70 F. App'x 185 | 5th Cir. | 2003
Before H IGGINBOTHAM , S MITH , and Defendant Thomas King appeals the denial
C LEMENT , Circuit Judges. of his F ED . R. C IV . P. 12(b)(2) motion to dis- miss for lack of personal jurisdiction. Finding P ER C URIAM : [*] published and is not precedent except under the [*] Pursuant to 5 TH C IR . R. 47.5, the court has limited circumstances set forth in 5 TH C IR . R. determined that this opinion should not be 47.5.4. no error, we affirm. before delivery to Texas. On appeal, King [1]
contends that Beagles never proved jurisdic- I. tion by a preponderance of the evidence. Plaintiff Beagles and Elliott Enterprises, Felch v. Transportes Lar-Mex SA De CV , 92 LLC (“Beagles”), a Texas-based company, F.3d 320, 326 (5th Cir. 1996). contracted with Florida Aircraft Exchange, Inc. (“FAE”), for the purchase and modifica- II. tion of a Beechcraft Duke Aircraft. FAE of- We review de novo a district court’s ex- ficers King and John Rourke signed the con- ercise of personal jurisdiction over a non- tract. After FAE allegedly breached the agree- resident defendant. Nuovo Pignone, SpA v. ment, Beagles sued FAE and King, premising Storman Asia M/V , 310 F.3d 374, 378 (5th liability against the latter on an alter ego the- Cir. 2002). Where, as here, the court denies ory. Separately, Beagles alleged that King the motion to dismiss without holding an evi- was liable based on an oral promise to guar- dentiary hearing, the plaintiff must make only antee performance, made after FAE had a prima facie showing of the facts on which breached the original contract. jurisdiction is predicated. Id. The district
court should accept as true the plaintiff’s “un- FAE and King filed a rule 12(b)(2) motion controverted allegations, and resolve in [its] to dismiss for lack of personal jurisdiction. In favor all conflicts between the facts contained finding jurisdiction over FAE, the district in the parties’ affidavits and other documen- court relied on the company’s contractual agreement to deliver the aircraft to Texas and on a forum selection clause naming Tarrant [1] Because King made this oral promise for his own benefit, the court determined that the Statute County, Texas, as the site of litigation. As to
of Frauds did not bar its admission. BMC Indus., King, the court found that Beagles had estab- Inc. v. Barth Indus., Inc. , 160 F.3d 1322, 1338 lished a prima facie case of alter ego liability. (11th Cir. 1998) (“Under the statute of frauds, Later, in the pretrial order, FAE and King where the main purpose of the guarantor is to ob- stipulated that “there are presently no pending tain some benefit or serve some interest of its own jurisdictional issues.” rather than to gain some advantage for the beneficiary, that promise is considered ‘direct,’
At trial, the district court found FAE and and remains beyond the reach of the statute.”). King jointly and severally liable. Without dis- Insofar as King argues that the Statute of Frauds cussing whether FAE’s corporate veil should bars the oral promise because it was made after be pierced, the court determined that King had FAE’s breach, King does not controvert the court’s finding that King sought to “prevent a “agreed to be personally responsible for seeing
confrontation between plaintiff and FAE at a that the performance was completed.” This crucial point in King’s maneuvers to liquidate finding was made as a result of King’s oral FAE for his personal gain.” In other words, promise personally to guarantee the contract if King’s oral promise was made for self-interested Beagles allowed the airplane to be transported reasons, despite FAE’s pre-existing breach. Cf. from Florida to a new hangar in Mississippi, id. at 1337 n.30 (“The likelihood that someone would assume liability for an obligation that was already in default is too minute to permit such a promise to be enforced absent a writing to prove its existence.”).
tation.” Id. If a prima facie showing is used Rather, he contends that at trial, Beagles failed to establish personal jurisdiction, the plaintiff to prove personal jurisdiction. Instead of rely- must nevertheless establish personal jurisdic- ing on an alter ego theory of liability, the court tion at trial by a preponderance of evidence. found that King personally assumed the con- Felch , 92 F.3d at 326; DeMeloe v. Touche tract in a separate oral promise. In sum, the Marine, Inc. , 711 F.2d 1260, 1271 n.12 (5th district court saw no need to decide whether Cir. 1983). FAE’s corporate veil should be pierced.
Generally, personal jurisdiction over a cor- King’s argument is tarnished by his pretrial porate officer such as King cannot be predicat- order stipulation that “[t]here are presently no ed on jurisdiction over the corporation. Stuart pending jurisdictional issues.” Though King v. Spademan , 772 F.2d 1185, 1197 (5th Cir. pled lack of personal jurisdiction in his an- 1985). Jurisdiction may be asserted, however, swer, F ED . R. C IV . P. 8(c), his abandonment of where the corporation is the alter ego of the this defense in the pretrial order is tantamount officer. Id. This determination is made by ex- to a concession of personal jurisdiction. amining the “totality of the circumstances,” Trans-Asiatic Oil Ltd., S.A. v. Apex Oil , 804 Century Hotels v. United States , 952 F.2d 107, F.2d 773, 778-79 (1st Cir. 1986). “Once the 110 (5th Cir. 1992), looking to such factors as [pretrial] order is entered, it controls the scope the degree of control and dominion exercised and course of the trial. F ED . R. C IV . P. 16. If by the officer, the commingling of funds, a claim or issue is omitted from the order, it is [3] whether corporate formalities were observed, waived.” Given King’s waiver, Beagles was whether the corporation was adequately capi- not required to prove personal jurisdiction at talized, and the whether the corporation trans- trial. acts the officers’ personal business. United States v. Jon-T Chems., Inc. , 768 F.2d 686, AFFIRMED. 691 (5th Cir. 1985).
Importantly, King does not take issue with the preliminary finding of alter ego liability. [2]
NOTES
[2] In finding the establishment of a prima facie case of alter ego liability, the court relied on un- controverted evidence that “(a) King and Rourke organized FAE; (b) King used FAE funds for personal purposes; (c) King commingled personal funds with those of FAE; (d) King disregarded corporate formalities; (e) King had used FAE funds to pay personal obligations; and (f) King’s withdrawals of assets from FAE resulted in its evidentiary hearing or reserving the issue for the being unable to meet its obligations.” The fact merits. that this evidence was uncontroverted, coupled with King’s failure to request an evidentiary hear-
[3] Valley Ranch Dev. Co. v. FDIC , 960 F.2d ing, compels the conclusion that the court did not 550, 554 (5th Cir. 1992) (quoting Flannery v. err by deciding personal jurisdiction without an Carroll , 676 F.2d 126, 129 (5th Cir. 1982)).