* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

September 4, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 06-10923

A. CAL ROSSI

Plaintiff-Appellant,

VERSUS

FRANK WOHL, Individually, LANKLER SIFFERT & WOHL LLP,

Defendants-Appellees.

Appeal from the United States District Court

For the Northern District of Texas, Dallas Division

3:06-CV-292

Before HIGGINBOTHAM, DAVIS and BARKSDALE, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:*

This is an appeal from the district court’s order dismissing

the complaint of A. Cal Rossi, Jr. on defendants’ motion to dismiss

for lack of personal jurisdiction. Because we find that Rossi

presented a prima facie case of specific personal jurisdiction over

the defendants, we vacate and remand for further proceedings.
2

I.

A. Cal Rossi is a Texas resident. He hired defendants Frank

Wohl, a New York lawyer, and his firm, Lankler Siffert & Wohl LLP,

to represent him when he was indicted on charges of racketeering

and securities fraud in the Southern District of New York. The

firm has no offices in Texas. 

Rossi was acquitted, but later refused to pay invoices

submitted by his lawyers, claiming that the law firm misrepresented

his obligation to pay for certain expert expenses. Specifically he

claimed that the law firm had told him that he would not be liable

for expert and consulting fees unless Rossi’s employer first

refused to pay, and, in the case of the fees charged by FTI

Consultants, Inc. (“FTI”), that he would not be liable at all. The

law firm sued for payment in the Southern District of New York and

was successful in obtaining a summary judgment against Rossi. The

firm then obtained an order for registration in Texas of the New

York judgment. Also, the firm obtained three orders for ex parte

turnover in the Northern District of Texas. Finally, the firm has

filed a garnishment proceeding against Rossi and his employer in

Texas State Court. 

In sum, both defendants, the law firm and Frank Wohl, (1)

placed hundreds of phone calls to Texas, (2) sent invoices

exceeding $4 million to Texas, (3) made three trips to Texas to

interview witnesses and meet with Rossi, and (4) allegedly

committed a tort in the State of Texas by making false
3

representations to Rossi in Texas. Further, the law firm alone (1)

contracted to perform legal services for a client living and

working in Texas, and (2) registered judgments against Rossi in

Texas courts.

Rossi filed this suit in the Northern District of Texas,

seeking recovery from the law firm for breach of fiduciary duty and

fraud, based in part on the law firm’s misrepresentation concerning

his liability for expert fees. The district court dismissed the

suit for lack of personal jurisdiction over Wohl or his firm.

II.

We review the district court’s dismissal for lack of personal

jurisdiction de novo. Alpine View Co. Ltd. v. Atlas Copco AB, 205

F.3d 208, 214 (5th Cir. 2000). In a diversity action, the court may

exercise personal jurisdiction over a nonresident defendant if (1)

the Texas long-arm statute provides a basis for personal

jurisdiction over the defendant and (2) exercise of personal

jurisdiction is consistent with the Constitution’s due process

requirements. Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002).

Because the Texas long-arm statute “reaches to the constitutional

limits,” we need only consider the due process analysis. Id. at

469-70. 

The Due Process Clause permits the exercise of personal

jurisdiction over a nonresident defendant when “(1) that defendant

has purposefully availed himself of the benefits and protections of

the forum state by establishing minimum contacts with the forum
1 Although both parties submitted affidavits and other evidence

in support of their positions on the motion to dismiss, the

district court’s Memorandum Opinion and Order on the Motion to

Dismiss makes it clear that it treated the issue as one decided on

the basis of the pleadings and without an evidentiary hearing.

4

state, and (2) the exercise of jurisdiction over that defendant

does not offend traditional notions of fair play and substantial

justice.” Alpine View, 205 F.3d at 215 (citations and internal

quotation marks omitted). Minimum contacts can be established

under two categories: specific or general jurisdiction. Id. The

arguments before the district court focused on specific

jurisdiction, which exists when a nonresident defendant has

“purposefully directed its activities at the forum state and

litigation results from the alleged injuries that arise out of or

relate to those activities.” Id.(citations and internal quotation

marks omitted).

When the district court dismisses for lack of personal

jurisdiction without holding an evidentiary hearing, as occurred in

this case, we review the dismissal to determine whether the

plaintiff presented a prima facie case supporting jurisdiction.1

Id. In doing so, we accept the plaintiff’s uncontroverted and

nonconclusory factual allegations as true and resolve all

controverted allegations in the plaintiff’s favor. Id.

III.

The district court noted that the plaintiff sought to assert
5

specific jurisdiction on the basis of the following contacts or

activities by the defendants: (1) contracting with and agreeing to

represent him, a Texas citizen, and sending bills and placing phone

calls to Texas seeking payment for services rendered, (2)

communicating false information to Plaintiff in Texas, and (3)

filing the collection actions in state and federal court in Texas.

The district court correctly considered and dismissed the contacts

in items (1) and (3) as insufficient to establish personal

jurisdiction over either Wohl or his firm. 

The district court however did not address item (2), whether

communicating false information to the plaintiff in Texas presents

a sufficient basis on which specific jurisdiction could be

established. Rossi’s complaint alleges the following relevant

facts: (1) “venue is proper in this Court in that some, if not all,

of the misrepresentations described below were made by the

Defendants to Rossi while Rossi was located in the Northern

District of Texas”; (2) “[m]ore specifically, the Defendants made

certain actionable misrepresentations of fact that were directed to

a citizen of Texas (Rossi) in Texas”; and (3) “[b]y way of example

only, the Defendants represented to Rossi, orally and in writing,

that he would not be responsible for paying any monies to FTI for

work/services rendered by FTI.” Several cases from this circuit

make it clear to us that these allegations are sufficient to raise

a prima facie case of specific personal jurisdiction against the

defendants. 
6

In Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208 (5th Cir.

1999), the defendant, a German attorney, provided legal services

to the plaintiff, an Alaskan corporation based in Texas, to form

several German companies. During these transactions, the defendant

made various phone calls and sent faxes and letters to Texas, the

forum state. Plaintiff alleged that these communications contained

fraudulent misrepresentations. Plaintiff also alleged that the

defendant made intentional, material misrepresentations while

attending meetings in Texas. In addressing whether these

allegations were sufficient to establish a prima facie case of

personal jurisdiction against the defendant, we stated, “Even if

the parties formed their relationship in Germany, however, a single

act by Brandt directed toward Texas that gives rise to a cause of

action by Wien Air can support a finding of minimum contacts.” Id.

at 211. In addition, “[w]hen the actual content of communications

with a forum gives rise to intentional tort causes of action, this

alone constitutes purposeful availment.” Id. at 213. 

In Lewis v. Fresne, 252 F.3d 352 (5th Cir. 2001), Lewis alleged

that defendant Rosenfeld participated in a phone conversation

between himself and Fresne that was designed to convince Lewis to

make a loan on the basis of several misrepresentations. Rosenfeld

did not correct the misrepresentations and prepared and sent loan

documents and stock certificates to Lewis in Texas that contained

fraudulent misstatements regarding the asset that was to secure the

loan. We found these allegations to be sufficient evidence of
2 On remand, if requested by the parties, the district court may

reconsider this issue following a Rule 12(b)(2) hearing.

7

minimum contacts because a “single act by a defendant can be enough

to confer personal jurisdiction if that act gives rise to the claim

being asserted.” Id. at 358-59. See also Streber v. Hunter, 221

F.3d 701 (5th Cir. 2000) (Defendant Blazier purposefully availed

himself of Texas laws when he gave tax advice that he knew would be

received by a Texas client. At least some of the allegations

forming the basis of the lawsuit arose from Blazier’s contacts with

Texas, including participation in a mediation in Texas. The

exercise of personal jurisdiction over Blazier was appropriate.) 

We see no basis to distinguish this case from the above

authority. Rossi alleges acts by the defendants in Texas that give

rise to at least one of the claims he asserts against the

defendants. Accordingly, he has established a prima facie case

that the defendants had minimum contacts with Texas because they

“purposefully directed . . . activities at the forum state and the

litigation results from alleged injuries that arise out of or

relate to those activities.” Alpine View, 205 F.3d at 215

(internal quotation marks omitted).2

Once a plaintiff has established minimum contacts with the

forum state, the burden shifts to the defendant to show that the

assertion of jurisdiction over him would be unfair. Wien Air, 195

F.3d at 215. Although the district court did not reach this stage

of the analysis, it is rare that a defendant can make such a
8

compelling case once minimum contacts have been shown. Id. “If a

cause of action for fraud committed against a resident of the forum

is directly related to the tortious activities that give rise to

personal jurisdiction, an exercise of jurisdiction likely comports

with the due process clause, given the obvious interests of the

plaintiff and the forum state.” Id.

IV. 

For the foregoing reasons, we vacate the judgment of the

district court and remand this case for further proceedings. 

VACATED and REMANDED.