Case: 18-20064      Document: 00514687695         Page: 1    Date Filed: 10/18/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-20064                     United States Court of Appeals

                                  Summary Calendar
                                                                              Fifth Circuit

                                                                            FILED
                                                                     October 18, 2018

E. DRAKE,                                                              Lyle W. Cayce
                                                                            Clerk
              Plaintiff - Appellant

v.

MURPHY, AUSTIN, ADAMS, SCHOENFELD; NIELLO PERFORMANCE
MOTORS, INCORPORATED; RICHARD SEEBORG; GARLAND E.
BURRELL, JR.; EDWARD J. GARCIA; LAWRENCE K. KARLTON; JOHN
A. MENDEZ; KIMBERLY J. MUELLER; TROY L. NUNLEY; WILLIAM B.
SHUBB; LAWRENCE J. O’NEILL; EDMUND F. BRENNAN; ALLISON
CLAIRE; CRAIG M. KELLISON; MICHAEL J. SENG; JENNIFER L.
THURSTON,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CV-1826


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM:*




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 18-20064
       Plaintiff-Appellant Eric Drake, proceeding pro se, sued Defendant-
Appellees (1) Murphy, Austin, Adams, Schoenfeld (“Murphy Austin”), a
California law firm, and (2) Niello Performance Motors, Inc. (“Niello”), a
California automobile dealership, asserting numerous claims, including fraud
and violations of the federal odometer laws. This is the fourth suit Drake has
filed against Niello relating to the 2014 sale of a 2003 Mercedes Benz Model C-
32. 1 Murphy Austin represented Defendant-Appellee Niello in the previous
lawsuits.
       In 2013, Drake saw Niello’s Cars.com advertisement for a 2003 Mercedes
Benz Model C-32. He contacted Niello about purchasing the car, but they were
not able to reach an agreement about the terms and conditions of the sale.
When negotiations faltered, Drake sued Niello in the Southern District of
Texas, McAllen Division. The parties settled, and Drake voluntarily dismissed
that case.
       Drake traveled to Sacramento, California to sign the settlement
agreement. One of the terms of that agreement was that Niello would sell the
car to Drake. Under the agreement’s terms, Niello delivered the car to
Shipping Experts, a California shipping company and a nonparty to this suit,
to ship the car from California to Drake in Texas.
       Drake then filed three more lawsuits based on the sale and
transportation of the car: one in the Northern District of Texas; another in the
Northern District of California; and the third, the instant case, in the Southern
District of Texas, Houston Division. Drake’s primary claim is that the mileage
on the car’s odometer differed from the mileage set out in the settlement




       1  This court has recently acknowledged that “Drake has been declared a vexatious
litigant in Texas state courts . . . .” Drake v. Costume Armour, Inc., No. 17-20671, 

, at *1 (5th Cir. Sept. 6, 2018).
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                                             No. 18-20064
agreement. Niello had not appeared, answered, or filed any responsive
pleadings in the earlier suits filed in Texas.
          In the instant case, Murphy Austin and Niello specially appeared and
moved to dismiss for lack of personal jurisdiction, improper venue, and failure
to state a claim. The district court held a hearing at which it considered the
settlement agreement and declarations from Niello’s general counsel and a
Murphy Austin representative that set out the jurisdictional facts for each
entity. The district court granted the motions to dismiss at the hearing. The
district court then entered an order confirming that it had granted Murphy
Austin’s and Niello’s motions to dismiss for lack of personal jurisdiction, “as
explained on the record.”
          Drake moved for reconsideration, and the district court denied the
motion. On appeal, Drake did not provide a transcript of the hearing at which
the district court dismissed the case for lack of jurisdiction.
          We review a district court’s dismissal of a complaint for lack of personal
jurisdiction de novo. 2 We apply a three-step analysis for our specific personal
jurisdiction inquiry:
          (1) whether the defendant has minimum contacts with the 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; (2) whether the plaintiff’s cause of
          action arises out of or results from the defendant’s forum-related
          contacts; and (3) whether the exercise of personal jurisdiction is
          fair and reasonable. 3

          We have now reviewed in detail the entire record on appeal, including
the parties’ briefs and the record excerpts. We note that Murphy Austin is a



          2   Monkton Ins. Servs., Ltd. v. Ritter, 

, 431 (5th Cir. 2014).
          3   

(quoting Seiferth v. Helicopteros Atuneros, Inc., 

, 271 (5th Cir.
2006)).
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                                      No. 18-20064
law firm organized under the laws of California, has no offices in Texas, does
not advertise in Texas, and has no attorney licensed to practice law in Texas.
Similarly, Niello is a California company, has no offices, dealerships, bank
accounts, or a registered agent in Texas, and does not regularly conduct
business in Texas or directly target its advertisements to Texas residents.
Drake signed the settlement agreement in California and agreed to purchase
the car there. Niello’s only relevant contact with Texas was its Cars.com
advertisement, which was not specifically directed at Texas.
       We agree with the district court that neither Murphy Austin nor Niello
has sufficient minimum contacts with Texas to give rise to specific personal
jurisdiction there. “We have consistently held that ‘merely contracting with a
resident of [a] forum state’ does not create minimum contacts sufficient to
establish personal jurisdiction over a nonresident defendant.” 4 This is
particularly true when, as here, “an out-of-state defendant has no physical
presence in the forum, conducts no business there, and the contract at issue
‘was not signed in the state and did not call for performance in the state.’” 5
Neither are Defendants’ contacts with Texas sufficiently “substantial,
continuous and systematic” to render them “essentially at home” in Texas. 6
       We conclude that the district court’s analysis and conclusions are correct
in all respects and are free of reversible error. We therefore affirm that court’s
dismissal of this action.
AFFIRMED.




       4 Blakes v. DynCorp Int’l, L.L.C., 732 F. App’x 346, 347 (5th Cir. 2018) (quoting Holt
Oil & Gas Corp. v. Harvey, 

, 778 (5th Cir. 1986)).
       5 

768 F.3d at 433).
       6 Sangha v. Navig8 ShipManagement Private Ltd., 

, 101–02 (5th Cir. 2018)

(quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 

, 919 (2011)).
                                             4