended Complaint, Docket Entry No. 12, p. 6 î 24. 2 Sarkar's Declaration does not mention these intentions, and Sarkar has not provided ev idence that the Term ination Payment would be made to his United States bank account if it were to become due . 83 see Plaintiff's Response to Petrotrin 's Motion , Docket Entry No . l7, p . 15 . 8 (d . 4j r the contractually required payment to Sarkar to h is US bank account had a direct effect upon the United States, namely a huge financial loss suffered by Sarkar on direct result ( the unilateral termination of the Contract) Petrotrin 's actions These facts are distingu ishable from those in Voest -A lpine and Weltover . The Contract does not state that the Termination Payment will be made to a United States bank, while in Voest-Alo ine , 142 F .3d at 896, uthe Bank of China conceded at oral argument, when the necessary documents are conforming , it is the Bank 's customary practice to send payments on a letter party specifies . credit to wherever the presenting In other words , had the Bank of Ch ina not found necessary to refuse payment , would have wired the money directly to Voest-Alpine 's Texas bank account .' In Weltover, 112 ' S . Ct . at 2164 , the plaintiffs designated their U .S . bank accounts as the place of payment pursuant to a contractual option . Sarkar does not argue that the Contract gives him the right to designate a place of payment .S E Performance under Sarkar 's Contract was contemplated to take place in T & T and to be governed by the laws of 8 Id 5 8The Amended Complaint, Docket Entry No. 12, p. 6 $ 24; p. 12 6 $ 48, states that uPlaintiff intended to receive the termination payment payable by Petrotrin upon termination of the Contract ( and as more fully described in paragraphs 39, 48, and 64 below) directly to the US ( by way of wire transfer to his US bank accountl.' and ' ' ' After terminating the Contract, Petrotrin has refused to pay the Termination Payment to Plaintiff ( which would be payable at this time by w ire transfer to Plaintiff's US bank accountl.' ' - 28- In Can-Am , 169 F . App 'x at 398-99, the arguments similar to Sarkar 's arguments. court examined Sorsby , the founder and CEO of CanAM ( LLC registered in Texas) marketed her services as an a financial consultant to Trinidad and Tobago and the Tobago House of Assembly , and the parties entered a memorandum of understanding . See id . Sorsby 's responsibilities included : 'introducing different ' financing structures to the THA for government review and selection; arranging the funding institution subject to THA approval ; providing contractual arrangements with program managers trading groups acceptable to the THA ; negotiating interest rates, subject required , payable on the funds held in T&T 's account , the approval of THA; arranging for the profits generated by the financing program to go into a THA trust account; working with the THA to arrange collateral , requ ired , for the financing program investigating and selected by the THA ; and arranging the lowest interest rates, selection and approval .' ' Id . at required , for the THA 's In turn , the THA 's responsib ilities included : nprov iding the most feasible and h igh priority projects for financing; getting all the necessary government approvals to imp lement the financing program selected by the THA from those subm itted by Sorsby ; executing necessary to imp lement the selected financing documents program ; and arranging a1l necessary government collateral as required .' Id . ' Can -Am argued that the third prong ndirect effect' exception ' applied : ub the E Appellees'q breach caused a direct effect on the - 2 9- United States' because Sorsby , an American citizen and CEO of an American company , expected to be compensated for her work in the United States .' Id . at 407 . The only direct effect Can-Am claimed ' was the financial loss to Sorsby . Id . Discussing Weltover , the Fifth Circuit upheld the district court 's dismissal for want of jurisdiction because Can -Am 's losses in pursuit of an acceptable investment opportunity for the Appellees are not enough to meet this prong of the commercial activ ity exception . Even if Can-Am did provide evidence of its financial losses, this prong still would not be met . It is undisputed that neither T & T nor the THA ever transferred money in connection with any alleged investment opportunity identified by Can -Am ; hence , the type of activity found to be commercial in Weltover and other cases is ab sent here . Can-Am 's alleged financial loss in the United States in and of itself is not enough to meet this prong of the commercial activity exception . Id . at 4087 see also Weltover, 1l2 S . Ct . at 2168 . Other courts have held there is no ndirect effect' in circum stances similar to ' Sarkar's . See, e .q ., Peterson v . Royal Kinqdom of Saudi Arabia, F. 3d foreign ( . . D C state 'might A 2005) ( finding no direct effect where well have paid E plaintiff) in the United States but it might just as well have done so outside the United States') ( ' internal citations and quotations omitted); Energy Allied International Corpw hardship 2009 WL 2923035, at *4 C' Financial too vague a basis for a direct effect see also id. ( describing Peterson, F.3d at as holding uperformance not necessarily due in United States, so no direct - 3 0- effectr 8 The fact that the termination payment would possibly 'l. 7 be paid v ia w ire transfer to the United States insufficient to confer jurisdiction.8 The acts or Bintent' by Sarkar to send money 8 ' to the United States or to receive money in the United States is not ucommercial activ ity' by Petrotrin . ' For these reasons, the court concludes that the third clause of the commercial activity excep tion does not apply here . Sarkar briefly argues that Petrotrin 's recruiting and hiring process for him involved acts taken inside the US to further commercial activity overseas, fitting within the first clause of 5 l605 ( 2). 9 a)( 8 The Amended Complaint provides a few specific 8 The fact that Sarkar engaged counsel in the United States to 7 make a demand for the payment is also not ncommercial activity' by ' Petrotrin . 8See Amended Complaint, Docket Entry No. 12, p. 6 $ 24; p. 10 8 $ 39 ( describing when Petrotrin would nowe Plaintiff' the ' Termination Payment, but not where it would be paid); p. 12 ! 48 ( uAfter terminating the Contract, Petrotrin has refused to pay the Termination Payment to Plaintiff ( which would be payable at this time by wire transfer to Plaintiff's US bank accountl.' ; p. 16 o î 64 ( arguing that the Termination Payment is due because nPetrotrin unilaterally terminated the Contract' . o See also Plaintiff's Response to Petrotrin 's Motion , Docket Entry No . 17, pp . 13-14 . 8 9see Plaintiff's Response to Petrotrin's Motion , Docket Entry No . 17, pp . 16-17. The Amended Comp laint , Docket Entry No . 12 , p. 3 ! 9, states: uWith respect to the acts or omissions here at issue, Defendant Petrotrin, at al1 times, was engaged in a commercial activity in Texas within the meaning of 28 USC 5 1605( 2).' Thus, the second clause of 5 l6O5 ( 2) does not a)( ' a)( apply here. u Because the first clause permits jurisdiction based on 'commercial ' acts in the United States , the second clause is generally understood to app ly to noncommercial acts in the United States that relate to commercial acts abroad .' ' ( continued- .) instances where Petrotrin contacted Sarkar while he was allegedly in the United States, but sometimes conflates Petrotrin and HRC .9O Sarkar 's declaration states generally : subsequently engaged in discussions and negotiations with Petrotrin and HRC regarding my position and contract with Petrotrin . Most of the time , Texas when communicating with HRC and Petrotrin .' l 'g was in sarkar also 8 gt.- continued) VoestAlpine, l42 F.3d at 892 n . ( 5 citing Nelson, 1l3 S. Ct. at 1478). Since Petrotrin's activities were undisputedly ucommercial,' the court need not consider the second clau se of ' 5 1605( 2). See id. at 892 (uE a)( Blecause a1l of the E defendant'sq acts and activities relevant to this case are indisputably ' commercial' in nature, the second clause is inapplicable .' '). 9see Amended Co 9 mplaint, Docket Entry No. 12, p. !$ 18, 2l; p. 6 $ 23; p. 10 $ 37. f 16; p. 5 9 lsee Sarkar Declaration , Exhibit 1 to Plaintiff 's Response to Petrotrin's Motion, Docket Entry No. 17-1, p. 1 ! 5. Besides this general allegation , Sarkar does not state that he was located in the United States when he received or sent any email in this chain . Sarkar 's Exhibits l-8 are attached to both of Sarkar 's responses ; Exhibit 9 is only attached to the response to Petrotrin 's motion . Exhibit 1 : Sarkar Declaration ; Exhibit 2 : December 4 , 2014, email from Sarwan Khairah, one of Sarkar's references, to Kelly Rajack at HRC; Exhibit 3: September 27, 2015, email from Sarkar ( forwarded by Kelly Rajack at HRC to Rajkumar at HRC) discussing u Revised contract' '; Exhibit 4 : September 27, 2015, email from Sarkar ( forwarded by Rajkumar at HRC to Rajack at HRC) discussing Sarkar's housing preferences; Exhibit 5 : February 1 , 2015 , email from Sarkar to Rajkumar discussing the work permit denial ( including a draft letter addressed to Hassanali at Petrotrin); Exhibit 6: Trinidad Ministry of National Security Guidelines for subm itting applications for Work Perm its for Non-nationals ; Exhib it 7 : January 2, 2015, email from Rajack at HRC to Rajkumar at HRC discussing a request for a copy of the ad l vertisementl placed for the Vice President Marketing position to be used in the application package for Sarkar's work permit ( admitting that HRC did not place an 'AD' for the position nas we had already made contact with I ' Mr. Sarkar during the CFO search' '); Exhibit 8: January 8, 2015, emails between Rajack ( introducing Huff and Sarkar), Huff, and ( continued.- ) - 32 - generally alleges that HRC acted as Petrotrin 's agent , but does not provide support for that allegation .g z Regardless, Petrotrin 's and HRC'S communications with Sarkar while he was the United States were minimal : a few emails, a few phone calls, and one letter .9 In Tubular Inspectors, Inc . v . 3 Petroleos Mexicanos, 185-86 ( 5th Cir . 1992), the Fifth Circuit rejected the applicability of the first clause of the commercial activity exception to the plaintiff 's tort and contract claims . The court held that a foreign state that addressed a purchasing order jointly American and Mexican subsidiaries , inspected and approved the ordered goods in Houston , and received and paid invoices that were sent by the American and Mexican subsidiaries did not trigger the commercial activity exception in a lawsuit over unpaid invoices .g Id . at 184-86 .95 4 g ll- . continued) Sarkar, discussing Sarkar and Huff meeting before Huff flies to T & T ; Exhib it 9 : January 7 , 2015, email from Sarkar to Hassanali, thanking Hassanali for 'taking into consideration joining Petrotrin ' as a consultant till the work permit approval arrives .' ' 9see Amended Complai 2 nt, Docket Entry No. l2, p. 2 f 4; p. ! lO; p. 8 $ 32; p. 9 $ 36. HRC asserts that ' ' HRC is a n independent contractor over which Petrotrin has no day-to-day control . HRC and Petrotrin do not share emp loyees .' Adharsingh ' Declaration , Exhibit A to Petrotrin 's Motion , Docket Entry No. 13-2, p. 3 $ 5. 9 3see Adharsingh Declaration , Exhibit A to Petrotrin 's Motion , Docket Entry No. 13-2, p. 2 T 6. 9 4sarkar also argues that his offer to work as a consultant from T & T and the United States was accepted , which constitutes acts taken in the US relating to commercial activity in T & T , and ( continued - .) Having identified the relevant commercial activity , the court concludes that it does not have the urequisite jurisdictional nexus w ith the United States .' Can -Am , 169 F . App 'x at 404 . Petrotrin 's ' few alleged communications with Sarkar are not 'commercial activity ' carried on in the United States' with nsubstantial contact' with ' ' Texas ( the extent that Sarkar's claims are even based upon those to communications). see 28 55 1603 4 3), 1605 ( ( a) 2). As g 4t... continued) arguably to conducting commercial activity in the United States itself. See Plaintiff's Response to Petrotrin 's Motion , Docket Entry No . l7, p . 16 . 9 51n stena Rederi AB , 923 F .2d at 389, the court noted that 'l iqf the district court had concluded that Captain Mendez Cid's visit to Brownsville was an act in the United States in connection with foreign commercial activity sufficient to confer jurisdiction under the FSIA , this Court might have been obligated to affirm the district court's exercise of jurisdiction over E plaintiff'sq negligent misrepresentation claim . It is apparent , however , that the district court did not reach such a conclusion . The record is entirely devoid of any suggestion that a Cap tain Mendez Cid made wrongful statements on Pemex 's behalf in Brownsville , Texas .' In ' a footnote , the court continued : 'Stena argued in its sworn ' complaint that the commercial activities exception in the FSIA precluded Pemex 's claim of sovereign immunity . The complaint, however , makes absolutely no reference to a Captain Mendez Cid . Indeed , the complaint suggests that one Ramon Betteta in Sweden made the statements that induced Stena to mobilize the STENA SEAHORSE . The record contains no evidence and reveals no affidavits that wou ld tend to verify the Brownsville visit of Captain Mendez Cid . The only mention of Captain Mendez Cid in the record is a sentence in Plaintiff 's Response to Pemex 's Motions to Dismiss for Want of Subject Matter, Personal Jurisdiction and Under the Doctrine of Forum Non Conveniens to the effect that Captain Mendez Cid inspected the STENA SEAHORSE in the Texas port . Significantly , the p laintiff 's response did not expressly contend that Captain Mendez Cid himself provided any false information to Stena officials.' ' Here, Rajkumar ( who is not an employee of Petrotrin) allegedly misrepresented the work permit application status in T & T . See Amended Complaint, Docket Entry No . 12 , p . 13 $ 5O. See also note 124, infra. - 34 - discussed above , the court cannot consider other isolated or unrelated contacts with Texas by Petrotrin . Because Petrotrin is a foreign sovereign and Sarkar has not produced facts establishing that an excep tion to sovereign immunity applies , the FSIA requires the court to grant Petrotrin 's Motion to Dismiss . Can -Am , 169 See generallv App 'x HRC 'S Motion to Dism iss HRC argues that the court should d ismiss the Amended Complaint because the court lacks personal jurisdiction over HRC.6 sarkar 9 responds that this court does have specific personal jurisdiction over HRC because HRC directly contacted/recruited Sarkar knowing he was in Texas, which also resulted in HRC 'S negligent acts .97 A. Standard of Review The plaintiff bears the burden of establish ing the court 's jurisdiction over the defendant. See Colwell Realty Investments, Inc . v . Triple T Inns of Arizona, Incw Cir . 1986). 785 F . 2d 1330, ( 5th When the court decides the defendant's motion to 9 6see HRC'S Motion to D ismiss, Docket Entry No . 14, pp . S-11 ; HRC 'S Reply in Support, Docket Entry No . 19, pp . 7-19 . HRC also argues for dism issal pursuant to forum non conveniens, but as the court concludes that it lacks personal jurisdiction over HRC, it does not reach this argument . 9 see 7 Plaintiff's See id . at 16-18 . Response to Defendant HRC A ssociates Limited's Motion to Dismiss ( nplaintiff's Response to HRC'S Motion' , Docket Entry No . l6, pp . 3, 7-10. Sarkar alternatively o requests that the court sever any causes of action and/or parties so that the appropriate claims/parties subject to this court's jurisdiction may proceed here. See id. at 1l. - 35 - dismiss without an ev identiary hearing , the p laintiff meets its burden by presenting a prima facie case for personal jurisdiction. Id . at 1333 . The court may examine the complaint, affidav its, interrogatories, depositions , oral testimony , or any combination of recognized discovery methods . Id . Uncontroverted allegations in the comp laint must be taken as true , and any conflicts in the evidence must be resolved in favor of the plaintiff. See id .; American Film & Printinq , Ltd . v . Cowart Mu lch Products , Inc ., No. 3:l5-CV-0682-L-BF, 2015 WL 5836599, at *4 ( . . Tex . July l6, N D 2015) ( citing Dullion v . Gillespie, 895 F.2d 213, 2l7 ( 5th Cir . 1990)); Mvlonakis v . M/T Georqios M ., 909 Supp . 2d 691, ( . . Tex. 2012). The court is not obligated to credit conclusory S D allegations , even if uncontroverted . See Panda Brandywine Corp . v . F.3d 865, 869 ( 5th Cir. 2001) Potomac Electric Power Co ., ( citations omitted). A federal court may exercise personal jurisdiction over a nonresident defendant for claim s arising under state law the state long-arm statute confers personal jurisdiction over that defendant, and if the exercise of jurisdiction is consistent with due process under the United States Constitution . Turbines, Inc. v . Donaldson Co., Incw F.3d 415, Ruston Gas ( 5th Cir. 1993). The Texas long-arm statute extends personal jurisdiction to the constitutionally permissible limits of due process. Aviles v . Kunkle, 978 F.2d 201, 204 (5th Cir. 1992) ( citations omittedlx 8 9 see generallv Tex . Civ . Prac . & Rem . Code Ann . Chap . l7, 8 Subchapter C ( LongArm Jurisdiction in Suit on Business Transaction or Tort). - 36 - Therefore , the court uneed only inqu ire whether the assertion of jurisdiction over E the nonresident defendant) by a district court sitting in Texas would be constitutionally perm issible .' Stuart v . ' Spademan, 772 F.2d 1185, 1189 ( 5th Cir. 1985). process' inquiry . ' In conducting This is the ' ' due See id . the due process inquiry , the court must determine ( that the defendant has established ' 1) minimum contacts' ' with the forum state ; and that the exercise of personal jurisdiction over the defendant does not offend utraditional notions of fair play and substantial justice.' Ruston Gas, 9 F.3d ' at ( citing International Shoe Co . v . State of Washington, Office of Unemployment Compensation and Placement, 66 S . Ct. 154 , 158 ( 1945)); Stuart, 772 F.2d at 1189. The u minimum contacts' ' prong itself is divided into two types of personal jurisdiction: general or specific . See Ruston Gas , 9 F .3d at 418; Daimler AG v . Bauman, 134 S . Ct. 746, 751 ( 2014) ( citing Goodvear Dunlop Tires Operations, S. . v . Brown, 131 S . Ct. 2846 ( A 2011)); McFadin v. Gerber, 587 F. 753, 759 ( 3d 5th Cir. 2009). B. Analysis Specific Jurisdiction uSpecific jurisdiction depends on an ' affiliatio l n) between the forum and the underlying controversy ,' principally , activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation. - 37- In contrast to general, all-purpose jurisdiction, specific jurisdiction is confined to adjudication of ' issues deriving from, or connected with, the very controversy that establishes jurisdiction.'' ' Goodyear, l31 S. at 2851 ( citations omitted; aee also Ruston Gas, 9 F.3d at 418-19 (1 state exercises 'specific jurisdiction' 'A over a non-resident defendant when the lawsuit arises from or relates to the defendant 's contact with the forum state . single act by the defendant directed at the forum state , therefore , can be enough to confer personal jurisdiction if that act gives rise to the claim being asserted.' ' ( citations omittedl) Specific jurisdiction ufocuses on the relationship among the defendant, the forum , and the litigation .' ' Monkton Insurance Services , Ltd . v . Ritter, 768 F. 3d 429, 432-33 ( 5th Fiore, 134 S . Ct. 1115, 1121 2014) ( citing Walden v . ( 2014)). Specific personal jurisdiction is a claim-specific inquiry. McFadin, 587 F. at 759 3d plaintiff bringing multiple claims that arise out of different forum contacts of the defendant must establish specific jurisdiction for each claim.' ( ' quoting Seiferth v. Helicopteros Atuneros, Incw F.3d 266 ( 5th Cir . 2006)). The specific jurisdiction inquiry consists of three steps: ( whether the defendant has minimum contacts with the 1) 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 . - 38 - Seiferth , 472 F.3d at 271 ( citations omitted). the plaintiff successfully satisfies the first two steps , the burden shifts to the defendant to defeat jurisdiction by showing that its exercise would be unfair or unreasonable . Id. ( citation omitted). HRC'S alleged contacts with Texas include initiating the communications with Sarkar regarding the Vice President Marketing position , calling and emailing Sarkar while Sarkar was in Texas, and contacting one Sarkar 's references who was Sarkar was also in Texas when he signed the Contractx o o asserts two claims against HRCX H Texas .99 sarkar As described by Sarkar: 'The ' first claim is for negligence based on HRC'S failure to follow the proper procedure in applying for the work perm it . HRC has already admitted that it did not post an advertisement for Sarkar 's position , as required by the work permit application process . The second claim is for negligent m isrepresentation based on HRC 'S representation Sarkar that the work permit process was just a fOrmality .MZ0 2 9 9see Plaintiff's Response to HRC 'S Motion , Docket Entry No . 16, p . 3 ; Sarkar Declaration , Exhibit 1 to Plaintiff's Response to HRC'S Motion, Docket Entry No. 16-1, p. 1 $! 3, 57 emails re: Sanjoy Sarkar Reference Check between Kelly Rajack, Technical Associate at HRC Associates, and Sarwan Khairah , Exhibit 2 to Plaintiff's Response to HRC 'S Motion , Docket Entry No . 16-2 . l rhe Contract is with Petrotrin , not HRC ; and Sarkar asserts 0o his breach of contract claim only against Petrotrin . See Amended Complaint , Docket Entry No . 12, pp . 15-16 . l lsee Amended Complaint, Docket Entry No . l2, pp . 17-20 . o l 2see Plaintiff 's Response to HRC 'S Motion , Docket Entry 0 No. 16, p . 8 ( citations omitted). HRC has twelve employees and one office , a1l located in & T .l 3 0 does not own , lease, or control any real estate in Texas and does not have a license to conduct business in Texas or a registered agent for serv ice of process in Texas x o HRC does not 4 pay taxes or own a bank account in Texas .l0 5 HRc has never contracted with anyone in Texas and has never had employees , servants, or agents Texas .lg 6 HRC 'S 'recruiting activity ' in l ' Texas consists solely of internet job postings via Linkedln, which are viewable worldw ide and to wh ich occasionally receives responses from Texas residents x o It has never filed a lawsuit in 7 Texas or been sued in Texas , with the exception of this action x D 8 Sarkar points out that HRC contacted him regarding the open Vice President Marketing position and that he would not have known about the position otherwise x o g However , HRC contacted Sarkar l3 0see Rajkumar Declaration, Exhibit A to HRC'S Motion to Dismiss , Docket Entry No . 14-2 , p . 2 f 3. Recruiting accounts for less than half of HRC 'S business . Id . l4 0see id. at 3 î 4. zs osee id. ! z6 osee i $ d. l7 0see id. at 3-4 $$ 7-9. n( n the fi Iq ve years preceding January 3O, 2015, only responses from three Texas residents ( including Sarkar) have led to follow-up discussions with HRC .' Id . ' at 3 ! 7. l8 Osee id. at 3 ! 6. l gplaintiff's Response to HRC'S Motion , Docket Entry No . l6, o p . 3; Sarkar Declaration , Exhibit l to Plaintiff's Response to HRC'S Motion, Docket Entry No. 16-1, p. 1 f 3. 'The court must ' ( continued.- ) - 40 - because it already had his resume and other materials from his prior response to a Linkedln internet post advertising the CEO position x l No HRC employee traveled to Texas or anywhere in the o United States to meet with Sarkar, and al1 meetings between HRC and Sarkar occurred in T & T .l l l President Marketing job sarkar interviewed fOr the V ice T & HRC engaged in several email and telephone communications with Sarkar regarding his emp loyment and move to T & T .ll 3 Most of these occurred while Sarkar was in l l- . o continued) accept as true the uncontroverted allegations in the plaintiff's comp laint and must resolve in favor of the p laintiff any factual conflicts .' Mvlonakis , 909 F . Supp . 2d at 704 . However , Sarkar 's ' affidavit and Response to HRC'S Motion do not deny that Sarkar initially contacted HRC in response to a general Linkedln advertisement for a different position at Petrotrin . This is also consistent with the Amended Complaint, which states, 'Sarkar was ' first contacted by HRC for the position of CFO , and when this did not come to fruition , HRC again contacted Sarkar for the position of E vice President Marketing). HRC made the first contact in both instances to Sarkar on behalf of Petrotrin .' ' Amended Complaint, Docket Entry No. l2, pp. 3-4 î 12. lo lsee Rajkumar Declaration, Exhibit A to HRC'S Motion to Dis miss, Docket E ntry No. 14- p. 4 $$ 10-11. 2, ll lRajkumar visited Houston at various times in 2014 and 2015 for cancer treatment and met w ith Ronald Huff during one of these visits. See i at 5 !! 17-18. At t ti Huff was disc d. he me ussing potential employment as CFO with Petrotrin, but Rajkumar avers that ul tqhis was a courtesy meeting and not an interview .' ' Id. Regardless, Rajkumar's meeting with another person regarding a different position for Petrotrin does not relate to Sarkar's negligent m isrepresentation and negligence claim s against HRC . 1 2see Adharsingh Declaration , Exhibit B to HRC'S Motion to l Dismiss, Docket Entry No. 14-3, p. 3 $ 7. 13 lsee note 91 supra. See also Rajkumar Declaration, Exhibit A to HRC'S Motion to Dismiss, Docket Entry No. 14-2, pp. 4-5 $ 14. Generally , communications initiated by the p laintiff cannot be ( continued - .) - 4 1- Texasxl 4 market HRC and Petrotrin represented that Texas was a strong area focus during Sarkar 's interview process and contacted one of Sarkar's references who was located in Texasx l s HRC collected some o f the material from Sarkar that Petrotrin submitted with the work perm it app lication to the T & T government , but Petrotrin subm itted the paperwork x l 6 sarkar sent an email in early December of 2014 discussing potential contract rev isions and issues relating to dollars and tax returnsx l In December Of 7 2014 Sarkar sent an email stating that he would ustart work with Petrotrin from January 19th 2015' and discussing ' fam ily 's housing needs .l 8 l l3t.o. l continued) considered . Monkton, 768 F. at 431-33 ( 3d multiple phone calls and wire transfers between a Texas resident pla intiff and a foreign defendant were uinitiated by E the Texas resident and his company) and are thus insufficient to confer jurisdiction' ') ll see Sarkar Declaration , Exhibit 1 to Plaintiff 's Response to q HRC 'S Motion , Docket Entry No . 16-1, p. 1 f 5. l5 lsee id. j 4; emails re: Sanjoy Sarkar Reference Check between Kelly Rajack, Technical Associate at HRC Associates, and Sarwan Khairah , Exhibit 2 to Plaintiff 's Response to HRC 'S Motion , Docket Entry No . 16-2 . l6 lsee Rajkumar Declaration, Exhibit A to HRC'S Motion to Dismiss, Docket Entry No. 14-2, p. 4 f 12. ll see September 27 , 2015, email from Sarkar 7 (forwarded by Kelly Rajack at HRC to Rajkumar at HRC) discussing 'Revised ï contractz' Exhibit 3 to Plaintiff's Response to HRC/S Motion , ' Docket Entry No . 16-3 . l8 lsee September 27, 2015, email from Sarkar ( forwarded by Rajkumar at HRC to Rajack at HRC) discussing Sarkar's housing preferences , Exhibit 4 to Plaintiff's Response to HRC 'S Motion , Docket Entry No . 16-4 . - 42 - Sarkar alleges that he underwent 'sign ificant ' personal , professional , and financial changes because of b0th Petrotrin 's and HRC'S representations relating to his anticipated work/employment with Petrotrin.'lg usarkar resigned from his job, gave notice to 'l his daughter's school that she would be leaving ( the middle of in the school year), and informed his business contacts about his move .' 2O 'l sarkar argues that ' 'these changes had a direct and immediate impact in Texas - not Trinidad & Tobago - and on Sarkar's fam ily , professional , and financial life .' 2l 'l While these circumstances undoubtedly impacted the Sarkar fam ily greatly , a p laintiff 's actions in the forum state resigning from a job, informing a school of a transfer, informing colleagues of an impending work opportunity - cannot be imputed to HRC . The plaintiff's own contacts with the forum cannot be used to demonstrate contacts by the defendant . l see Plaintiff's Response l9 No . 16, p . 4 . Monkton , F .3d at 433 to HRC 'S Motion , Docket Entry lO 2 see id. ( citing Sarkar Declaration, Exhibit l to Plaintiff's Response to HRC'S Motion, Docket Entry No. 16-1, pp. l-2 $ 77 February 1, 2015, email from Sarkar to Rajkumar discussing the work permit denial ( including a draft letter addressed to Hassanali at Petrotrin), Exhibit 5 to Plaintiff's Response to HRC'S Motion, Docket Entry No . 16-5). ll 2 see id. Sarkar also states that ' wlitnesses and documented 'l evidence that can verify these changes are located in Texas .' ' However, l dlue process limits on the State's adjudicative 'E authority principally protect the liberty of the nonresident defendant-not the convenience of p laintiffs or third parties.' ' Walden, 134 S. Ct. at 1122 ( citing World-Wide Volkswaqen Corp . v . Woodson, 100 S. Ct. 559, 564 ( 1980)). ( citing Walden, l34 S. Ct. at 1122). 2 12 k A Moreover, a plaintiff's unilateral activities in Texas do not constitute m inimum contacts where the defendant did not perform any its obligations in Texas , the contract did not require performance in Texas, and the contract is centered outside of Texas .' Moncrief Oi1 International ' F.3d Inc . v . OAO Gazrrom , ( 5th 2007) ( citing Hydrokinetics , Inc . v . Alaska Mechanical, Inc w 700 F .2d 1026 , 1029 ( 5th Cir. 1983)) As the Supreme Court described : First , the relationship must arise out of contacts that the ndefendant himself' creates with the forum State . We ' have consistently rejected attempts to satisfy the defendant-focused 'm inimum ' contacts' ' inquiry by demonstrating contacts between the plaintiff ( or third parties) and the forum State . . . Put simply, however significant the p laintiff 's contacts with the forum may be , those contacts cannot be udecisive in determ ining whether the defendant's due process rights are v iolated .' ' Second , our um inimum contacts' analy sis looks to the ' defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there . Walden , 134 Although at 1122 . one satisfy contact can the test for specific jurisdiction, the court can only consider the contacts that give rise to Sarkar 's claim s . See Ruston Gas, Goodyear , 13l S . Ct . at 2851 . F .3d at 418-19 ; Sarkar argues that 'HRC 'S adm itted ' misrepresentation to ( himl that the work permit process was just a l zsarkar's z other factual statements focus on the United States, not Texas specifically . For examp le, Sarkar understood that his compensation was tied to the U .S . dollar and that he would have to pay U .S . taxes and comply with U .S . laws . This is not relevant here because HRC was not a party to the Contract and Sarkar is not asserting a breach of contract claim against HRC . - 44 - 'formality ' resulted in Sarkar taking actions and making statements that had a direct and i mmediate impact in Texas.'l3 Rajkumar avers '2 that the only time he mentioned that the work permit application process was a uformality' was verbally to Sarkar ' & Despite knowing that not placing an advertisement for the Vice President Marketing positionl was a prob lem for the work permit zs app lication , six day s later HRC confirmed via email that Sarkar was l 3see Plaintiff 's Response to HRC'S Motion , Docket Entry 2 No. 16, p. 47 Rajkumar Declaration, Exhibit A to HRC'S Motion to Dismiss, Docket Entry No. 14-2, p. 5 $ 15. Sarkar alleges that he relied on this statement . See Sarkar Declaration , Exhibit 1 to Plaintiff's Response to HRC'S Motion , Docket Entry No . 16-1, p . 1 $ 7 (1 relied on the vari 11 ous repres entations f m Petrotri and ro n HRC . . . ( includingq Rajkumar's representations to me that the work permit process was just a formality.o . ' l4 2See Rajkumar Declaration, Exhibit A to HRC'S Motion to Dismiss, Docket Entry No. 14-2, p. 5 $ 15. See also Amended Co ai mpl nt, Docket Entr No. l2, p. 13 f 50 ( Rajkumar E ver y u ) ball y communicated to Plaintiff , and Plaintiff affirmatively relied on this communication that the work permit process was a umere formality' for prospective employees of Petrotrin . In an email ' dated December 29, 2014, Rajkumar stated that the work permit would be taken care that week and that 'there was no need to worry '. Plaintiff relied on these statements.o . However, this email is ' not attached to any pleading , and Sarkar does not discuss it in his response. See Morris, 721 F. Supp . 2d at 570 ( uBecause Morris has not alleged, and Ebert has not submitted any evidence showing that the misrepresentations for which relief was sought in this action were made in Texas, the court concludes that Olymp iakos lacks min imum contacts needed to support the court 's exercise of personal jurisdiction over it with respect to the fraud claims asserted here since those claims do not arise from and are not connected to Olympiakos' contacts with Texas.'). ' l5 2see January 2, 2015, email from Rajack to Rajkumar discussing a request for a copy of the advertisement placed for the Vice President Marketing position to be used in the application package for Sarkar 's work perm it and admitting that HRC did not place an advertisement for the Vice President Marketing position uas we had already made contact with Mr . Sarkar during the CFO search ,' Exhibit 7 to Plaintiff's Response to HRC /S Motion , Docket ' Entry No . 16-7 . - 4 5- uthe incoming ( Vice President Marketingq at Petrotrin .vl6 sarkar z argues that 'w ith respect to the first claim for negligence , even ' though the actual act of submitting an improper work permit application occurred in Trinidad & Tobago , the basis for it was due to HRC'S knowledge and action of reaching out to Sarkar in Texas due to his prior attempt to obtain the CFO position .' z 'l 7 The issue before the court is not whether HRC was negligent, but whether HRC has su fficient minimum contacts with Texas for the court to exercise jurisdiction over Any negligence on HRC'S part in failing to advertise the Vice President Marketing position , the ostensible reason T & T ultimately denied Sarkar 's work permit application , occurred Failure to correct this or any other defect associated with the work permit application also occurred in T & T. Similarly, Rajkumar's representation to Sarkar in T & T is not a tort committed in Texas . In TPG Partners 111, L . v . Kronfeld, No . 4:01-CV-O895- , 2002 WL 1315798, at P. A ( D. N. Tex . June 13, 2002), the plaintiff argued that the exercise of personal jurisdiction over the defendant was appropriate based on 'several fraudulent and/or negligent misrepresentations' made to ' ' plaintiff, a Texas resident , by facsimile , telephone , and other l6 2see January 8, 2015, emails between Rajack ( introducing Huff and Sarkar), Huff, and Sarkar, discussing Sarkar and Huff meeting before Hu ff flies to T & T, Exhib it 8 to Plaintiff's Response to HRC 'S Motion, Docket Entry No . 16-8 . l2 see Plaintiff's Response 7 No . 16, p . 9 . - to HRC 'S Motion , Docket Entry 46- communications to plaintiff 's Texas headquarters . not ex ist for that personal jurisdiction negligence and negligent m isrepresentation The court held the p laintiff's claim s when the defendants never came to Texas and the plaintiff did not point out how any of the referenced emails or phone calls were fraudulent . Id . at *3-4 . - See also General Electric Caoital Corp . v . Posev , No . 4:02-CV-319-Y , 2006 WL 708163, at *6 ( . . Tex . Mar. 20, 2006) N D (nAlthough the board meetings that E defendant) attended were admittedly a1l in Texas , GECC has failed to su fficiently tie the content those meetings or ( defendant's) conduct at those meetings to the negligent misrepresentation claim against him so as to give rise to specific personal jurisdiction. There is no proof that the matters presented and discussed at the Texas board meetings or ( defendant's) conduct at those meetings contributed in any way to the alleged misrepresentations about EBITDA upon which GECC relied in making the loan to ProMedco . For these reasons , the Court concludes that GECC has failed to demonstrate , prima facie. that its lawsuit arises out of or relates to E defendant's) contacts with Texas; as a result, specific personal jurisdiction is lacking .o ; Memorial Hospital System v . Blue Cross and Blue Shield ' of Arkansas, (u Nonetheless, 83O F. Supp . Plaintiff 968, maintains 971-74 that ( . S D. if an Tex. 1993) out-of-state tortfeasor such as Blue Cross knows that the brunt of the injury will be felt by a Texas resident , the tortfeasor must reasonably foresee being haled into a Texas - 47- court answer for such actions. distance ( Nqegligently answering in Arkansas a single, longtelephone inquiry initiated by a Texas hosp ital ascertain the availability of insurance coverage to would therefore not rise to the level of an act or acts by the Arkansas insurer that can be regarded as purposefully directed or aimed at Texas as a forum .' . o Torts committed elsewhere do not give personal rise jurisdiction over a defendant merely because the defendant knows of plaintiff's ustrong forum connections .' ' Walden , at 1124 . In Walden the court held that the court of appeals erred nby shifting the analytical focus of the ( defendant's) contacts with forum to his contacts with E plaintiff'sl.' ' Id. There, plaintiffs ( Nevada residents) sued a DEA officer who stopped the plaintiffs at the Atlanta airport at their departure gate for Las Vegas. Id . at 1119. The officer seized $97,000 susp icion could be related to drug transactions . cash on Id . A t som e point, the officer drafted an affidavit to show probable cause for forfeiture of the money and forwarded that affidavit to a United States Attorney 's office in Georgia . Id . The officer also received correspondence from the plaintiff 's Nevada attorney . Id . The Court stated E defendant's) ( Defendant) that course never ' ilt is undisputed 'l of conduct traveled occurred conducted that no part of Nevada. activities within, contacted anyone in , or sent anything or anyone to Nevada . In short, when viewed through the proper lens-whether the defendant 's - 48- actions connect him to the forum-petitioner jurisdictionally relevant contacts with Nevada.' ' formed no Id. at 1124. Rather than assessing the defendant's contacts with Nevada , the Court of Appeals erred by looking to defendant 's knowledge plaintiff's 'strong forum connections,' and finding that know ledge , ' ' combined with its conclusion that respondents suffered foreseeable harm in Nevada , satisfied the uminimum contacts' inquiry . Id . The ' Court held that ' t)his approach to the ' 'l minimum contacts' analysis impermissibly allows a p laintiff 's contacts w ith the defendant and forum to drive the jurisdictional analysis.' Id. at 1125. ' Sarkar also argues that ' 'it is established that a nonresident entity ' who recruits Texas E residents) to work in another state, either directly or through an agent located in Texas, is subject to the jurisdiction Texas courts for claims arising from that recruitment.'' ( ' quoting Garcia v . Vasauez, 524 Supp . 40, 42 ( D. Tex . 1981) ( S. emphasis added)). 2 sarkar argues that the basis 18 l 8see Plaintiff 's Response to HRC 'S Motion, Docket Entry 2 No . 16, p . 9. Generally , a defendant does not have minimum contacts with a state 'when it does not have a phy sical presence in N the state ; it did not conduct business in the state ; and the contract underlying the bu siness tran saction at issue in the lawsuit was not signed in the state and did not call for performance in the state.' Monkton, 768 F.3d at 433 ( ' citing Seiferth, 472 F.3d at 272); see also Evergreen Media Holdings, LLC v . Safran Co., 68 F. Supp. 3d 664, 684 ( . . Tex . 2014)7 Moncrief S D Oil, 48l F.3d at 3l2 ( nAn exchange of communications in the course of develop ing and carrying out a contract also does not, by itself, constitute the required purposeful availment of the benefits and protections of Texas law. Otherwise, jurisdiction could be exercised based only on the fortuity that one of the parties happens to reside in the forum state.' '); McFadin, 587 F. at 759 3d ( continued.- ) - 49- for his negligence claim lwas due to HRC 'S knowledge and action of ' reaching out to Sarkar in Texas due to his prior attempt to obtain the CFO position ,' although he admits that ' ' 'the actual act of submitting an improper work perm it application occurred in TrizidRd .MZ 29 Sarkar relies on Garcia and attempts to distinguish Morris, Supp . 2d at 566, where the court found no evidence that nwhen ( the nonresident defendant/employer) recruited E the plaintiffq through E the plaintiff's) Massachusetts-based agents, that E the nonresident defendant/employerq knew or had reason to know that it was recruiting a Texas resident .'l3 r o court stated that uGarcia stands for the In Morris the principle that a nonresident farmer who recruits Texas laborers to work in another state , either directly or through an agent located in Texas, is subject to the jurisdiction of Texas courts for claims arising from H8t... continued) ( holding that communications relating to the performance of a contract them selves are insufficient to establish m inimum contacts and noting that ujurisdiction must not be based on the fortuity of one party residing in the forum state' ( ') citing Freudensprunq v . Offshore Technical Services, Inc ., 379 F . 3d 327, 344 ( 5th Cir. 2004)). HRC'S email and phone communications with Sarkar, u most' ' of which occurred while he was in Texas, rested on nothing but the mere fortuity that Sarkar happens to be a resident of Texas . Holt Oi1 & Gas Corr . v . Harvev, 8O1 F.2d 773, 778 ( 5th Cir. 1986) ( citing Patterson v. Dietze, Incw 764 F. 2d 1145, 1147 ( 5th Cir. 1985))7 Aviles, 978 F. 2d at 205 ( collecting cases discussing communication to a Texas resident by a nonresident defendant). l2 see Plaintiff's Response 9 No . 16, p . 9 . l3 see id . at 7 . O - 50 - HRC 'S Motion , Docket Entry that recruitment.' ' Id . at 565 ( citation omitted). The court distinguished Garcia : Garcia , 524 F . Supp . at 40, is distinguishable from this case because there the request for laborers was not only communicated to and distributed by the Texas-based TEC , but the p laintiffs spoke by telephone to the TEC in 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 in the lawsuit were claims for breach of the term s and conditions of employment that the TEC communicated to them during their telephone call to Texas . Here , there is no evidence that Olympiakos used any Texas-based entity to recru it Morris to work in Greece . . . Ebert has not cited any ev idence showing that before Morris spoke on the telephone with Liveratos and agreed to play basketball for Olympiakos, i .e ., when Olympiakos recruited Morris through Morris ' Massachusetts-based agents , that Olymp iakos knew or had reason to know that it was recruiting a Texas resident . Morris, 721 Supp . 2d at 565-66 ( citations omitted). In Morris the court also distinguished other cases where courts had found 'the exercise of specific jurisdiction comportl ' ed) with the requirements of due process .' Morris, 72l F . Supp . 2d at ' 566 . These cases are distinguishable because Sarkar 's claims arise out of subsequent allegedly negligent acts by HRC in T & In other cases the claims included breach of contract and were against the emp loyer who entered the contract with the p laintiff . See , e . ., Runnels v . TM SI Contractors , Inc w 764 F .2d 417 , 417-18, 423 g ( 5th Cir. 1985); Dotson v . Fluor Corp., 492 F. Supp . 313, 314-17 ( . . Tex . 1980). W D distinguishable . Other cases cited Morris are also In Clark v . Moran Towing & Transportation Co ., Incw 738 F. Supp . 1023, 1029-30 ( . . E D - 51 - 1990), and Runnels, F .2d at 417-18, the defendant advertised directly in the forum state by placing advertisements in local newspapers . In Dotson , 492 F . Supp . at 314-17 , the defendant used an agent authorized to do business in Texas to recru it Texas employees to work overseas by p lacing advertisements in a Texas newspaper . v . Milk Train, Inc w l82 Supp . 2d 590, In Gonsalez Moreno ( . Tex . 2002), W D. defendant contacted a farm labor service to recruit Texas residents for migrant farm employment in New York , provided the farm labor service with the terms and conditions of employment, paid the farm labor service a fee for each migrant worker provided, hired plaintiffs as a result of the farm labor serv ice 's recruitment in Texas, paid plaintiffs' bus fare to New York , and allowed plaintiffs to sign their emp loyment contracts in Texas . In Aviles, 978 F .2d at district court should not the Fifth Circuit held that the have exercised specific personal jurisdiction over defendants. The district court found the assertion of specific personal jurisdiction over the defendants to be proper because of the partial performance of a contract in Texas E . n 4 uThe district court concluded that the communica- tion from defendants' agent regarding start date , plaintiffs' preparation for the trip , and at least some of the journey to Ohio constituted part performance of a contract in Texas.'), the partial commission of a tort in ' Texas E n.5 'The district court found that the misrepre' sentation by defendants ' agent in the telephone communication and the letter regarding the start date of the harvest constituted a tort committed partially in Texas.'q, and the recruitment of Texas residents in Texas ' for employment outside the state . Such actions can in some cases prov ide the requisite minimum contacts permitting a court to exercise personal jurisdiction over a nonresident defendant, but only if the asserted cause - 52 - of action arises out of these lcontacts .' In the case at ' ' bar , however, plaintiffs' cause of action is not based upon any contract, tort, or recru itment in Texas , but upon the alleged violation of two federal statutes arising solely out of their employment in Ohio . Id. at 204-05 ( citations omitted). See also Baker Hughes v. Homa, Civ il Action No . H -11-3757 , 2013 WL 5775636 , *1 , *5, *9 , *17-19 ( D. Tex . Oct. 25, 2013) C' S. Even assuming that NBG Holding sent the email to Norton for the purpose of try ing to recruit him to work for NBG Holding , that email by itself would be insufficient establish minimum contacts with Texas . A telephone call to a potential recruit from a prospective employer is insufficient to establish minimum contacts in the recruit's state.' ( ' citing Morris, Supp . 2d at 560)) HRC initially had no reason to know it was recruiting a Texas resident when it advertised the CFO position in a post accessible worldwide on Linkedln x3 l resident when Although HRC knew Sarkar was a Texas reached out to him regarding the Vice President ll 3see Rajkumar Declaration, Exhibit A to HRC'S Motion to Dismiss, Docket Entry No. 14-2, p. 3 î 77 p . 4 ! 10. In Aviles, 978 F .2d at 205 , the Ndistrict court also found that certain of ' plaintiffs had accepted employment for Kunkle Farms ' 1983 cucumber and tomato harvests wh ile still in Ohio following the 1982 harvest . Defendants ' only contact with Texas was one telephone call and one letter which merely advised plaintiffs of the start date of the employment wh ich they had already accepted the prev ious summer in Ohio.' The Fifth Circuit held that ul ' tlhis limited contact alone is insufficient to allow the exercise of specific personal jurisdiction in this case.' Id. HRC does not recruit in Texas or ' anywhere in the Un ited States often ; it primarily recruits T & T residents for positions in T & T , and has never had an employee visit the United States for business. See Rajkumar Declaration, Exhibit A to HRC 'S Motion to Dismiss, Docket Entry No . 14-2 , pp. 3-4 $6 7-9. - 53 - Marketing position , Sarkar 's negligence claim not related to that contact . As Sarkar admits , the acts of negligence occurred in T,12 as did Rajkumar's representation. 3 Sarkar has not established the requ isite minimum contacts between HRC and Texas that give rise to his claims against HRC so as to allow this court properly exercise personal jurisdiction over HRC. Mylonakis, 909 F . Supp . 2d at 707. General Jurisdiction In the Amended Complaint Sarkar appears to allege alternatively that this court has general personal jurisdiction over HRC .1 33 For a Corporation , 'the place of incorporation and ' principal p lace of business are paradigm jurisdiction.' ' Daimler AG, 134 S. Ct. at 760 ( quotations, modifications, and citations omitted) l3 See Plaintiff's Response 2 No . 16, p . 8 . l3 see 3 Amended Complaint, bases for general General jurisdiction may HRC 'S Motion , Docket Entry Docket Entry No . l2 , p. 3 (u Allegations of Jurisdiction Petrotrin's and HRC'S Specific Contacts with Plaintiff' ; p. 8 CA o Allegations of Jurisdiction Petrotrin's and HRC'S General Contact with the United States'). ' The court will address general jurisdiction briefly because Sarkar's response only discusses specific jurisdiction. See Plaintiff 's Response to HRC'S Motion , Docket Entry No . 16, p . 3 . Sarkar's response does argue that ' flor all intents and purposes, 'l the only sign ificant issues that would involve discovery concerns Sarkar 's damages that occurred in Texas .' Id . at 8-97 4 . That is ' irrelevant to the personal jurisdiction analysis. Walden, l34 S . Ct. at 1122 ('However minimal the burden of defending in a ' foreign tribunal, a defendant may not be called upon to do so unless he has had the ' minimal contacts' with that State that are a prerequisite to its exercise of power over him' ( ') quoting Hanson v . Denckla, 78 S . Ct. 1228, 1238 ( 1958)). - 54 - ex ist over a corporation otherw ise, however : court may assert jurisdiction over a foreign corporation 'to hear any and all claims against E itl' only when the corporation's affiliations with the state in which suit is brought are so constant and pervasive 'as to render E it) essentially at home in the forum State.'' Id. at 751 ' ( quoting Goodvear, 131 S. Ct. at 2851) HRC was formed under the laws of T & T and has its principal place of business there .l 4 3 above, are minimal. HRC 'S contacts With Texas , discussed The Fifth Circuit rejected a general jurisdiction argument based on similarly tenuous contacts in Monkton , 768 F .3d at 431-32 . There, the plaintiff argued that the defendant 's contacts with Texas nthrough its website , telephone conversations with ( the plaintiff), and wire transfers to Texas banks' were enough to justify the exercise of general jurisdiction. ' Id . The court found that the defendant bank , incorporated and with its principal p lace of business in the Cayman Islands , was not 'at ' home' in Texas . ' Id . at 432 . HRC does not conduct business in Texas , maintain an office in Texas , employ anyone in Texas , or maintain an agent for serv ice of process Texas . See , e .g ., Johnston v . Mu ltidata Systems International Corpw 523 F.3d 602, 614 ( 5th Cir. 2008) (u do not We believe that these various activities amount l qsee Amended Comp laint, Docket Entry 3 substantial , No. l2, p. 2 f 4; Rajkumar Declaration, Exhibit A to HRC'S Motion to Dismiss , Docket Entry No. 14-2, p. 2 ! 3. - 55 - systematic, and continuous contacts . MDS Canada is not registered to do business in Texas ; does not own , possess or use property in Texas; does not maintain a mailing address bank account in Texas; and does not keep , maintain or store any documents within Texas . While it is true that MDS Canada sells products and services to Texas customers , neither the total amount of sales nor the percentage of annual sales is substantial or regular enough to create a general presence in Texas.' ') HRC'S affiliations with Texas are not nso ' continuos and systematic' as to render ( HRC) essentially at home in Texas .' ' ( citing Goodvear, See Daimler AG , at 2851) at Therefore, the court concludes that HRC does not have sufficient m inimum contacts with Texas give rise to specific or general jurisdiction. See Monkton, 768 F.3d at 430 ( citing Latshaw v . Johnston, 167 F. 208, 3d ( 5th Cir. 1999)). V. Conclusions and Order For the reasons stated above , this court lacks over Defendants . IB 3HRC also Therefore , Defendant argues that Texas jurisdiction Petroleum jurisdiction Company would be unreasonable because it would impose a significant burden on HRC , an alien defendant, and the assertion of jurisdiction would interfere with T & T policies . See HRC 'S Motion to Dismiss , Docket Entry No . 14 , pp . 14-16 . Because the court concludes that neither specific nor general jurisdiction exists to satisfy the minimum contacts prong, it is not necessary to examine the utraditional notions of fair play and substantial justice' prong. See Ruston ' Gas, 9 F .3d at 418-19 . - 56- Trinidad and Tobago Limited's Motion to Dismiss Sanjoy Sarkar's Amended Complaint ( Docket Entry No. l3) is GRANTED and Defendant HRC Associates Limited's Motion to Dismiss Sanjoy Sarkar's Amended Complaint ( Docket Entry No. 14) is GRANTED, and this action will be dismissed for lack of jurisdictionx3 6 SIGNED at Houston , Texas , on this the 23rd day of June, 2016 . r SIM LAKE UNITED STATES DISTRICT JUDGE H6 sarkar's alternative request to sever the cases against each Defendant is rendered moot by this Memorandum Opinion and Order . See Plaintiff's Response to Petrotrin 's Motion , Docket Entry No . 17 , pp . 22-23 7 Plaintiff's Response to HRC 'S Motion , Docket Entry No . 16 , p . 11 .

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