IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-20064

Summary Calendar

E. DRAKE, 

 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.

United States Court of Appeals

Fifth Circuit

FILED

October 18, 2018

Lyle W. Cayce

Clerk

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No. 18-20064

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Plaintiff-Appellant Eric Drake, proceeding pro se, sued DefendantAppellees (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 C32.1 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, 2018 WL 

4261989, at *1 (5th Cir. Sept. 6, 2018).

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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, 768 F.3d 429, 431 (5th Cir. 2014).

3 Id. at 433 (quoting Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 271 (5th Cir. 

2006)).

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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, 801 F.2d 773, 778 (5th Cir. 1986)). 

5 Id. (quoting Monkton, 768 F.3d at 433).

6 Sangha v. Navig8 ShipManagement Private Ltd., 882 F.3d 96, 101–02 (5th Cir. 2018) 

(quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).

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