United States District Court

EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

STEVE PALMER,

Plaintiff,

v. 

SCOTT RUTHERFORD, 

Defendant. 

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Civil Action No. 4:23-cv-00095

Judge Mazzant

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendant’s Motion to Dismiss for Lack of Personal 

Jurisdiction (Dkt. #6). Having considered the motion and the relevant pleadings, the Court finds 

that the motion should be GRANTED. 

BACKGROUND

On February 6, 2023, Plaintiff Steve Palmer (“Palmer”) filed an action against Defendant 

Scott Rutherford (“Rutherford”) for breach of contract, among other causes of action (Dkt. #1).

Palmer is a resident of Grayson County, Texas (Dkt. #1 at p. 2). Rutherford is a resident of Brevard 

County, Florida (Dkt. #1 at p. 2).

Palmer owned a boat that needed repairs, so he posted on Facebook seeking repair services 

(Dkt. #1 at p. 2). Palmer alleges that Rutherford “noticed [his] post on social media . . . and held 

out to [Palmer] that he was qualified to make repairs on [the] boat” (Dkt. #1 at p. 2). Palmer further 

alleges that Rutherford “solicited [Palmer] for his services over the Internet” (Dkt. #1 at p. 2).

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Palmer and Rutherford entered into an oral1agreement over Facebook for Rutherford to 

make the boat repairs (Dkt. #1 at pp. 2–3). Palmer alleges that Rutherford knew Palmer was a 

resident of Texas (Dkt. #8 at p. 8). Palmer shipped his boat to Rutherford in Brevard County, 

Florida to make the repairs (Dkt. #1 at p. 2). Palmer alleges that Rutherford requested that payment 

be sent via PayPal prior to completing the work (Dkt. #1 at p. 2). Palmer further alleges that 

Rutherford stayed in continuous contact with him while the repairs were being made (Dkt. #8 at 

p. 7).

According to Palmer, he severed the relationship with Rutherford because he paid for

repairs that were not made (Dkt. #1 at p. 1, 3). Rutherford, however, alleges that he was not 

compensated for his repair work and is owed money (Dkt. #4 at p. 1). 

On May 30, 2023, Rutherford filed his Motion to Dismiss for Lack of Jurisdiction (Dkt. 

#6). On August 11, 2023, Palmer filed his Response in Opposition to the Motion to Dismiss for 

Lack of Jurisdiction (Dkt. #8).

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(2) requires a court to dismiss a claim if the court does 

not have personal jurisdiction over the defendant. FED. R. CIV. P. 12(b)(2). After a non-resident 

defendant files a motion to dismiss for lack of personal jurisdiction, it is the plaintiff’s burden to 

establish that in personam jurisdiction exists. Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990) 

(citing WNS, Inc. v. Farrow, 884 F.2d 200, 202 (5th Cir. 1989)).

1 Palmer describes the parties’ agreement as an “oral agreement” (Dkt. #1 at p. 3). However, Palmer also states that 

the parties “negotiated their contract over the internet, using Facebook” (Dkt. #1 at p. 2 n.1). It is unclear whether the 

agreement was reached orally or via a written messaging service on Facebook. Regardless, the Court’s analysis is the 

same.

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To satisfy that burden, the party seeking to invoke the court’s jurisdiction must “present 

sufficient facts as to make out only a prima facie case supporting jurisdiction,” if a court rules on a 

motion without an evidentiary hearing. Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 215 

(5th Cir. 2000). When considering the motion to dismiss, “[a]llegations in [a] plaintiff’s complaint 

are taken as true except to the extent that they are contradicted by defendant’s affidavits.” Int’l 

Truck & Engine Corp. v. Quintana, 259 F. Supp. 2d 553, 557 (N.D. Tex. 2003) (citing Wyatt v. 

Kaplan, 686 F.2d 276, 282–83 n.13 (5th Cir. 1982)); accord Black v. Acme Mkts., Inc., 564 F.2d 681, 

683 n.3 (5th Cir. 1977). Further, “[a]ny genuine, material conflicts between the facts established 

by the parties’ affidavits and other evidence are resolved in favor of plaintiff for the purposes of 

determining whether a prima facie case exists.” Id. (citing Jones v. Petty-Ray Geophysical Geosource, 

Inc., 954 F.2d 161, 1067 (5th Cir. 1992)). 

ANALYSIS

Rutherford asserts that the Court lacks personal jurisdiction because: 1) he resides in 

Brevard County, Florida; and 2) all the work performed on the boat occurred in Brevard County, 

Florida (Dkt. #6 at p. 1).2 Palmer does not refute these allegations, but rather argues that 

Rutherford’s contacts with the state of Texas are sufficient to establish personal jurisdiction (Dkt. 

#8 at p. 6).

The court conducts a two-step inquiry when a defendant challenges personal jurisdiction. 

Frank v. P N K (Lake Charles) L.L.C., 947 F.3d 331, 336 (5th Cir. 2020). First, absent a controlling 

federal statute regarding service of process, the court must determine whether the forum state’s 

2 Rutherford is a pro se defendant. Though his motion to dismiss provides very little argument and only a numbered 

list of case citations without context, he has sufficiently challenged the Court’s personal jurisdiction in these 

circumstances. See Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (explaining a pro se complaint 

is to be “liberally construed”).

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long-arm statute confers personal jurisdiction over the defendant. Id. And second, the court 

establishes whether the exercise of jurisdiction is consistent with due process under the United 

States Constitution. Id.

Here, the Texas long-arm statute confers jurisdiction to the limits of due process under the 

Constitution. Command-Aire Corp. v. Ont. Mech. Sales and Serv. Inc., 963 F.2d 90, 93 (5th Cir. 

1992). Therefore, the sole inquiry that remains is whether personal jurisdiction offends or 

comports with federal constitutional guarantees. Bullion, 895 F.2d at 216. The Due Process Clause 

permits the exercise of personal jurisdiction over a non-resident defendant when the defendant has 

established minimum contacts with the forum state “such that maintenance of the suit does not 

offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 

U.S. 310, 316 (1945). 

Those “minimum contacts” can give rise to two types of personal jurisdiction: general or 

specific. See, e.g., Frank, 947 F.3d at 336. General jurisdiction exists only when the defendant’s 

contacts with the forum are so “‘continuous and systematic’ as to render them essentially at home 

in the forum State.” Daimler AG v. Bauman, 571 U.S. 117, 127 (2014) (quoting Goodyear Dunlop 

Tires Operations., S.A. v. Brown, 564 U.S. 915, 919 (2011)). Specific jurisdiction exists if the asserted 

claims arise out of or relate to the defendant’s contacts with the forum. See, e.g., Carmona v. Leo 

Ship Mgmt., Inc., 924 F.3d 190, 197 (5th Cir. 2019). 

I. General jurisdiction over Rutherford does not exist.

As stated, general jurisdiction exists only when the defendant’s contacts with the forum 

state are so “‘continuous and systematic’ as to render them essentially at home in the forum 

State.” Daimler AG, 571 U.S. at 127 (quoting Goodyear, 564 U.S. at 919); see Cent. Freight Lines v. 

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APA Transp. Corp., 322 F.3d 376, 381 (5th Cir. 2003) (citing Helicopteros Nacionales de Colum., S.A. 

v. Hall, 466 U.S. 408, 414 n.8 (1984)). Substantial, continuous and systematic contact with a forum

state is a difficult standard to meet and requires “extensive contacts” between a defendant and the 

forum. Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 609 (5th Cir. 2008). “General 

jurisdiction can be assessed by evaluating contacts of the defendant with the forum over a 

reasonable number of years, up to the date the suit was filed.” Access Telecom, Inc. v. MCI 

Telecomms. Corp., 197 F.3d 694, 717 (5th Cir. 1992) (citation omitted). However, “vague and 

overgeneralized assertions that give no indication as to the extent, duration, or frequency of 

contacts are insufficient to support general jurisdiction.” Johnston, 523 F.3d at 609 (citing 

Gardemal v. Westin Hotel Co., 186 F.3d 588, 596 (5th Cir. 1999)).

Here, Palmer has not alleged that general jurisdiction exists, nor has he alleged facts 

sufficient to show that Rutherford’s contacts with the state of Texas are continuous and 

systematic. Accordingly, there is no general jurisdiction over Rutherford, and the Court turns its 

analysis to specific jurisdiction.

II. Specific jurisdiction over Rutherford does not exist.

Specific jurisdiction is proper when the plaintiff alleges a cause of action that grows out of 

or relates to a contact between the defendant and the forum state. See, e.g., Admar Int’l, Inc. v. 

Eastrock, L.L.C., 18 F.4th 783, 786 (5th Cir. 2021). In evaluating whether due process permits the 

exercise of specific jurisdiction, courts consider: (1) whether the defendant has “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 

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and reasonable.” Carmona, 934 F.3d at 193 (quoting Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 

266, 271 (5th Cir. 2006)). 

For there to be minimum contacts, a defendant must have “purposefully availed himself of 

the benefits and protections of the forum state such that he should reasonably anticipate being 

haled into court there.” Carmona, 934 F.3d at 193 (internal quotations omitted). This requirement 

is the “constitutional touchstone” of personal jurisdiction. Burger King Corp. v. Rudzewicz, 471 

U.S. 462, 474 (1985). Accordingly, establishing a defendant’s minimum contacts with the forum 

state requires contacts that are more than “random, fortuitous, or attenuated, or of the unilateral 

activity of another party or third person.” Id. at 475. 

If the plaintiff successfully satisfies the first two prongs of the specific jurisdiction analysis, 

“the burden shifts to the defendant to defeat jurisdiction by showing that its exercise would be 

unfair or unreasonable.” Seiferth, 472 F.3d at 271. In this inquiry, the Court examines five factors: 

(1) the burden on the nonresident defendant; (2) the forum state’s interests; (3) the plaintiff’s 

interest in securing relief; (4) the interest of the interstate judicial system in the efficient 

administration of justice; and (5) the shared interest of the several states in furthering fundamental 

social policies. Burger King, 471 U.S. at 477. “[I]t is rare to say the assertion [of jurisdiction] is 

unfair after minimum contacts have been shown.” McFadin v. Gerber, 587 F.3d 753, 760 

(5th Cir. 2009) (quoting Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir. 1999)).

A. Rutherford has not purposefully availed himself of the privilege of 

conducting business in Texas.

Purposeful availment is the “constitutional touchstone” of personal jurisdiction. 

Carmona, 924 F.3d at 193 (quoting Burger King, 471 U.S. at 474). Accordingly, specific jurisdiction 

is appropriate only where the defendant “purposefully availed [himself] of the privilege of 

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conducting activities in-state, thereby invoking the benefits and protections of the forum state’s 

laws.” Herman v. Cataphora, Inc., 730 F.3d 460, 464 (5th Cir. 2013). 

“When determining whether a court has personal jurisdiction over a breach of contract 

claim, ‘only those acts which relate to the formation of the contract and the subsequent breach are 

relevant,’ including ‘prior negotiations and contemplated future consequences, along with the 

terms of the contract and the parties’ actual course of dealing.’” Danziger & De Llano, L.L.P. v. 

Morgan Verkamp, L.L.C., 24 F.4th 491, 500 (5th Cir. 2022) (quoting Trois v. Apple Tree Auction 

Ctr., Inc., 882 F.3d 485, 489 (5th Cir. 2018)). Minimum contacts are not established where a 

nonresident merely contracts with a forum resident. Id. (citing Moncrief Oil Int’l Inc. v. OAO 

Gazprom, 481 F.3d 309, 311 (5th Cir. 2007)). “Moreover, a plaintiff’s unilateral activities in Texas 

do not constitute minimum contacts where the defendant did not perform any of its obligations in 

Texas, the contract did not require performance in Texas, and the contract is centered outside of 

Texas.” Id. (citing Moncrief, 481 F.3d at 312). “An exchange of communications in the course of 

developing and carrying out a contract also does not, by itself, constitute the required purposeful 

availment of the benefits and protections of Texas law.” Id. (citing Moncrief, 481 F.3d at 312).

The main pragmatic account is reasonable expectations. See Revell v. Lidov, 317 F.3d 467, 

476 (5th Cir. 2002) (“[I]n the main a [sic] pragmatic account of reasonable expectations—if you 

are going to pick a fight in Texas, it is reasonable to expect that it be settled there.”). However, 

“[m]ere foreseeability, standing alone, does not create jurisdiction.” Moncrief, 481 F.3d at 313. The

Court also looks to where the hub of the parties’ activities is. See id. at 312 (“[O]ur finding of 

jurisdiction...was supported not only by foreseeability, but also by the fact that the forum state was 

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‘clearly the hub of the parties’ activities’”) (quoting Miss. Interstate Exp., Inc. v. Transpo, Inc., 681 

F.2d 1003, 1008–09 (5th Cir. 1982)). 

Here, while in Texas, Palmer posted on the internet seeking repair services (Dkt. #1 at p. 

2). Rutherford, while in Florida, is alleged to have “noticed the post” and engaged in discussion 

with Palmer about repairing the boat in exchange for compensation (Dkt. #1 at pp. 2–3).3 The 

parties agreed that the boat would be shipped to Florida for Rutherford to make the repairs (Dkt. 

#1 at p. 2). The boat was then shipped to Florida (Dkt. #1 at p. 2). Rutherford performed all work 

on the boat in Florida (Dkt. #6 at p. 1). 

Based on the foregoing, Palmer has not alleged facts sufficient to establish that Rutherford 

exercised minimum contacts with the state of Texas to give rise to specific jurisdiction. The only 

alleged Texas contact related to the breach of contract claim is that the parties negotiated the 

agreement while Palmer was in Texas and that the boat was shipped from Texas. To be sure, 

Rutherford did not perform any of his obligations in Texas, the contract did not require 

performance in Texas, and the contract is centered outside of Texas. See Moncrief, 481 F.3d at 312. 

And the parties’ exchange of communications in the course of developing and carrying out the 

contract cannot, by itself, constitute the required purposeful availment. See id. Texas was clearly 

not the “hub of the parties’ activities,” and it could not have been foreseeable for Rutherford to 

be haled to Texas to defend himself. See id. Accordingly, the Court’s analysis stops here. There 

3

In his Response to Rutherford’s Motion to Dismiss, Palmer alleges that Rutherford “solicited [Palmer] for his services 

over the Internet while using Facebook” (Dkt. #8 at p. 5). However, in his Complaint, Palmer provides more context, 

explaining that he, Palmer,“posted the boat on social media and sought repair services,” and Rutherford “noticed [his] 

post on social media . . . and held out to [Palmer] that he was qualified to make repairs on [the] boat” (Dkt. #1 at p. 2). 

The Court accepts the allegations in Palmer’s Complaint as true. See Int’l Truck, 259 F. Supp. 2d at 557. Based on the

specific facts alleged in the Complaint, the Court is not persuaded that Rutherford’s actions can be described as 

solicitation. Indeed, “Black’s Law Dictionary defines ‘solicitation’ in relevant part as: ‘1. The act or an instance of 

requesting or seeking to obtain something; a request or petition[.]’” United States v. Mejia-Aguilar, 575 F. App’x 233, 

238 (5th Cir. 2014) (citing Black’s Law Dictionary (9th ed. 2009)).

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are not sufficient minimum contacts for the Court to exercise specific jurisdiction. Thus, the Court 

does not have personal jurisdiction over Rutherford.

CONCLUSION

It is ORDERED that Defendant Scott Rutherford’s Motion to Dismiss for Lack of 

Personal Jurisdiction (Dkt. #6) is GRANTED.

Therefore, it is ORDERED that Plaintiff Steve Palmer’s claims for Breach of Contract, 

Common Law Fraud, Negligent Misrepresentation, Money Had and Received, Gross Negligence, 

Theft of Property, Conversion, Promissory Estoppel, and Unjust Enrichment against Defendant 

Scott Rutherford are dismissed without prejudice.

IT IS SO ORDERED.

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