UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

LAUGHLIN ENERGY MOTOR § 

SPORTS, LLC, § 

Plaintiff § 

 § 

v. § CASE NO. 4:22-cv-00876-P 

 § 

AMERICANA PRO DETAILING § 

PRODUCTS LLC, § 

Defendant § 

DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT 

UNDER RULES 12(B)(2) AND 12(B)(5) AND BRIEF IN SUPPORT 

MARK D. SMITH 

State Bar No. 18648650 

msmith@thompsonhorton.com 

K. ADAM ROTHEY 

State Bar No. 24051274 

arothey@thompsonhorton.com 

LEAH C. NORTHENER 

State Bar No. 24101034 

lnorthener@thompsonhorton.com 

THOMPSON & HORTON LLP

500 North Akard Street, Suite 3150 

Dallas, Texas 75201 

(972) 853-5115 – Telephone 

(972) 692-8334 – Facsimile

Attorneys for Defendant Americana Pro 

Detailing Products LLC

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ii 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ......................................................................................................... iii 

I. SUMMARY OF THE ARGUMENT ..................................................................................1 

II. RELEVANT FACTUAL BACKGROUND ........................................................................2 

III. STANDARD OF REVIEW .................................................................................................4 

IV. ARGUMENT AND AUTHORITIES ..................................................................................6 

1. This Court lacks specific personal jurisdiction over Americana. ............................6 

2. Subjecting Americana to the jurisdiction of Texas would violate 

standards of reasonableness and fairness. ..............................................................12 

3. Americana was not properly served in this case, depriving 

the Court of personal jurisdiction. .........................................................................13 

V. CONCLUSION ..................................................................................................................15 

CERTIFICATE OF SERVICE ......................................................................................................16 

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iii 

TABLE OF AUTHORITIES 

Cases

Alfred v. Moore & Peterson, 

117 F.3d 278 (5th Cir. 1997) .............................................................................................. 4 

Asahi Metal Indus. Co. v. Super. Ct. of Cal., 

480 U.S. 102 (1987) .......................................................................................................... 12 

Asset Protection & Sec. Servs., L.P. v. Armijo, 

570 S.W.3d 377 (Tex. App.—El Paso 2019, no pet.) ....................................................... 14 

Balderas v. Nguyen, 

No. 3:19-CV-2826-D, 2020 WL 2495889 (N.D. Tex. May 14, 2020) ................................4 

Barnes v. Frost Nat’l Bank, 

840 S.W.2d 747 (Tex. App.—San Antonio 1992, no writ) .............................................. 13 

BHTT Entertainment, Inc. v. Brickhouse Café & Lounge, L.L.C., 

858 F.3d 310 (5th Cir. 2017) ............................................................................................ 13 

Black v. Wells Fargo Home Mortgage, Inc., 

No. 3:16-CV-2719-M (BT), 2018 WL 3747919 (N.D. Tex. Jul. 9, 2018) ..........................4 

Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind, 

841 F.2d 646 (5th Cir. 1988) ...................................................................................... 14, 15 

Burger King Corp. v. Rudzewicz, 

471 U.S. 462 (1985) ........................................................................................................ 5, 6 

City of Monroe Employees Ret. Sys. v. Bridgestone Corp., 

399 F.3d 651 (6th Cir. 2005) .............................................................................................. 8 

Comm’n of Conts of Gen. Exec. Comm. of Petroleum Workers Union of Mexico v. Arriba, Ltd., 

882 S.W.2d 576 (Tex. App.—Hous. [1st Dist.] 1994, no pet.) ........................................ 14 

Command–Aire Corp. v. Ontario Mechanical Sales and Service, Inc., 

963 F.2d 90 (5th Cir.1992) ................................................................................................. 9

D.J. Invs., Inc. v. Metzeler Motorcycle Tire Agent Gregg, Inc., 

754 F.2d 542 (5th Cir. 1985) ............................................................................................ 14 

Daimler AG v. Bauman, 571 U.S. 117 (2014) ............................................................................ 5, 6 

DSF Lux Int’l v. Specialized Fin. Partners, L.L.C., 

No. A-07-CA-742-LY, 2009 WL 10670341 (W.D. Tex. Sept. 18, 2009) ........................ 14 

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iv 

Elec. & Gas Tech., Inc. v. Universal Communication Sys., Inc., 

No. 3:03–CV–1798–G, 2003 WL 22838719 (N.D. Tex. Nov. 24, 2003) ........................ 11

Fields v. SDH Services E., LLC, 

No. 4:18-CV-01438, 2019 WL 1098369 (S.D. Tex. Mar. 7, 2019) ................................. 13 

Freight Terminals, Inc. v. RyderSys., Inc., 

461 F.2d 1046 (5th Cir. 1972) .......................................................................................... 13 

Freudensprung v. Offshore Tech. Servs., 

379 F.3d 327 (5th Cir. 2004) .............................................................................................. 7 

GMR Gymnastics Sales, Inc. v. Walz, 

117 S.W.3d 57 (Tex. App.—Fort Worth 2003, pet. denied) ............................................ 14 

Godo Kaisha IP Bridge 1 v. Broadcom Ltd., 

No. 16-CV-0134, 2017 WL 970383 (E.D. Tex. Mar. 1, 2017) .......................................... 6 

Helicopteros Nacionales de Colombia, S.A. v. Hall, 

466 U.S. 408 (1984) ...................................................................................................... 7, 12

Hennington v. United Parcel Service, Inc., 

No. 4:18-CV-00520, 2018 WL 6267768 (S.D. Tex. Nov. 30, 2018) ............................... 14 

Hydrokinetics, Inc. v. Alaska Mechanical, Inc., 

700 F.2d 1026, 1029 (5th Cir. 1983) ................................................................................ 10

In re Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig., 

No. H-10-171, 2011 WL 1232352 (S.D. Tex. Mar. 31, 2011) ........................................... 9 

International Shoe Co. v. State of Washington, 

326 U.S. 310 (1945) ........................................................................................................ 1, 5 

King v. Hawgwild Air LLC, 

No. 3:08-CV-0153-L, 2008 WL 2620099 (N.D. Tex. Jun. 27, 2008) .......................... 7, 11

Lansing Trade Group, LLC v. 3B Biofuels GmbH & Co, KG, 

612 F. Supp. 2d 813 (S.D. Tex. 2009) ................................................................................ 9 

Latter & Blum of Tex., LLC v. Murphy, 

No. 02-17-00463-CV, 2019 WL 3755765 (Tex. App.—Fort Worth Aug. 8, 2019, pet. 

denied) (mem. op.) ............................................................................................................ 14 

Lucky v. Haynes, 

No. 3:12–CV– 2609–B, 2013 WL 3054042 (N.D. Tex. June 18, 2013) .......................... 14 

Mateo v. TA HSIN, Inc., 

No. 7:19-CV-419, 2021 WL 3931915 (S.D. Tex. Feb. 10, 2021) ...................................... 8 

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v 

MaxoTech Solutions LLC v. PamTen Inc., 

No. 3:20-CV-1387-S, 2020 WL 6489015 (N.D. Tex. Nov. 3, 2020) ............................. 6, 9

McFadin v. Gerber, 

587 F.3d 753 (5th Cir. 2009) .......................................................................................... 6, 7 

Moncrief Oil Int’l, Inc. v. OAO Gazprom, 

481 F.3d 309 (5th Cir. 2007) .................................................................................. 5, 7, 8, 9 

Null v. Bank One of Columbus, N.A., 

988 F.2d 1210 (5th Cir. 1993) (unpublished) ................................................................... 11

Patterson v. Aker Sols. Inc., 

826 F.3d 231 (5th Cir. 2016) .............................................................................................. 6 

Royal Surplus Lines Ins. Co. v. Samaria Baptist Ch., 

840 S.W.2d 382 (Tex. 1992) ............................................................................................. 14 

Ruston Gas Turbines v. Donaldson Co., Inc., 

9 F.3d 415 (5th Cir. 1993) .............................................................................................. 4, 5

Schlobohm v. Shapiro, 

784 S.W.2d 355 (Tex. 1990) ............................................................................................... 5 

Special Indus., Inc. v. Zamil Group Holding Co., 

578 F.App'x 325, 331 (5th Cir. 2014) ............................................................................. 6, 9

Stuart v. Spademan, 

772 F.2d 1185 (5th Cir. 1985) ............................................................................................ 4 

Thompson v. Chrysler Motors Corp., 

755 F.2d 1162 (5th Cir. 1985) ............................................................................................ 4 

United Servs. Automobile Assoc. v. New Day Financial, LLC, 

No. SA–17–CV–759–OLG, 2018 WL 1899807 (W.D. Tex. Mar. 8, 2018) .................... 11

Walden v. Fiore, 

571 U.S. 277 (2014) ............................................................................................................ 6 

Whitney v. L & L Realty Corp., 

500 S.W.2d 94 (Tex. 1973) ............................................................................................... 14 

Wilson v. Dunn, 

800 S.W.2d 833 (Tex. 1990) ............................................................................................. 15 

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Statutes & Rules

FED. R. EVID. 201 ......................................................................................................................... 4, 8 

TEX. R. CIV. P. 12(B) .............................................................................................................. 1, 4, 15 

TEX. R. CIV. P. 107(c) ................................................................................................................... 14 

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DEFENDANT AMERICANA’S MOTION TO DISMISS PAGE 1 

I. 

SUMMARY OF THE ARGUMENT 

Americana seeks dismissal of this suit under Federal Rules of Civil Procedure 12(b)(2) and 

12(b)(5) because Americana is not subject to personal jurisdiction in the state of Texas and because 

it was improperly served. Laughlin's allegations, which are disputed, arise entirely out of a single 

contract that is silent as to jurisdiction, venue, choice of law, and place of performance. Any 

performance occasioned in Texas was a result of Laughlin’s unilateral decisions, not Americana’s 

direction. Accordingly, Americana does not have the requisite contacts with the State of Texas to 

warrant the exercise of specific personal jurisdiction by the courts of Texas, and maintenance of 

personal jurisdiction over Americana in Texas would offend “traditional notions of fair play and 

substantial justice” in violation of Americana’s due process rights as interpreted by International 

Shoe Co. v. State of Washington, 326 U.S. 310 (1945), and its progeny. 

Moreover, Americana was not properly served in this matter. The certified mail containing 

the Summons and Citation in this case omitted Americana’s mailbox, or “suite” number from the 

mailing address which resulted in the Summons and Complaint being served on an employee for 

the commercial mailing company from which Americana rents a mailbox. In addition, the return 

receipt was not signed by Daniel Pikarsky, the registered agent for Americana as reflected in New 

York Department of State Division of Corporations entity information and addressee on the 

certified mail. Thus, Laughlin’s purported service of process on Americana was defective and 

insufficient. Absent proper service of process, this Court also lacks personal jurisdiction over 

Americana. 

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DEFENDANT AMERICANA’S MOTION TO DISMISS PAGE 2 

II. 

RELEVANT FACTUAL BACKGROUND 

On May 11, 2022, Laughlin filed its Original Petition against Americana in the 266th 

Judicial District Court, Erath County, Texas (the “State-Court Suit”). See ECF No. 1, Ex. B. Then, 

on September 28, 2022, Americana removed the State-Court Suit to this court based on diversity 

jurisdiction. ECF No. 1. On October 13, 2022, pursuant to Court order, Laughlin filed its First 

Amended Complaint (the “Complaint”) in this matter. ECF No. 9. 

Americana is in the automotive detailing products business. App. 1, ¶ 2. Americana 

markets its products under the Hot Wheels Americana Series brand via a licensing agreement with 

Mattel, the registered trademark holder of Hot Wheels.1 Id. Americana markets its products, in 

part, by sponsoring racecar drivers in the National Hot Rod Association (“NHRA”), who in turn 

promote Americana’s products by prominently displaying Americana’s logos and decals on their 

racecars and other racing vehicles, attire, and equipment at NHRA races and events across the 

country. Id. Through the Complaint, Laughlin purports to sue Americana for an alleged breach of 

contract and quantum meruit regarding a Sponsorship Agreement (the “Agreement”) between the 

parties. ECF No. 9, at ¶ 7. As part of the Agreement, Laughlin agreed to display Americana’s logo 

on its race vehicles and other marketing materials during select NHRA professional stock car races 

in exchange for $135,000.00 paid over four installments. App. 5–8, ¶¶ 1, 2, 4. In addition to 

displaying Americana’s logo in exchange for $135,000.00, Laughlin agreed to make certain 

appearances on behalf of Americana for an additional fee of between $800.00 and $2,000.00 per 

day. Id. at ¶ 5. Laughlin does not allege that Americana paid or failed to pay Laughlin any 

appearance fees. See generally, ECF No. 9. Ultimately, Laughlin only alleges that Americana is 

1

 See https://americanapro.com/hotwheels/ (last visited Oct. 26, 2022). 

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DEFENDANT AMERICANA’S MOTION TO DISMISS PAGE 3 

liable for breach of contract and quantum meruit because it “fail[ed] to make the final two 

payments remaining under the contract” for logo placement which amounted to $67,500. Id. at ¶ 3. 

Americana “is a non-resident limited liability company” “who does not maintain a 

registered agent [in Texas] for service of process.” ECF No. 9, ¶ 2. As a result, Laughlin alleged 

that the Texas Secretary of State “is the agent for service” on Americana, citing Texas Civil 

Practice and Remedies Code section 17.044. Id. According to certification filed by the Texas 

Secretary of State in the State-Court Suit, Laughlin provided the Texas Secretary of State with a 

copy of the Citation and the Original Petition on May 19, 2022. App. 13. On June 14, 2022, the 

Texas Secretary of State forwarded the Citation to “Americana Pro Detailing Products, LLC, 

Daniel Pikarsky, 3793 Milton Avenue, Camillus, NY 13031,” via Certified Mail/Return Receipt 

Requested. Id. “3793 Milton Avenue, Camillus, NY 13031” is the address for a private company 

called Post Etc., where individuals and companies like Americana rent mailboxes, or “suites” for 

receiving mail. App. 2, ¶ 3. However, the Original Petition and, consequently, the Citation and the 

Secretary of State, omitted Americana’s mailbox, or “suite” number from the mailing address. 

App. 7–8, ¶ 2; App. 13; App. 15. On information and belief, because of the address error in the 

Secretary of State’s mailing, an employee for Post Etc.—not a representative of Americana—

signed the return receipt on June 21, 2022. App. 3, ¶ 6. No employee of Post Etc. is authorized to 

accept service on Americana’s behalf. Id. Post Etc. further neglected to inform Americana that it 

had received certified mail. Id. at ¶ 5. 

Daniel Pikarsky, Americana’s sole member and registered agent, never signed the return 

receipt. Id. at ¶¶ 1, 6. A copy of the New York Department of State Division of Corporations Entity 

Information for Americana Pro Detailing Products, LLC, identifying Daniel Pikarsky as its 

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DEFENDANT AMERICANA’S MOTION TO DISMISS PAGE 4 

Registered Agent and providing the complete mailing address is attached.2 App. 16–17. 

Americana’s registered agent, Daniel Pikarsky, did not receive the certified mail containing notice 

of this lawsuit until September 14, 2022, when Post Etc. notified him that he had received an 

unrelated package in his mailbox. App. 2, ¶ 5. Only when Mr. Pikarsky arrived at Post Etc. for his 

package did he also find the citation and Original Petition for this case in his mailbox. Id. 

Americana now moves to dismiss Laughlin’s claims against it for lack of personal 

jurisdiction under Rule 12(b)(2) and 12(b)(5) of the Federal Rules of Civil Procedure. 

III. 

STANDARD OF REVIEW 

Personal jurisdiction is improper over a nonresident defendant if the exercise of that 

jurisdiction is not permitted under the applicable laws of the forum state. Alfred v. Moore & 

Peterson, 117 F.3d 278, 281 (5th Cir. 1997). It is well-settled that, as here, when a nonresident 

defendant presents a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the 

burden of establishing the district court’s jurisdiction over the nonresident. Stuart v. Spademan, 

772 F.2d 1185, 1192 (5th Cir. 1985) (citing Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 

1165 (5th Cir. 1985)); D.J. Invs., Inc. v. Metzeler Motorcycle Tire Agent Gregg, Inc., 754 F.2d 

542, 545 (5th Cir. 1985). 

Jurisdiction is proper in Texas federal courts if Texas’s long-arm statute confers personal 

jurisdiction over the defendant and if the exercise of jurisdiction is consistent with due process 

under the United States Constitution. Ruston Gas Turbines v. Donaldson Co., Inc., 9 F.3d 415, 418 

2

 Americana requests that the Court take judicial notice of Americana’s address and registered agent 

information as reflected in the records of the New York Department of State Division of Corporations. This 

information is a matter of public record and not subject to reasonable dispute. FED. R EVID. 201; see Black v. Wells 

Fargo Home Mortgage, Inc., No. 3:16-CV-2719-M (BT), 2018 WL 3747919, at *2 (N.D. Tex. Jul. 9, 2018) (taking 

judicial notice of a party’s registered agent and address as reflected on the Texas Secretary of State’s website); 

Balderas v. Nguyen, No. 3:19-CV-2826-D 2020 WL 2495889, at *3 (N.D. Tex. May 14, 2020) (same). 

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DEFENDANT AMERICANA’S MOTION TO DISMISS PAGE 5 

(5th Cir. 1993). The Texas Supreme Court has determined that the Texas long-arm statute extends 

to the limits of federal due process. Id. (citing Schlobohm v. Shapiro, 784 S.W.2d 355, 357 (Tex. 

1990)). Thus, the Court must consider whether: (1) the defendants have established “minimum 

contacts” with the forum state, and (2) whether the exercise of personal jurisdiction over the 

defendants would offend “traditional notions of fair play and substantial justice.” Ruston, 9 F.3d 

at 418 (citing International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Both prongs must 

be met for the Court to exercise personal jurisdiction over a nonresident defendant. Id. Crucial to 

the minimum contacts analysis is a showing that a defendant should reasonably anticipate being 

haled into court in the forum state because the defendant has “purposefully availed” itself of the 

privilege of conducting activities there. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474–

75 (1985). This test “ensures that a defendant will not be haled into a jurisdiction solely as a result 

of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts, or of the ‘unilateral activity of another party or 

a third person.’” Id. at 475. 

The “minimum contacts” inquiry into personal jurisdiction has developed into two 

branches, contacts that give rise to “specific” personal jurisdiction and those that give rise to 

“general” personal jurisdiction. Daimler AG v. Bauman, 571 U.S. 117, 127 (2014). General 

jurisdiction exists “where a foreign corporation’s continuous corporate operations within a state 

[are] so substantial and of such a nature as to justify suit against it on causes of action arising from 

dealings entirely distinct from those activities.” Id. Specific jurisdiction exists when “the suit 

‘aris[es] out of or relate[s] to the defendant’s contacts with the forum.’” Id. However, it is clearly 

established that “merely contracting with a resident of the forum state does not establish minimum 

contacts” for purposes of establishing specific jurisdiction. Moncrief Oil Int’l, Inc. v. OAO 

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DEFENDANT AMERICANA’S MOTION TO DISMISS PAGE 6 

Gazprom, 481 F.3d 309, 311 (5th Cir. 2007); McFadin v. Gerber, 587 F.3d 753, 760 (5th Cir. 

2009) (citing Burger King Corp., 471 U.S. at 478). 

IV.

ARGUMENT AND AUTHORITIES 

1. This Court lacks specific personal jurisdiction over Americana.

Laughlin alleges that Americana is subject to specific personal jurisdiction in this Court.3

ECF No. 9, ¶ 5. Specific jurisdiction focuses on “the relationship among the defendant, the forum, 

and the litigation.” Walden v. Fiore, 571 U.S. 277, 283–84 (2014). Indeed, “[f]or a State to exercise 

jurisdiction consistent with due process, the defendant’s suit-related conduct must create a 

substantial connection with the forum State.” Id. at 284 (emphasis added). Factors to consider 

include: “(1) where the contract was formed; (2) where it would be performed; (3) the hub of the 

parties’ activity; (4) where payments under the contract were tendered; (5) any choice of law 

provision in the contract; and (5) the foreseeability that a material part of the obligations under the 

contract would be performed in the forum.” MaxoTech Solutions LLC v. PamTen Inc., No. 3:20-

CV-1387-S, 2020 WL 6489015, at *6 (N.D. Tex. Nov. 3, 2020) (citing Special Indus., Inc. v. Zamil 

Group Holding Co., 578 F.App'x 325, 331 (5th Cir. 2014)). Specific jurisdiction requires that 

defendant’s suit-related conduct arise out of contacts that the defendant itself creates with the 

forum state—not Laughlin or another third party. Walden, 571 U.S. at 284–85. In breach of 

contract cases, the defendant’s contacts with Texas must relate to or arise from the alleged breach. 

3

 Plaintiff only alleges that this Court has specific jurisdiction over Americana. ECF No. 9, ¶ 2. However, even 

if he had pleaded general jurisdiction, he cannot show that Americana’s contacts with Texas are so continuous and 

systematic to render it essentially at home in the State. Daimler, 571 U.S. at 127. Americana is not incorporated in 

Texas, nor does it maintain a principal place of business in Texas. App. 1, ¶ 2. Accordingly, this Court does not have 

general jurisdiction over Americana. See, e.g., Patterson v. Aker Sols. Inc., 826 F.3d 231, 234 (5th Cir. 2016) (finding 

no general jurisdiction where defendant was incorporated in Norway and maintained principal place of business in 

Norway); Godo Kaisha IP Bridge 1 v. Broadcom Ltd., No. 16-CV-0134, 2017 WL 970383, at *4 (E.D. Tex. Mar. 1, 

2017), report and recommendation adopted, No. 16-CV-134, 2017 WL 1154921, at *1 (E.D. Tex. Mar. 28, 2017) 

(finding no general jurisdiction where defendants were not incorporated in Texas and did not maintain a principal 

place of business in Texas). 

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DEFENDANT AMERICANA’S MOTION TO DISMISS PAGE 7 

King v. Hawgwild Air LLC, No. 3:08-CV-0153-L, 2008 WL 2620099, at *6 (N.D. Tex. Jun. 27, 

2008) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8 (1984)). 

The Complaint alleges only a few contacts that Laughlin contends are sufficient to confer 

specific jurisdiction over Americana: 

 Americana contracted with Laughlin, a Texas resident; 

 Americana made payments to under the Agreement to a resident of Texas; 

 Americana required that the Agreement be performed in Texas through displaying 

of Americana’s logo on Laughlin’s equipment at races in Texas and allegedly 

requiring appearance by Laughlin at a convention in Texas; 

 America “hoped” or “intended” to market, promote, and sell its products in Texas 

through its relationship with Laughlin; and 

 Americana advertises in Texas through other racecars that race in Texas. 

ECF No. 9, ¶¶ 5–6, 8–10. Americana disputes the factual bases of several of these alleged contacts, 

including that Americana required any performance by Laughlin in Texas or “hoped” or 

“intended” to expand its business into Texas through its relationship with Laughlin. Americana 

further disputes that these alleged contacts are in fact contacts with Texas, as opposed to merely 

contacts with Laughlin, who happens to be a Texas resident. Ultimately, Americana disputes that 

these so-called contacts are sufficient to subject it to personal jurisdiction in Texas with respect to 

Laughlin’s claims. 

At the outset, it is well established that “merely contracting with a resident of the forum 

state does not establish minimum contacts,” for purposes of establishing specific jurisdiction. 

Moncrief Oil, 481 F.3d at 311; McFadin, 587 F.3d at 760. Nor does payment to a Texas resident 

under such a contract confer specific jurisdiction. Freudensprung v. Offshore Tech. Servs., Inc., 

329 F.3d 327, 344 (5th Cir. 2004) (emphasizing that the Fifth Circuit has “repeatedly held” that 

the combination of mailing payments to the forum state, engaging in communications related to 

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DEFENDANT AMERICANA’S MOTION TO DISMISS PAGE 8 

execution of a contract, and the existence of a contract with a resident of the forum are insufficient 

to support the exercise of specific personal jurisdiction over a nonresident). Rather, the forum state 

must be “the hub of the parties’ activities” under the contract to constitute jurisdictionally 

significant business activities in the forum state. Moncrief Oil, 481 F.3d at 312. And the forum 

state is not “clearly the hub” of the agreement where neither the contract nor the nature of the work 

at issue show a clear intent for performance in the forum state. Id. at 313. 

Here, Laughlin has not alleged facts demonstrating that Texas is the “hub” of the parties’ 

activities under the Agreement. First, Americana did not enter into the Agreement in Texas. App. 

3, ¶ 7. Nor did Americana enter into the Agreement with Laughlin because Laughlin is in Texas 

or for the specific purpose of targeting the Texas market. Id. at ¶ 8. Moreover, the Agreement is 

silent as to location of Laughlin’s performance, and there is no indication in the Agreement that 

the location of performance mattered to the parties. See generally, App. 5–6. In fact, nothing in 

the Agreement required either party to act in Texas. The Agreement merely called for Laughlin to 

display Americana’s logo on its vehicles and other marketing materials during the sixteen NHRA 

Pro Stock Car races Laughlin planned to participate in during the 2018 season. See App. 5, ¶¶ 1, 

4, 6. Those races took place all over the United States. According to the NHRA’s website, of the 

twenty-four races scheduled for 2018, only two occurred in Texas, with the remainder occurring 

at locations from California to Florida. See 2018 NHRA Schedule at 

https://www.nhra.com/schedule/2018.

4

 Thus, Texas cannot be reasonably deemed the “hub” of the 

Agreement since Americana had no specific intent to target Texas through the Agreement and the 

4

 Americana requests that the Court take judicial notice of 2018 NHRA schedule as reflected on the NHRA 

website. This information is not subject to reasonable dispute. FED. R EVID. 201; see City of Monroe Employees Ret. 

Sys. v. Bridgestone Corp., 399 F.3d 651, 655 n. 1 (6th Cir. 2005) (taking judicial notice of a term defined on the 

website of the National Association of Security Dealers, Inc.); Mateo v. TA HSIN, Inc., No. 7:19-CV-419, 2021 WL 

3931915, at *10 (S.D. Tex. Feb. 10, 2021) (taking judicial notice of the product website for Sweet’N Low). 

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DEFENDANT AMERICANA’S MOTION TO DISMISS PAGE 9 

Agreement itself did not require any performance in Texas at all. As a result, Americana could not 

reasonably anticipate being haled into court in Texas. See Moncrief, 481 F.3d at 313 (affirming 

dismissal and holding “[t]he contract was silent as to location”); In re Heartland Payment Sys., 

Inc. Customer Data Sec. Breach Litig., No. H-10-171, 2011 WL 1232352, at *12–13 (S.D. Tex. 

Mar. 31, 2011) (declining to find specific jurisdiction and noting “[t]he contract . . . illustrates [] 

indifference toward Texas”); Lansing Trade Group, LLC v. 3B Biofuels GmbH & Co, KG, 612 F. 

Supp. 2d 813, 821 & 827 (S.D. Tex. 2009) (dismissing case and noting “[t]he contract did not call 

for performance in Texas” and also “[t]here is no indication that [the non-resident defendant] 

contracted with [the Texas plaintiff] because of its Texas location”). 

Moreover, contrary to Laughlin’s allegations, the Agreement—and by extension 

Americana—did not control the location of Laughlin’s performance or require that he display 

Americana’s logos at any races in Texas. Indeed, the Agreement did not provide Americana any 

input regarding or control over which sixteen of the twenty-four races Laughlin participated in or, 

by extension, at what race locations its logo was displayed. See generally, App. 5–6. Laughlin had 

the unilateral authority to determine which races it participated in. And since only two of the 

possible twenty-four races in 2018 occurred in Texas, the vast majority of Laughlin’s performance 

under the contract necessarily would have occurred outside Texas. This is a far cry from the Fifth 

Circuit’s requirement that a “material” part of the contract be performed in Texas to confer 

jurisdiction. MaxoTech, 2020 WL 6489015, at *6 (citing Special Indus., Inc., 578 F.App'x, at 331). 

And even if those two races were “material” to the Agreement, where “the forum plaintiff’s 

decision to perform its contractual obligation within its own forum state is totally unilateral, it 

cannot be viewed as purposeful on the part of the nonresident.” Command–Aire Corp. v. Ontario 

Mechanical Sales and Service, Inc., 963 F.2d 90, 94 (5th Cir.1992). 

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Laughlin’s other allegations regarding performance under the Agreement do not change 

this analysis. Americana denies Laughlin’s allegation that Americana “required that the contract 

be performed in Texas when it required ... Laughlin to work Americana Pro’s booth at a 

convention in Dallas, Texas marketing Americana Pro’s products,” as part of the alleged “display 

obligations of the contract.” ECF No. 9, ¶¶ 5, 8–9. Americana never required Laughlin to appear 

at an Americana booth at a convention in Dallas, Texas in connection with the Agreement. On the 

contrary, on January 12, 2018, ten days before the parties entered into the Agreement, Americana 

and Laughlin appeared at a Mattel booth at a national automotive conference in Dallas, Texas, 

attended by individuals in the automotive industry from all over the country. App. 3, ¶ 7. As a 

result, Laughlin cannot claim that Americana contractually required its performance in Texas as a 

result of its appearance at a non-party’s booth before the Agreement was even in place. Moreover, 

Americana only appeared at the Mattel/Hot Wheels booth at the direction of Mattel/Hot Wheels, 

its licensor and business partner, not for the purpose of consummating any agreement with 

Laughlin.5 Id. And even if Americana had required Laughlin to work an Americana booth at a 

national convention in Texas—which it did not—the fact that the convention was located in Texas 

and not at any other convention center across the country is completely random and fortuitous and 

not the type of contact on which Americana could constitutionally be haled into a Texas court. As 

a result, Americana’s limited presence in Texas for this national conference at the direction of a 

non-party and before it entered into the Agreement with Laughlin was in no way an effort by 

Americana to purposefully avail itself of the privilege of conducting business in Texas in 

connection with the Agreement and cannot serve as a basis to find specific jurisdiction in this case. 

5

 Even had Americana attended the conference for the purpose of consummating the Agreement—which it did 

not—the Fifth Circuit has held that trips by a company’s executives to affirmative close a business deal do not rise to 

the level of minimum contacts. Hydrokinetics, Inc. v. Alaska Mechanical, Inc., 700 F.2d 1026, 1029 (5th Cir. 1983). 

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Elec. & Gas Tech., Inc. v. Universal Communication Sys., Inc., No. 3:03–CV–1798–G, 2003 WL 

22838719, at *4–5 (N.D. Tex. Nov. 24, 2003) (declining to find jurisdiction when defendant 

visited the forum to conduct business with a non-party as such a contact was too attenuated). 

Laughlin’s allegations that Americana “intended to leverage Laughlin’s existing 

relationships to grow Americana Pro’s products in the Texas market” are conclusory, incorrect, 

and insufficient to subject Americana to jurisdiction in Texas in any event. ECF No. 9, ¶ 6. 

Laughlin fails to allege any specific facts that would support his conclusory allegation that 

Americana intended to serve the Texas market through the Agreement. Moreover, as discussed 

above, Americana avers that it did not enter into the Agreement with any specific intent of serving 

the Texas Market. App. 3, ¶ 8. On the contrary, Americana’s Agreement with Laughlin is the best 

evidence of the parties’ intent, which contemplated national brand exposure for Americana at 

NHRA events around the country, the vast majority of which were not in Texas. Id. As a result, 

these allegations do not support exercising personal jurisdiction over Americana in Texas. Null v. 

Bank One of Columbus, N.A., 988 F.2d 1210, at *2 (5th Cir. 1993) (unpublished) (“[N]ational 

advertising alone cannot establish specific jurisdiction.”); United Servs. Automobile Assoc. v. New 

Day Financial, LLC, No. SA–17–CV–759–OLG, 2018 WL 1899807, at *2 (W.D. Tex. Mar. 8, 

2018). 

Finally, Americana does not sponsor any other Texas-based racecar drivers or require that 

any of its sponsored drivers perform in Texas. App. 1–2, ¶ 2. Rather, Americana has relationships 

with a handful of drivers from all over the country. Id. And those drivers, like Laughlin did, display 

Americana’s logo on their racing equipment at wherever they choose to race in the NHRA circuit. 

Id. However, even if Americana had contracted with other Texas drivers—which it has not—such 

a contact has no relation to the Agreement and cannot form the basis of specific jurisdiction. King, 

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DEFENDANT AMERICANA’S MOTION TO DISMISS PAGE 12 

2008 WL 2620099, at *6 (citing Helicopteros, 466 U.S., 414 n. 8). Accordingly, these allegations 

do nothing to establish specific personal jurisdiction over Americana. 

In sum, Americana did not purposefully avail itself to a Texas forum and any contacts with 

Texas were, at best, based on Laughlin’s unilateral decision to perform its obligations under the 

Agreement there. Because Laughlin has failed to show this Court has specific jurisdiction over 

Americana, this Court should dismiss for want of personal jurisdiction. 

2. Subjecting Americana to the jurisdiction of Texas would violate standards of 

reasonableness and fairness. 

Even if Americana had sufficient contacts with Texas—which it does not—the Court must 

still consider whether exercising personal jurisdiction over Americana would offend traditional 

notions of fair play and substantial justice. In order to determine whether the exercise of personal 

jurisdiction is reasonable and fair, a court must weigh (1) the burden on the defendant, (2) the 

forum’s interest in adjudicating the dispute, (3) the plaintiff’s interest in obtaining convenient and 

effective relief, (4) the interstate judicial system’s interest in obtaining the most efficient resolution 

of controversies, and (5) the shared interest of the states in furthering fundamental substantive 

social policies. Asahi Metal Indus. Co. v. Super. Ct. of Cal., 480 U.S. 102, 113 (1987). A balancing 

of these factors establishes that exercising personal jurisdiction over Americana would be unfair. 

Here, Laughlin has not shown Americana has the minimum contacts necessary to be 

subjected to jurisdiction in Texas. Moreover, Americana is not based in Texas and maintains no 

presence in Texas. App. 1, ¶ 2. Rather, it is a single member LLC based in Syracuse, New York. 

Id. Thus, Americana would have to incur significant expenses and burden defending this suit in 

Texas. Requiring Americana to defend a breach of contract case in Texas would also be unfair 

considering that the Agreement did not contemplate performance in Texas or governance by Texas 

law and therefore did not put Americana on notice that it would be haled into a Texas court to 

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DEFENDANT AMERICANA’S MOTION TO DISMISS PAGE 13 

resolve any disputes. Texas also has limited interest in adjudicating a dispute involving a contract 

calling for performance all over the country by Laughlin, including potentially in New York, based 

on an alleged breach by a New York company that has no ties to Texas. Moreover, the most 

effective and efficient resolution of the controversy would be in New York, where Americana has 

its business presence and assets. Balancing these factors, and in light of the lack of minimum 

contacts, the Court should dismiss this action because exercising personal jurisdiction over 

Americana would also offend the traditional notions of fair play or substantial justice. 

3. Americana was not properly served in this case, depriving the Court of personal 

jurisdiction. 

“The validity or invalidity of service of a defendant in a federal district court is governed 

by federal law, and the federal law of service is provided by Federal Rule of Civil Procedure 4.” 

BHTT Entertainment, Inc. v. Brickhouse Café & Lounge, L.L.C., 858 F.3d 310, 315 (5th Cir. 2017). 

However, where the case has been removed to federal court, “state law ascertains whether service 

was properly made prior to removal.” Fields v. SDH Services E., LLC, 

No. 4:18-CV-01438, 2019 WL 1098369, at *2 (S.D. Tex. Mar. 7, 2019) (citing Freight Terminals, 

Inc. v. RyderSys., Inc., 461 F.2d 1046,1052 (5th Cir. 1972)). Because Laughlin commenced the 

State-Court Suit before Americana’s removal, Texas law controls.

Under Texas law, when service is effected via Texas’s long-arm statute through the Texas 

Secretary of State, the return of service filed by the Laughlin must show that the Secretary of State 

complied with the requirements of the long-arm statute by forwarding service of process to the 

address of the defendant’s home or home office. See Barnes v. Frost Nat’l Bank, 840 S.W.2d 747, 

749 (Tex. App.—San Antonio 1992, no writ). Where the plaintiff provides an incorrect address to 

the Secretary of State, the defendant does not receive notice, and “due process would not be 

observed.” Id. at 750. Thus, service of process is invalid if the Secretary of State sends the 

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DEFENDANT AMERICANA’S MOTION TO DISMISS PAGE 14 

summons and complaint to a nonresident defendant using an incorrect address. See Bludworth 

Bond Shipyard, Inc. v. M/V Caribbean Wind, 841 F.2d 646, 650 (5th Cir. 1988) (reversing default 

judgment because service of process was not sent to defendant’s current and correct address); GMR 

Gymnastics Sales, Inc. v. Walz, 117 S.W.3d 57, 59 n.1 (Tex. App.—Fort Worth 2003, pet. denied) 

(reversing default judgment because return of service did not show that Secretary of State complied 

with long-arm statute by forwarding service of process to defendant’s correct address); Comm’n 

of Conts of Gen. Exec. Comm. of Petroleum Workers Union of Mexico v. Arriba, Ltd., 882 S.W.2d 

576, 585 (Tex. App.—Hous. [1st Dist.] 1994, no pet.) (citing Royal Surplus Lines Ins. Co. v. 

Samaria Baptist Ch., 840 S.W.2d 382, 383 (Tex. 1992)). 

Furthermore, Texas law requires that, when service of process is effected by certified mail, 

the return of service must contain the return receipt with the addressee’s signature. TEX. R. CIV.

P. 107(c); see Latter & Blum of Tex., LLC v. Murphy, No. 02-17-00463-CV, 2019 WL 3755765, 

at *9 (Tex. App.—Fort Worth Aug. 8, 2019, pet. denied) (mem. op.); Asset Protection & Sec. 

Servs., L.P. v. Armijo, 570 S.W.3d 377, 383 (Tex. App.—El Paso 2019, no pet.); Lucky v. Haynes, 

No. 3:12–CV– 2609–B, 2013 WL 3054042, at *2 (N.D. Tex. June 18, 2013) (“[W]hen certified 

mail has been selected as the method of service, Texas law requires that the return receipt be signed 

by the addressee.”). “If the return receipt is signed by someone else, service of process is 

defective.” Hennington v. United Parcel Service, Inc., No. 4:18-CV-00520, 2018 WL 6267768, at 

*2 (S.D. Tex. Nov. 30, 2018). At base, lack of strict compliance with the law relating to proper 

service renders any attempted service invalid. DSF Lux Int’l v. Specialized Fin. Partners, L.L.C., 

No. A-07-CA-742-LY, 2009 WL 10670341, at *2 (W.D. Tex. Sept. 18, 2009) (“If service of 

process is not executed in strict compliance with Texas state law, the court cannot acquire proper 

jurisdiction over the defendant.”) (citing Whitney v. L & L Realty Corp., 500 S.W.2d 94, 96 (Tex. 

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DEFENDANT AMERICANA’S MOTION TO DISMISS PAGE 15 

1973). Even actual notice, without proper service, does not grant the court personal jurisdiction 

over the defendant. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). 

 Here, the Summons and Complaint were not served by certified mail, return receipt 

requested at the correct address for the registered agent for Americana. The Original Petition and, 

consequently, the Citation and the Secretary of State, omitted Americana’s mailbox, or “suite” 

number from the mailing address. This resulted in the Summons and Complaint being served on 

an employee for Post Etc., and not Americana. No return receipt was filed in this case, and the 

Secretary of State’s Certification only states that the return receipt “was received in this office 

dated June 21, 2022, bearing signature,” but does not indicate whose signature the return receipt 

bore. On information and belief, an employee for Post Etc. signed the return receipt. Mr. Pikarsky 

avers, however, that he did not sign the return receipt. App. 3, ¶ 6. Thus, Laughlin’s purported 

service of process on Americana was defective and insufficient under Rule 12(b)(5) because the 

return receipt was not signed by Mr. Pikarsky and because it was not mailed to Americana’s correct 

address as reflected in public records of the New York Department of State Division of 

Corporations. Absent proper service of process, this Court lacks personal jurisdiction over 

Americana. See Bludworth 841 F.2d 646, 650. 

V. 

CONCLUSION 

This Court lacks personal jurisdiction over Americana. Americana is a New York Limited 

Liability Company that maintains its principal place of business in New York. Americana does not 

do business in Texas and has not purposefully availed itself of Texas’s laws. In fact, Americana’s 

only connection with the State of Texas with respect to this lawsuit is a singular contract it entered 

into with a Texas citizen. Because the contract did not require performance in Texas, this is 

insufficient to find personal jurisdiction over Americana. Moreover, Laughlin failed to effectuate 

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DEFENDANT AMERICANA’S MOTION TO DISMISS PAGE 16 

proper service upon Americana. This failure of service likewise deprives the Court of personal 

jurisdiction over Americana. Based on the foregoing, the Court must dismiss this action for want 

of jurisdiction. 

Respectfully submitted, 

/s/ Adam Rothey 

MARK D. SMITH 

State Bar No. 18648650 

msmith@thompsonhorton.com 

K. ADAM ROTHEY 

State Bar No. 24051274 

arothey@thompsonhorton.com 

LEAH C. NORTHENER 

State Bar No. 24101034 

lnorthener@thompsonhorton.com 

THOMPSON & HORTON LLP

500 North Akard Street, Suite 3150 

Dallas, Texas 75201 

(972) 853-5115 – Telephone 

(972) 692-8334 – Facsimile

Attorneys for Defendant Americana Pro 

Detailing Products LLC 

CERTIFICATE OF SERVICE 

The undersigned certifies that a copy of the foregoing was served on counsel of record for 

all parties via the Court’s electronic filing system on this 27th day of October, 2022. 

Sidney T. Lange 

Ross A. Vitek 

Vitek Lange PLLC 

300 Throckmorton St., Suite 650 

Fort Worth, Texas 76102 

/s/ Adam Rothey 

K. ADAM ROTHEY 

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