Case: 21-20186 Document: 00516182633 Page: 1 Date Filed: 01/27/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 27, 2022
No. 21-20186
Lyle W. Cayce
Clerk
Danziger & De Llano, L.L.P.,
Plaintiff—Appellant,
versus
Morgan Verkamp, L.L.C.; Frederick M. Morgan, Jr.,
Esquire; Jennifer Verkamp, Esquire,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CV-144
Before Davis, Higginson, and Engelhardt, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Danziger & De Llano, LLP, a Texas resident, sued Morgan Verkamp,
LLC, and two of its members, all non-residents of Texas. The Texas-based
district court granted the defendants’ motion to dismiss for lack of personal
jurisdiction. We AFFIRM.
I.
On January 15, 2020, Danziger & De Llano, LLP, (“Danziger”) filed
a complaint in the United States District Court for the Southern District of
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Texas against Morgan Verkamp, LLC, and two of its members, Frederick M.
Morgan, Jr., and Jennifer Verkamp (collectively “Morgan Verkamp”). 1 The
complaint, which raises claims of fraud, unjust enrichment, tortious
interference with prospective contractual relations, and breach of contract,
alleges the following relevant facts.
Danziger is a Texas-based law firm. Frederick Morgan and Jennifer
Verkamp are attorneys residing in Ohio, and Morgan Verkamp, LLC, is an
Ohio-based law firm. In 2006, Danziger referred two qui tam matters to
Morgan Verkamp. The parties agreed to split the attorneys’ fees in both
cases, with 33 percent going to Morgan Verkamp, 33 percent to Danziger,
and the remaining 34 percent divided in proportion to the hours each firm
worked on the case. The following year, Danziger referred a potential qui tam
relator named Michael Epp to Morgan Verkamp. 2 The parties agreed to split
the fees from the Epp matter in the same manner as the previous cases.
Danziger stopped hearing from Epp in January 2008. However,
Danziger and Morgan Verkamp continued to work together on the other two
qui tam matters. In January 2010, Danziger asked Morgan Verkamp if a
recently publicized qui tam settlement was related to the Epp case, and
Morgan Verkamp replied that it was not. Shortly thereafter, Morgan
Verkamp emailed a fee agreement to Epp. Danziger was not included on that
1
Danziger had previously sued Morgan Verkamp in Pennsylvania, but the Third
Circuit determined that Pennsylvania courts lacked personal jurisdiction over Morgan
Verkamp. See Danziger & De Llano, LLP v. Morgan Verkamp, LLC, 948 F.3d 124 (3d Cir.
2020).
2
Though Danziger’s complaint makes no allegations regarding Epp’s residence,
Morgan Verkamp asserts that “Mr. Epp is a German national who lived in Dubai . . . and
Thailand” during the relevant time periods. Danziger does not challenge this statement,
and the district court accepted it. Further, there is evidence in the record supporting this
assertion. For purposes of this appeal, the important fact is that Danziger does not allege,
and we have no reason to infer, that Epp had any connection to Texas other than Danziger.
2
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email, though Morgan Verkamp assured Epp that Danziger would be
“reasonably compensated.”
In March 2010, Morgan Verkamp filed suit on Epp’s behalf in a
Pennsylvania federal court. Morgan Verkamp never informed Danziger that
it was representing Epp. In 2016, while investigating a lawsuit against Morgan
Verkamp related to one of the other qui tam cases that the parties had worked
on together, 3 Danziger learned that Morgan Verkamp had received over $5
million in attorneys’ fees as a result of its representation of Epp.
Danziger argues that Morgan Verkamp owes it $2,133,333, in
accordance with the firms’ alleged fee-sharing agreement. After Danziger
filed this complaint, Morgan Verkamp moved to dismiss the case for both
lack of personal jurisdiction and failure to state a claim. The district court
concluded that dismissal was appropriate on personal jurisdiction grounds
and accordingly granted the motion. Danziger appealed.
II.
“[O]n a motion to dismiss for lack of jurisdiction, uncontroverted
allegations in the plaintiff’s complaint must be taken as true.” Bullion v.
Gillespie, 895 F.2d 213, 217 (5th Cir. 1990). For purposes of this appeal,
Morgan Verkamp does not dispute Danziger’s factual allegations. “A district
court’s dismissal of a suit for lack of personal jurisdiction where the facts are
not disputed is a question of law, which is reviewed de novo.” Herman v.
Cataphora, Inc.,
730 F.3d 460, 464 (5th Cir. 2013). “The party invoking the
court’s jurisdiction bears the burden of establishing that a defendant has the
3
The two qui tam matters that Danziger initially referred to Morgan Verkamp
involved relators named Vanderslice and Galmines. Although the two firms split the fees
from the Vanderslice matter in accordance with their arrangement, Morgan Verkamp
initially declined to pay Danziger for its work on the Galmines matter, citing ethical
concerns. Danziger filed suit, and the parties eventually settled.
3
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requisite minimum contacts with the forum state to justify the court’s
jurisdiction.” Id. “Where, as here, the court rules on a motion to dismiss for
lack of personal jurisdiction without holding an evidentiary hearing, that
burden requires only that the nonmovant make a prima facie showing.”
Id.
Danziger does not allege that any of the defendants are residents of
Texas. “A nonresident defendant is subject to personal jurisdiction in a
federal diversity suit to the extent permitted by the laws of the forum state
and considerations of constitutional due process.” Command-Aire Corp. v.
Ontario Mech. Sales & Serv. Inc., 963 F.2d 90, 93 (5th Cir. 1992). “Because
the Texas long-arm statute extends to the limits of federal due process, the
two-step inquiry collapses into one federal due process analysis.” Sangha v.
Navig8 ShipManagement Priv. Ltd.,
882 F.3d 96, 101 (5th Cir. 2018) (citation
omitted). “Due process requires that the defendant have ‘minimum
contacts’ with the forum state (i.e., that the defendant has purposely availed
himself of the privilege of conducting activities within the forum state) and
that exercising jurisdiction is consistent with ‘traditional notions of fair play
and substantial justice.’”
Id. (citation omitted). Because Danziger is
“bringing multiple claims that arise out of different forum contacts of the
defendant,” it “must establish specific jurisdiction for each claim.” Seiferth
v. Helicopteros Atuneros, Inc.,
472 F.3d 266, 274 (5th Cir. 2006).
III.
Danziger asserts three intentional tort claims against Morgan
Verkamp: fraud, unjust enrichment, and tortious interference with
prospective contractual relations. To establish personal jurisdiction in
intentional tort cases, it is “insufficient to rely on a defendant’s ‘random,
fortuitous, or attenuated contacts’ or on the ‘unilateral activity’ of a plaintiff.
A forum State’s exercise of jurisdiction over an out-of-state intentional
tortfeasor must be based on intentional conduct by the defendant that creates
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the necessary contacts with the forum.” Walden v. Fiore, 571 U.S. 277, 286
(2014) (citation omitted).
A.
The Supreme Court most recently addressed the issue of personal
jurisdiction over intentional tortfeasors in Walden v. Fiore. That case involved
a Georgia law enforcement officer who seized cash from two Nevada
residents passing through Georgia and refused to return it to them for a
prolonged period. 571 U.S. at 279-80. The defendant-petitioner “knew his
allegedly tortious conduct in Georgia would delay the return of funds to
plaintiffs with connections to Nevada.”
Id. at 279. Nonetheless, the Court
held that the officer “lack[ed] the ‘minimal contacts’ with Nevada that are a
prerequisite to the exercise of jurisdiction over him.”
Id. at 288 (citation
omitted). After all, the Court explained, “no part of petitioner’s course of
conduct occurred in Nevada. Petitioner approached, questioned, and
searched respondents, and seized the cash at issue, in the Atlanta airport. . . .
Petitioner never traveled to, conducted activities within, contacted anyone
in, or sent anything or anyone to Nevada.”
Id. at 288-89. Thus, “when
viewed through the proper lens—whether the defendant’s actions connect
him to the forum—petitioner formed no jurisdictionally relevant contacts
with Nevada.”
Id. at 289.
Walden also explained that the Court’s prior decision in Calder v.
Jones “illustrates the application of [the] principles” that govern this type of
case. Id. at 286. In Calder, a California resident sued two Florida residents for
libel, based on an article that they wrote and edited in Florida and published
in a national magazine with a large readership in California.
465 U.S. 783,
784-86 (1984). Although they did not live in California, the Calder defendants
nonetheless had significant contacts with the state:
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The allegedly libelous story concerned the California activities
of a California resident. It impugned the professionalism of an
entertainer whose television career was centered in California.
The article was drawn from California sources, and the brunt
of the harm, in terms both of respondent’s emotional distress
and the injury to her professional reputation, was suffered in
California. In sum, California is the focal point both of the story
and of the harm suffered.
Id. at 788–89. Given “the ‘effects’ of [the defendants’] Florida conduct in
California,” the Court concluded that jurisdiction is “proper in California.”
Id. at 789.
Walden clarified and elaborated on Calder’s holding. “The crux of
Calder,” the Court explained in Walden, “was that the reputation-based
‘effects’ of the alleged libel connected the defendants to California, not just
to the plaintiff.” Walden, 571 U.S. at 287. Because “the reputational injury
caused by the defendants’ story would not have occurred but for the fact that
the defendants wrote an article for publication in California that was read by
a large number of California citizens,”
id. at 287-88, “the ‘effects’ caused by
the defendants’ article—i.e., the injury to the plaintiff’s reputation in the
estimation of the California public—connected the defendants’ conduct to
California, not just to a plaintiff who lived there,”
id. at 288. “That
connection, combined with the various facts that gave the article a California
focus, sufficed to authorize the California court’s exercise of jurisdiction.”
Id. Thus, under Calder and Walden, “mere injury to a forum resident is not a
sufficient connection to the forum. . . . The proper question is not where the
plaintiff experienced a particular injury or effect but whether the defendant’s
conduct connects him to the forum in a meaningful way.”
Id. at 290.
We applied Walden in Sangha v. Navig8 ShipManagement Private Ltd.
In that case, Captain Sangha, a Texas-based seaman, lost his job at Marine
Consulting and then sued Navig8, a foreign entity, for tortious interference
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with a contract. 882 F.3d at 99, 102-03. Sangha argued that Texas courts had
specific personal jurisdiction over Navig8, based on the following: (1) “email
communications from two Navig8 representatives located outside the
country to Cpt. Sangha’s then-supervisor in Alabama”; (2) “an employment
contract between Cpt. Sangha and Marine Consultants [sic] allegedly
confected in Houston”; (3) “that the email communications [from Navig8
to Captain Sangha’s former supervisor] were targeted at a contract formed
in Texas”; and (4) “that the emails concerned work that was to be performed
in Texas.”
Id. at 103. We held that these “contacts . . . are legally insufficient
to support a finding of specific jurisdiction.”
Id. “Even though Navig8’s
email communications happened to affect Cpt. Sangha while he was at the
Port of Houston, this single effect is not enough to confer specific jurisdiction
over Navig8.”
Id. After all, “mere injury to a forum resident is not a sufficient
connection to the forum.”
Id. (citing Walden,
571 U.S. at 290). “The proper
question is not whether Cpt. Sangha experienced an injury or effect in a
particular location, but whether Navig8’s conduct connects it to the forum
in a meaningful way.” Id. at 103-04. And because “Cpt. Sangha’s presence
in the Gulf of Mexico/Port of Houston is largely a consequence of his
relationship with the forum, and not of any actions Navig8 took to establish
contacts with the forum,” Sangha “failed to establish a prima facie case of
personal jurisdiction.” Id. at 104.
Walden and Sangha largely resolve this issue. Danziger alleges in
support of its fraud and unjust enrichment claims (1) that Morgan Verkamp
failed to disclose its representation of Epp when responding to an unsolicited
email from Danziger about the Epp case and (2) that Morgan Verkamp
continued not to disclose its representation of Epp while the two firms
worked together on other cases. Danziger alleges in support of its tortious
interference with prospective contractual relations claim that Morgan
Verkamp emailed Epp (who is not alleged to have been in Texas) to convince
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him not to formalize his relationship with Danziger. Thus, although Morgan
Verkamp’s allegedly tortious conduct may have affected Danziger in Texas,
none of this conduct occurred in Texas. Cf. Walden, 571 U.S. at 288-89 (“[N]o
part of [the defendant’s] course of conduct occurred in Nevada. . . .
Petitioner never traveled to, conducted activities within, contacted anyone
in, or sent anything or anyone to Nevada.”); Sangha,
882 F.3d at 103 (“Even
though Navig8’s email communications happened to affect Cpt. Sangha
while he was at the Port of Houston, this single effect is not enough to confer
specific jurisdiction over Navig8.”). The only act or omission of Morgan
Verkamp that is even plausibly connected to Texas is Morgan Verkamp’s
allegedly fraudulent reply to Danziger’s unsolicited email about Epp, which
one could characterize as having been “sent . . . to” Texas. Walden,
571 U.S.
at 289. However, we have held that a state does not have personal jurisdiction
over a non-resident who “merely answer[s] one uninitiated and unsolicited
phone call.” Wilson v. Belin,
20 F.3d 644, 649 (5th Cir. 1994). Danziger offers
no reason why the same should not hold true for a defendant who merely
answers one unsolicited email. Accordingly, this email does not meaningfully
connect Morgan Verkamp to Texas. And because none of Morgan
Verkamp’s allegedly tortious conduct meaningfully connects it to Texas,
Texas courts do not have jurisdiction over Danziger’s intentional tort claims
against Morgan Verkamp. See Walden,
571 U.S. at 290 (“The proper
question is not where the plaintiff experienced a particular injury or effect but
whether the defendant’s conduct connects him to the forum in a meaningful
way.”).
B.
Danziger does not cite Walden or Sangha in its opening brief. Instead,
Danziger primarily relies on our decisions in Wien Air Alaska, Inc. v. Brandt
and Trois v. Apple Tree Auction Center, Inc. In Wien Air, a Texas-based airline
sued a German resident for fraud. 195 F.3d 208, 209, 211 (5th Cir. 1999). The
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defendant had “performed several tortious actions outside of Texas” that
“had foreseeable effects in the forum and were directed at the forum. These
contacts take the form of letters, faxes, and phone calls to Texas . . . whose
contents contained fraudulent misrepresentations and promises and whose
contents failed to disclose material information.” Id. at 212. Though the
defendant argued that “communications directed into a forum standing
alone are insufficient to support a finding of minimum contacts,” we held
that “[w]hen the actual content of communications with a forum gives rise
to intentional tort causes of action, this alone constitutes purposeful
availment. The defendant is purposefully availing himself of ‘the privilege of
causing a consequence’ in Texas.”
Id. at 213. Similarly, in Trois, the
defendant had “participated in a conference call [with a Texas resident] . . .
and allegedly misrepresented certain things over the phone.”
882 F.3d 485,
490-91 (5th Cir. 2018). Although the defendant “did not initiate the
conference call to Trois in Texas,” “he was the key negotiating party who
made representations regarding his business in a call to Texas.”
Id. at 491.
Since “that intentional conduct . . . led to this litigation,” we held that the
defendant “should have reasonably anticipated being haled into Texas
court.”
Id.
This case is very different from both Wien Air and Trois. In Wien Air,
“numerous calls, letters and faxes were made by [the defendant] to Wien Air
in Texas, and . . . these calls contained the promises, assurances, and
representations that are at the heart of the lawsuit.” 195 F.3d at 212. And in
Trois, the defendant was “a willing participant on a conference call [with a
Texas resident] who actively engaged in conversation regarding his
business,” making him “akin to an initiator of a phone call as contrasted to
the recipient of an uninitiated, unsolicited phone call.” 882 F.3d at 491. Here,
by contrast, Morgan Verkamp is not alleged to have either initiated or
“actively engaged” in a single communication directed into Texas, let alone
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“numerous” ones. As explained above, its only action that was even plausibly
directed into Texas was a reply to an unsolicited email, which is not a
sufficient contact for jurisdiction under our precedents. See Wilson, 20 F.3d
at 649. Because Morgan Verkamp’s alleged contacts with Texas were
significantly less numerous and less purposeful than those of the defendants
in Wien Air and Trois, neither of those decisions controls this case. See Miss.
Interstate Express, Inc. v. Transpo, Inc.,
681 F.2d 1003, 1006 (5th Cir. 1982)
(“[W]hether the minimum contacts are sufficient to justify subjection of the
non-resident to suit in the forum is determined . . . under the particular facts
upon the quality and nature of the activity with relation to the forum state.”).
The other decisions that Danziger cites also prove unavailing. In
support of its argument that Texas courts have personal jurisdiction over its
fraud and unjust enrichment claims, Danziger cites Streber v. Hunter and
Walk Haydel & Associates, Inc. v. Coastal Power Production Co. We did note in
Streber that an attorney’s “failure to disclose material information from
Louisiana to [a client] in Texas also forms a basis for personal jurisdiction.”
221 F.3d 701, 718 n.25 (5th Cir. 2000). However, we did not say that a state
has personal jurisdiction over every non-resident that fails to disclose
material information to a resident; rather, we emphasized that the case
involved a lawyer who “continually communicated with” his “client in
another forum.”
Id. (citation omitted). Moreover, numerous other contacts
supported Texas’s jurisdiction in that case—the Louisiana lawyer had given
“tax advice that he knew would be received by a Texas client” and had
allegedly committed “malpractice . . . during [a] 1993 mediation, which took
place in Houston.”
Id. at 718. Similarly, in Walk Haydel, we held that
Louisiana courts had personal jurisdiction over an Illinois law firm that had
failed to disclose a conflict of interest to its Louisiana client in not only “over
a hundred . . . telephone calls, faxes, and letters” that it had sent to its client
in Louisiana but also a meeting that had occurred in Louisiana.
517 F.3d 235,
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237, 243-45 (5th Cir. 2008). As with Wien Air and Trois, Streber and Walk
Haydel involve contacts that are significantly more numerous and more
purposeful than the contacts alleged in this case.
Danziger further argues that Central Freight Lines Inc. v. APA
Transportation Corp. and Access Telecom, Inc. v. MCI Telecommunications Corp.
show that Texas courts have personal jurisdiction over its tortious
interference with prospective contractual relations claim. In Central Freight,
a New Jersey-based freight carrier allegedly interfered with a contract
between the plaintiff, a Texas-based freight carrier, and Dell Computers, a
Texas-based computer manufacturer. 322 F.3d 376, 379, 384 (5th Cir. 2003).
Emphasizing that “Texas is not only [the plaintiff’s] home state; it is also the
primary location of [its] business relationship with Dell Computers,” we held
that “it is not unreasonable for [the non-resident defendant] to be haled into
court in the Western District of Texas for alleged intentional interference
with the contractual relationship of two Texas-based companies whose
business dealings are based in Texas.”
Id. at 384. Here, Epp is not alleged to
have been a Texas resident, and though Danziger argues that Morgan
Verkamp knew that Danziger would have represented Epp out of its Houston
office, a Texas law firm’s representation of a non-Texas person in a non-Texas matter is not “based in Texas” in the same way that a relationship
between a Texas manufacturer and a Texas shipper is “based in Texas.”
In Access Telecom, a foreign telephone company allegedly “violated
U.S. antitrust law by harming a Texas business through the willful
cancellation of a necessary portion of that business’s service.” 197 F.3d 694,
701, 719 (5th Cir. 1999). The foreign telephone company’s “lines ran right
up and into Texas for the express purpose of serving Texas residents with
Mexican phone service, a service [for] which it received millions of dollars a
month in revenue,” and we held that the “allegation that [the foreign
company] shut down these lines in order to harm a Texas business whose
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services were legal in Mexico suffices to confer personal jurisdiction over [the
foreign company] for the injuries suffered in Texas.” Id. at 719. Once again,
the non-resident defendant’s forum contacts in Access Telecom are
significantly more numerous and significantly more purposeful than Morgan
Verkamp’s contacts with Texas in this case.
…
Under Walden and Sangha, Texas courts do not have personal
jurisdiction over Danziger’s intentional tort claims. The cases that Danziger
relies on do not provide reason to think otherwise. Because none of Morgan
Verkamp’s allegedly tortious conduct either occurred in Texas or was
otherwise meaningfully connected to the state, the district court correctly
dismissed Danziger’s intentional tort claims for lack of personal jurisdiction.
IV.
Danziger also asserts a claim against Morgan Verkamp for breach of
contract. When determining whether a court has personal jurisdiction over a
breach of contract claim, “only those acts which relate to the formation of
the contract and the subsequent breach are relevant,” including “prior
negotiations and contemplated future consequences, along with the terms of
the contract and the parties’ actual course of dealing.” Trois v. Apple Tree
Auction Ctr., Inc., 882 F.3d 485, 489 (5th Cir. 2018) (citations omitted).
Importantly, “merely contracting with a resident of the forum state does not
establish minimum contacts.” Moncrief Oil Int’l Inc. v. OAO Gazprom,
481
F.3d 309, 311 (5th Cir. 2007). Further, “a plaintiff’s unilateral activities in
Texas do not constitute minimum contacts where the defendant did not
perform any of its obligations in Texas, the contract did not require
performance in Texas, and the contract is centered outside of Texas.”
Id. at
312. “An exchange of communications in the course of developing and
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carrying out a contract also does not, by itself, constitute the required
purposeful availment of the benefits and protections of Texas law.” Id.
Danziger relies primarily on our decision in Central Freight. That case
involved not only the contractual interference claim described above but also
a breach of contract claim, both brought by a Texas-based freight carrier
against a New Jersey-based carrier in a Texas court. 322 F.3d at 379. On
appeal, we explained that because “all of the formal negotiations took place
via telephone and written correspondence between the two parties from their
respective headquarters,” the New Jersey carrier could “not really dispute
the fact that, during the course of negotiations, [it] specifically and
deliberately ‘reached out’ to a Texas corporation by telephone and mail with
the deliberate aim of entering into a long-standing contractual relationship
with a Texas corporation.”
Id. at 382. Moreover, the New Jersey carrier
“knew that it was affiliating itself with an enterprise based primarily in
Texas” and “presumably knew that many of [the Texas carrier’s] customers
would . . . come from that state.”
Id. Because the New Jersey carrier thus
“purposefully directed its in-state and out-of-state activities at a resident of
the forum . . . with the aim of establishing a long-term association with that
resident and with the foreseeable and intended result of causing economic
activity within the forum state,” we held that the carrier “should have
reasonably anticipated being haled into court in Texas on breach of contract
claims related to that [contract], notwithstanding [its] relatively brief physical
presence in the state.”
Id. at 383.
Danziger also cites Electrosource, Inc. v. Horizon Battery Technologies,
Ltd. In that case, “the actual course of dealing between [the plaintiff] and
[the defendant] involved wide reaching contacts and contemplated future
consequences within the forum state.” 176 F.3d 867, 872 (5th Cir. 1999).
Specifically, the defendant “was attempting to acquire technology from [the
plaintiff] in Texas for the establishment of manufacturing centers in India.”
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Id. As part of their agreement, the plaintiff “contracted to train [the
defendant’s] employees, aid in designing [the defendant’s] manufacturing
facilities, provide technical support and regulate quality control of [the
defendant’s] products.”
Id. The parties “planned to participate in each of
these functions either wholly or in substantial part in Texas.”
Id. We
ultimately concluded that the defendant had “engaged in such ‘continuing
and wide-reaching contacts’ with [the plaintiff] in Texas, and committed
itself to such future contacts in the forum, that it should reasonably have
anticipated being haled into court there.”
Id.
Morgan Verkamp calls our attention to several cases in response. In
Trois, we concluded that because the “contract was executed and performed
solely in Ohio” and the “only alleged Texas contacts related to contract
formation or breach are [the defendant’s] conference calls negotiating the
agreement while [the plaintiff] was in Texas,” Texas courts did “not have
personal jurisdiction over the defendants regarding the breach-of-contract
claim.” 882 F.3d at 489. Similarly, in Moncrief Oil, a dispute involving several
contracts that “were executed in Russia, with a Russian corporation,
concerning a Russian joint venture, to develop a Russian gas field,” we
rejected the argument that states have personal jurisdiction over “breach of
contract case[s] where a nonresident enters into a contract with a known
resident of the forum state, if it is reasonably foreseeable that the resident will
perform a material part of its obligations in the forum state and thereby cause
business activity in the forum state.” 481 F.3d at 312. We explained that the
plaintiff, a Texas resident, had simply “agreed to perform analysis, without
any discussion of where it would be done. The contract was silent as to
location.”
Id. at 313. Moreover, “[g]iven the nature of the work, there’s no
indication that the location of the performance mattered.”
Id. Moncrief Oil
also distinguished Central Freight, explaining that the contract in that case
had “contemplated that the plaintiff would make shipments from Texas on
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behalf of third-party Texas customers. The plaintiff’s Texas location was
strategically advantageous to the defendant and was the basis for the
agreement, suggesting that the defendant had purposefully availed itself of
doing business in Texas.” Id. (citation omitted).
Finally, Holt Oil & Gas Corp. v. Harvey featured an Oklahoma
defendant that had “entered into a contract with . . . a Texas corporation”;
“sent a final revised joint operating agreement from Oklahoma to Texas”;
“sent three checks from Oklahoma to Texas in partial performance of its
contractual obligations”; and “engaged in extensive telephonic and written
communication with [the Texas corporation].” 801 F.2d 773, 776, 778 (5th
Cir. 1986). We concluded that these contacts were insufficient for Texas to
exercise personal jurisdiction over the defendant.
Id. at 778. As we observed,
“Oklahoma law would govern the agreement,” and “the material
performance occurred in Oklahoma.”
Id. Additionally, we determined that
“the exchange of communications between Texas and Oklahoma in the
course of developing and carrying out the contract was . . . insufficient to
constitute purposeful availment of the benefits and protections of Texas
law.”
Id. After all, “[t]hese communications to Texas rested on nothing but
‘the mere fortuity that [Holt] happens to be a resident of the forum.’”
Id.
(second alteration in original).
This dispute is closer to Trois, Moncrief Oil, and Holt Oil, the cases in
which the forum state did not have jurisdiction, than it is to Central Freight
and Electrosource, in which the forum state had jurisdiction. Danziger alleges
in support of its breach of contract claim that: (1) Epp reached out to
Danziger about a potential qui tam matter; (2) Danziger arranged two
conference calls between itself, Morgan Verkamp, and Epp; (3) Danziger and
Morgan Verkamp agreed telephonically to split any fees they received from
their work on the Epp matter; (4) the parties exchanged several emails with
each other and Epp regarding their potential representation of Epp; and (5)
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Morgan Verkamp ultimately represented Epp in a Pennsylvania lawsuit but
refused to split the fees that it received from the case. 4 Thus, unlike
Electrosource, this case does not involve “wide reaching contacts and
contemplated future consequences within the forum state.” 176 F.3d at 872.
And unlike Central Freight, “[t]he plaintiff’s Texas location” was not
“strategically advantageous to the defendant . . . , suggesting that the
defendant had purposefully availed itself of doing business in Texas.”
Moncrief Oil,
481 F.3d at 313 (describing the decision in Central Freight).
Rather, as in Trois, “[t]he only alleged Texas contacts related to contract
formation or breach are [the defendant’s] conference calls negotiating the
agreement while [the plaintiff] was in Texas.” 882 F.3d at 489; see also
McFadin v. Gerber,
587 F.3d 753, 760 (5th Cir. 2009) (“[C]ommunications
relating to the performance of a contract themselves are insufficient to
establish minimum contacts.”). And like Holt Oil, the defendant’s
“communications to Texas rested on nothing but ‘the mere fortuity that [the
plaintiff] happens to be a resident of the forum.’”
801 F.2d at 778 (citation
omitted). As we held in Moncrief Oil, “mere fortuity that one company
happens to be a Texas resident . . . is not enough to confer jurisdiction.”
481
F.3d at 313. 5
4
Notably, Danziger does not allege that the agreement required it to perform any
work. Indeed, Danziger is currently seeking to recover for breach of this contract even
though it does not allege that it performed any legal work for Epp, in Texas or otherwise.
5
Danziger also points out that the alleged contract did not have a choice-of-law
provision. However, the absence of a choice-of-law provision has no impact on our
jurisdictional analysis in this case. While a choice-of-law provision specifying a non-Texas
forum might indicate that Texas courts do not have personal jurisdiction over the
defendant, see Holt Oil, 801 F.2d at 778; Moncrief Oil,
481 F.3d at 313, we have explained
that a contract’s lack of a choice-of-law clause gives the defendant neither “specific notice
that it might be amenable to suit in Texas” nor “reason to think that it could not be haled
into court in Texas.” Cent. Freight Lines Inc.,
322 F.3d at 383 (emphasis omitted).
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Case: 21-20186 Document: 00516182633 Page: 17 Date Filed: 01/27/2022
No. 21-20186
Danziger was the only connection between the alleged contract and
Texas. Morgan Verkamp did not perform in Texas and was not required to
perform in Texas. Moreover, this alleged contract to split the fees arising
from a non-Texas law firm’s legal representation of a non-Texas client in a
non-Texas case was centered outside of Texas. As previously stated, “a
plaintiff's unilateral activities in Texas do not constitute minimum contacts
where the defendant did not perform any of its obligations in Texas, the
contract did not require performance in Texas, and the contract is centered
outside of Texas.” Moncrief Oil, 481 F.3d at 312. Accordingly, the district
court correctly dismissed Danziger’s breach of contract claims for lack of
personal jurisdiction.
V.
For the foregoing reasons, we AFFIRM the district court’s order
granting Morgan Verkamp’s motion to dismiss Danziger’s complaint for lack
of personal jurisdiction.
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