Metallicus Order
Metallicus Order
Metallicus Order
ENTERED
April 03, 2020
UNITED STATES DISTRICT COURT
David J. Bradley, Clerk
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Before the Court is Defendants’ Remington Reynolds, Trevor Short, and Premier
Tennis Group, LLC d/b/a Premier Live (“Premier Defendants”) Motion to Dismiss for
Lack of Personal Jurisdiction under Federal Rule of Civil Procedure 12(b)(2). After
reviewing the motion, response, reply, and applicable law, the Court GRANTS the
motion.
I. Background
Plaintiffs Adam Kliebert, Gloria Blake and Glenn Blake (collectively “Kliebert
company which created the cryptocurrency “Metal.” Dkt. 5-1 (Plaintiffs’ Original
Petition, or “Pet.”)) ¶ 13. The petition alleges that Plaintiff Adam Kliebert attended the
2017 Necker Cup, a tennis tournament held on Necker Island, where he met the Premier
Defendants.1 Pet. ¶¶ 11, 19–20; Dkt. 12-1 ¶ 5. Kliebert and the Blakes allege that they
1
Plaintiffs allege that Kliebert met Defendants at the Neckar Cup on Neckar Island,
British Virgin Islands. Defendants state that these allegations are incorrect, and that the
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based on misleading representations that Metallicus and the Premier Defendants made at
the Necker Cup. Pet. ¶¶ 19–21. In their petition, Kliebert and the Blakes assert claims for
violations of the Texas Securities Act and the Texas Deceptive Trade Practices Act,
fraud, fraudulent inducement, and negligent misrepresentation. Pet. at 5–11. They seek
Remington Reynolds and Trevor Short, who reside in Atlanta, Georgia; and Premier
Live, a business name used by Reynolds and Short. Pet. ¶ 2–6. Plaintiffs allege that the
Premier Defendants promote and direct the Necker Cup, and that as part of the 2017
Necker Cup, the Premier Defendants arranged to promote Metal and receive a
commission for any Metal sold as a result. Pet. ¶¶ 12–15. Kliebert and the Blakes allege
this Court has personal jurisdiction over the Premier Defendants “because they do
business in the State of Texas, and because all or a substantial portion of the events
giving rise to this case occurred in Texas.” Pet. ¶ 9. They also allege that the Premier
Defendants offered and sold securities (the units of “Metal”) to residents of the state of
Texas and offered and sold securities within the state of Texas. Pet. ¶¶ 27, 29.
The Premier Defendants now move to dismiss this action against them. These
defendants argue that the Court lacks personal jurisdiction over them because (1) they are
non-residents of Texas and they have not purposefully established minimum contacts
2017 Necker Cup (spelled with an “e” rather than an “a”) took place in the Bahamas.
These differences in spelling and location are immaterial to the relief sought in
Defendants’ motion.
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with Texas, the forum state, and (2) exercising personal jurisdiction over them would not
comport with fair play and substantial justice. See generally Dkt. 5.
A. Rule 12(b)(2)
Procedure 12(b)(2). When personal jurisdiction is challenged, the plaintiff “bears the
burden of establishing the district court’s jurisdiction over the defendant.” Quick
Technologies, Inc. v. Sage Group PLC, 313 F.3d 338, 343 (5th Cir. 2002). “When the
district court rules on a motion to dismiss for lack of personal jurisdiction ‘without an
evidentiary hearing, the plaintiff may bear his burden by presenting a prima facie case
that personal jurisdiction is proper.’” Id. (quoting Wilson v. Belin, 20 F.3d 644, 648 (5th
Cir.)). “In making its determination, the district court may consider the contents of the
record before the court at the time of the motion, including ‘affidavits, interrogatories,
discovery.’” Id. at 344 (quoting Thompson v. Chrysler Motors Corp., 755 F.2d 1162,
1165 (5th Cir. 1985)). The court must accept as true the uncontroverted allegations in the
plaintiff’s complaint and must resolve in favor of the plaintiff any factual conflicts.
Guidry v. United States Tobacco Co., Inc., 188 F.3d 619, 625 (5th Cir. 1999). However,
the court is not obligated to credit conclusory allegations, even if uncontroverted. Panda
Brandywine Corp. v. Potomac Electric Power Co., 253 F.3d 865, 869 (5th Cir. 2001).
“Absent any dispute as to the relevant facts, the issue of whether personal jurisdiction
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the Court. Ruston Gas Turbines, Inc. v. Donaldson Co., Inc., 9 F.3d 415, 418 (5th Cir.
1993).
B. Personal Jurisdiction
(1) the forum state’s long-arm statute confers personal jurisdiction over that defendant;
and (2) the exercise of personal jurisdiction comports with the Due Process Clause of the
Fourteenth Amendment.” McFadin v. Gerber, 587 F.3d 753, 759 (5th Cir. 2009). “The
Texas long-arm statute authorizes the exercise of jurisdiction over nonresidents ‘doing
business’ in Texas,” and “[t]he Texas Supreme Court has interpreted the ‘doing business’
requirement broadly, allowing the long-arm statute to reach as far as the federal
Constitution permits.” Grundle Lining Const. Corp. v. Adams County Asphalt, Inc., 85
F.3d 201, 204 (5th Cir. 1996) (citing Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.
1990)). Thus, the jurisdictional inquiry under the Texas long-arm statute collapses into a
single due process inquiry. Ruston Gas Turbines v. Donaldson Co., 9 F.3d 415, 418 (5th
Cir. 1993).
The Due Process Clause permits the exercise of personal jurisdiction over a
nonresident defendant when (1) that defendant “purposefully availed itself of the benefits
and protections of the forum state by establishing ‘minimum contacts’ with the forum
state,” and (2) the exercise of jurisdiction does not offend ‘traditional notions of fair play
and substantial justice.’” Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 214–15 (5th
Cir. 2000).
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specific jurisdiction, or contacts sufficient to assert general jurisdiction. Alpine View, 205
F.3d at 215. Specific jurisdiction over a nonresident is appropriate when the defendant
has purposefully directed its activities at the forum state and the “litigation results from
alleged injuries that ‘arise out of or relate to’ those activities.” Id. (quoting Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 472–73 (1985)). General jurisdiction will attach where
the nonresident defendant’s contacts with the forum state, although not related to the
plaintiff’s cause of action, are “continuous and systematic.” Alpine View, 205 F.3d at 215
(quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414–15
(1984)).
III. Analysis
Kliebert and the Blakes assert that the Premier Defendants have minimum contacts
with the State of Texas sufficient to confer specific jurisdiction because Kliebert and the
Blakes are Texas residents and the Premier Defendants promoted Metal to them and
The first alleged contact between Kliebert and the Premier Defendants occurred
when Plaintiff Adam Kliebert saw a Metallicus presentation and met Premier Defendant
Trevor Short at the Necker Cup, outside of Texas. Pet. ¶¶ 16–18; Dkt. 12-1 ¶ 5. The
petition does not allege any facts showing that the Premier Defendants directed activities
promoting or marketing Metal to Texas residents beyond the Necker Cup. See generally
Pet. In response to the motion to dismiss, Kliebert only testifies by affidavit that “[a]s a
direct result of the PL Defendants’ marketing efforts, I invested several times in Metal
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through Metallicus, Inc.” and “[m]any of these investments took place while I was in
The parties dispute whether the Premier Defendants knew that Kliebert was a
Texas resident. The Court resolves any factual conflicts in favor of Kliebert and the
Blakes. See Guidry, 188 F.3d at 625. Accordingly, for purposes of deciding this motion,
the Court assumes that the Premier Defendants knew Kliebert was a Texas resident. 2
The Court nonetheless finds that Kliebert and the Blakes have not alleged facts
showing that the Premier Defendants had minimum contacts with Texas sufficient for the
Court to exercise personal jurisdiction over them. Kliebert and the Blakes’ assertion of
personal jurisdiction hinges on the mere fortuity that they are Texas residents. That is not
enough to confer jurisdiction. See, e.g., Moncrief Oil Int’l Inc. v. OAO Gazprom, 481
F.3d 309, 313 (5th Cir. 2007) (granting motion to dismiss for lack of personal jurisdiction
where foreign defendant entered into contracts with plaintiff knowing from the outset that
plaintiff was a Texas resident and sending an executive to visit Texas in furtherance of
performing the contract); see also Am. Realty Tr., Inc. v. Hamilton Lane Advisors, Inc.,
115 F. App’x 662, 666 (5th Cir. 2004) (affirming dismissal for lack of personal
jurisdiction over defendants whose “sole connection to this case involves [a] meeting in
2
The affidavit of Adam Kliebert attests that he told Trevor Short he was a Texas resident while
attending the Necker Cup. Dkt. 12-1 ¶ 5. However, Kliebert and the Blakes do not allege or attest
that the Premier Defendants knew that the Blakes were Texas residents. See generally id.; see
also Dkt. 12-1 at 3–4. Defendants Remington Reynolds and Trevor Short attest in affidavits that
they did not know that either Kliebert or the Blakes were Texas residents. Dkt. 5-1 ¶ 14; Dkt. 5-2
¶ 13.
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torts that have allegedly injured a forum resident does not necessarily establish that the
Corp. v. Potomac Electric Power Co., 253 F.3d 865, 868 (5th Cir. 2001). Kliebert and the
Blakes still must show the defendants’ purposeful availment of the benefits and
protections of, and minimum contacts with, the forum state to establish a prima facie case
of specific personal jurisdiction. Id. In this case they have not made this showing. See
Charia v. Cigarette Racing Team, Inc., 583 F.2d 184, 189 (5th Cir. 1978) (affirming
dismissal for lack of personal jurisdiction because “isolated sales did not involve
purposeful conduct within [the forum state] so as to avail [defendant] of the benefits and
The unpublished Texas Courts of Appeals decisions cited by Kliebert and the
Blakes do not require a different result. See Dkts. 12-1, 12-2 (attaching Am. Preferred
Servs., Inc. v. Harrison ex rel. Allen, Civ. Action 07-11-0065, 2011 WL 4485463, at *2
(Tex. App.—Amarillo Sept. 28, 2011, no pet.); Santy v. McElroy, Civ. Action 03-00-
00368, 2001 WL 838400, at *5 (Tex. App.—Austin July 26, 2001, no pet.). In Allen,
alleged that the defendant acted as an administrator for a party to the annuity, performed
requisite steps to secure a binding contract, knowingly reaped financial benefit from the
plaintiffs, and expected to perform any ministerial duties related to the contract the
plaintiffs needed. Id. at *3. As part of securing the contract, the defendant knew that an
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a deal in Texas. Id. at *2. The Allen court also noted that parties to an annuity foresee or
expect a long-term relationship. Id. at *3. Those facts and circumstances are not present
in this case.
Santy is also distinguishable. In that case, plaintiffs alleged that several defendants
were associated with the sales of Texas real estate properties to certain partnerships,
which were allegedly conspiring to conceal the nature of the real estate sales. Santy, 2001
WL 838400, at *1. The defendants challenging personal jurisdiction had maintained ties
with Texas by various means regarding the relevant Texas real estate transactions over a
period of years, were involved with the other Texas defendants in planning the sales, and
had visited Texas numerous times to see the relevant properties. Id. at *6. Those facts are
Kliebert and the Blakes have not shown that the Premier Defendants had minimum
contacts within Texas sufficient to establish personal jurisdiction over them, so the Court
need not determine whether the assertion of personal jurisdiction would comport with
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IV.Conclusion
Jurisdiction (Dkt. 5) is GRANTED. The claims against the Premier Defendants are
___________________________________
George C. Hanks Jr.
United States District Judge
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