IN THE 200th DISTRICT COURT
IN AND FOR TRAVIS COUNTY,
TEXAS
MICHAEL CROW,
CASE NO:
D-1-GN-xx-xxxxx
Plaintiff,
vs.
EDUARDO ORANGE and
MONICA ORANGE and/or d/b/a
TABBY CUSTOM AUTO, INC.,
Defendants
_____________________________________/
DEFENDANTS’ MOTION TO DISMISS
Defendants, EDUARDO ORANGE, MONICA ORANGE and/or d/b/a TABBY
CUSTOM AUTO, INC., pursuant to the Texas Rules of Civil Procedure, hereby file this
Motion to Dismiss the Petition filed by Plaintiff, MICHAEL CROW, and in support
thereof, state as follows:
SUMMARY OF ARGUMENT
For the reasons set forth below, Plaintiff’s Petition should be dismissed, as the
State of Texas does not have personal jurisdiction over any of the Defendants in this case.
First, Plaintiff’s failure to attach a copy of the subject contract is revealing for
several different reasons. Most notable is the fact that the parties agreed that the forum
for any disputes arising from the sale of the subject automobile would take place in
Miami-Dade County, Florida. This agreement is expressly stated in the parties’ contract,
a copy of which is attached hereto and incorporated herein as Exhibit “A.” Plaintiff in
this case was fully aware of the contract’s forum-selection clause, and agreed to be bound
by its terms. Plaintiff’s failure to attach a copy of the contract also conceals the fact that
CASE NO: D-1-GN-xx-xxxxx
the parties agreed – and the contract stipulates – that the automobile was being sold “as
is” and Defendants were not making any warranties concerning the condition or “showquality” of the automobile.
Second, the Petition concedes that the Defendants do not reside in Texas, and
Plaintiff does not allege that the Defendants performed any acts whatsoever in Texas. In
fact, neither of the individual Defendants in this case have ever been to Texas. Moreover,
the Petition concedes that it was Plaintiff who initiated contact with the Defendants, and
it was Plaintiff who requested that the Defendants contact him
Finally, due process requirements prevent the Defendants from being required to
defend this action in Texas, because Defendants have not been shown to have the
requisite minimum contacts with Texas and the burden on Defendants in having to
defend this action in Texas substantially outweighs any other competing factor.
FORUM SELECTION CLAUSE IN THE SUBJECT CONTRACT
Federal courts have routinely held that forum-selection clauses – such as the one
found in the contract between Plaintiff and Defendant, are valid and enforceable. This
issue alone warrants dismissal of Plaintiff’s Petition, with prejudice.
The United States Supreme Court has held that parties may stipulate to litigate
disputes within a particular forum. See Burger King v. Rudzewicz, 471 U.S. 462, 475-76,
105 S.Ct. 2174 (1985). In Burger King, the Supreme Court noted:
[P]articularly in the commercial context, parties frequently
stipulate in advance to submit their controversies for resolution
within a particular jurisdiction. See National Equipment Rental,
Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354
(1964). Where such forum-selection provisions have been obtained
through “freely negotiated” agreements and are not “unreasonable
and unjust,” The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15,
-2-
CASE NO: D-1-GN-xx-xxxxx
92 S.Ct. 1907, 1916, 32 L.Ed.2d 513 (1972), their enforcement
does not offend due process.
See Footnote 14.
Plaintiff’s failure to attach a copy of the subject contract to his Petition, despite
asserting claims based on an alleged breach of contract, appears to be a thinly veiled
attempt to bypass the contract’s forum selection clause and the requirement that this
dispute be litigated in Miami-Dade County, Florida.
TEXAS LONG ARM STATUTE AND DEFENDANTS’ DUE PROCESS RIGHTS
A Texas court may exercise jurisdiction over a non-resident only if two conditions
are satisfied. First, the Texas long-arm statute must authorize the exercise of jurisdiction.
Second, the exercise of jurisdiction must be consistent with federal and state
constitutional guarantees of due process. Schlobohm v.Schapiro, 784 S.W.2d 355, 356
(Tex. 1990).
Essentially, the issue of whether this Court has personal jurisdiction over the
Defendants in this case rests solely on a single question. That is, whether it is consistent
with the U.S. Constitutional requirements of due process for Texas to assert personal
jurisdiction over the non-resident Defendants in this case.
Under the federal Constitutional test of due process, a state may assert personal
jurisdiction over a nonresident defendant if: (1) the defendant has purposefully
established minimum contacts with the forum state, and (2) the exercise of jurisdiction
comports with fair play and substantial justice. Burger King v. Rudzewicz, 471 U.S. 462,
475-76, 105 S.Ct. 2174 (1985).
Moreover, a court is required to evaluate the “minimal contacts” that might
establish jurisdiction in light of other legal factors, in order to determine whether a
-3-
CASE NO: D-1-GN-xx-xxxxx
finding of personal jurisdiction comports with principles of fair play and substantial
justice. Schlobohm, 784 S.W.2d at 358. These factors include: (1) the burden on the
defendant; (2) the interests of the forum state in adjudicating the dispute; (3) the
plaintiff's interest in obtaining convenient and efficient relief; (4) the interstate judicial
system's interest in obtaining the most efficient resolution of controversies; and (5) the
shared interest of the several States in furthering fundamental substantive social policies.
In this case, due process requirements prevent the Defendants from being required
to defend this action in Texas, because Defendants have not been shown to have the
requisite minimum contacts with Texas.
Even if minimal contacts with Texas are found, the burden on the Defendants,
who are married and have two young children, having to litigate in Texas does not
comport with the principles of fair play and substantial justice. Just as important, the
Plaintiff in this case actively procured the purchase / sale of the subject automobile in
Florida, and agreed to litigate any disputes arising from the purchase / sale in MiamiDade County, Florida.
CONCLUSION
Plaintiff’s Petition for relief should be dismissed, with prejudice, for several
reasons, most notably because the parties in this case expressly agreed to resolve any
disputes concerning the subject automobile in Miami-Dade County, Florida. The Plaintiff
was fully aware of this forum selection clause when he executed the contract, and the
Supreme Court has expressly found such forum selection clauses to be valid and
enforceable.
-4-
CASE NO: D-1-GN-xx-xxxxx
Nevertheless, Texas does not have personal jurisdiction over the Defendants in
this case, as the Defendants never initially sought out potential buyers in Texas, and did
not contemplate being hauled into court in Texas. Finally, due process requirements
necessitate that the Petition be dismissed, due to the significant burden of the Defendants
being forced to litigate this matter in Texas.
WHEREFORE, in view of the foregoing, Defendants, EDUARDO ORANGE,
MONICA ORANGE and/or d/b/a TABBY CUSTOM AUTO, INC, respectfully request
this Court dismiss this case, with prejudice, and grant any further relief this Court deems
just and appropriate.
Dated this ____ day of February, 2010.
________________________
-5-