(

)

Plainti IT.

v. MEMORANDUM & ORDER

TRIDENT STEEL CORPORATION. at al.,

Defendants.

This matter comes before the Court on a renewed motion to dismiss on the basis of/drum

non conveniens tiled by Defendants Trident Steel Corporation (Trident) (ECF No. 25.). This Court

previously denied Tridents motion to dismiss, or in the alternative, to stay the New Jersey Action,

on December 14,2010 (ECF No. 15.). For the following reasons, Trident’s motion is denied without

prejudice.

I.

The Court writes for the parties in this dispute and therefore only offers a brief recitation

of the facts.

This is a breach of contract and breach of warranty dispute between Plaintiff Morris

Industries, Inc. (Morris) and Trident regarding allegedly defective oil pipe couplings. On September

8. 2009, Trident sued Morris in Texas (hereinafter “Texas Action”) tbr breach of contract and breach

of warranties. Subsequently, on December 23. 2009. Moms filed an action against Trident in New

Jersey Superior Court. Trident removed the action to this Court on Jul 8. 2010.
First Judicial District in Houston. Texas. contesting the trial cour(s finding of personal jurisdiction.During the pendencv ol that appeal. Morris tiled the instant action against Trident in the Superior

Court of New Jersey and the instant action was removed to this Court.

Trident moved for dismissal, or in the alternative, a stay of the New Jersey Action on July

30, 2010. However, during the pendency of that motion, on November 1 0, 201 0, the Texas Court

ofAppeals for the First District ofTexas ruled on Morris’s interlocutory appeal in the Texas Action.

Morris Jodus.. Inc. v. Trident Steel Corp., No. 01-09-01094(CV) (Tex. App. Nov. 10. 2010). TheCourt of Appeals concluded that the trial court erred in finding personal jurisdiction over Morris.

The Court ofAppeals remanded the Texas Action back to the trial court for consideration ofwhether

Trident should be given additional time to conduct jurisdictional discovery. Consequently, on

December 14, 2010, this Court denied Trident’s motion to dismiss, or in the alternative. to stay the

New Jersey Action (ECF No. 1 5.). The Court noted at that time:

[Tihis Court will deny, without prejudice, Trident’s motion to

dismiss based on the doctrine offorum non conveniens because it isnot clear that the Texas Action has jurisdiction over Morris. Further,it is unclear whether this Court may utilize this doctrine in light ofthe

fact that the alternate forum is a state court. Nevertheless, Trident

may renew its motion to dismiss on this basis should the trial court in

the Texas Action subsequently conclude that Morris is subject to its

jurisdiction.
the kind of systematic and continuing contacts” necessary for in personam jurisdiction because

Morris does not have an office in Texas. it does not market its goods in Texas. and the contract

underlying this dispute was not performed in Texas. Rather. the “only real connection” to Texas was

delivery of’ the couplings, which does not constitute purposeful availment on the part of’ Morris.

Following Morris’s argument, Judge Kirkland questioned Trident as to what new evidence

establishing jurisdiction that it has gained since the Court of Appeals’s determination that the Court

did not have jurisdiction over Morris. Trident indicated to the Court that it did not believe that the

Court of Appeals had evidence ol Morris’s transactions in the appeal record, namely “21 purchase

orders between Trident and Morris” and “53 transactions that occurred within the last five years

between Morris and 21 other Texas residents.” In addition. Trident represented that Morris sold $2.2

million worth of products to Trident in the course of 20 transactions between the companies.

Further, Trident opined that the Court of Appeals was not aware of a prior hearing before the trial

court because there was “no reporter’s record of that prior hearing.”

Thereafter. Morris made some rebuttal arguments and at the close of TvIorris’s rebuttal the

Court indicated that it would sign an order denying Morris’s Special Appearance. 1-lowever. it does

not appear that the Court placed any findings of fact or conclusions on the record:

THE COURT: Oka. Think you have a good enough

record?
[TRIDENT]: We have an order stating that I believe

— states that it was denied.

THECOURT: Allright. Well,justgivemetheorder

and we’ll go with that

[TRIDENT]: We also have findings of fact and

conclusions of law which would, I think be beneficial to the

record and we are entitled to request that

THE COURT: Why don’t you pmvide him the

opportunity to review those, file his objections and if y’all can

agree on them then fabulous. Ifyou can’t then we’ll take it upat another day.

[TRIDENT]: We will do that, Your Honor.

[MORRIS]: Your Honor, we would ask for a stay

pending appeal.

THE COURT: I’m not inclined to grant that at the

moment.

We’ll go offthe record here.

It is unclear whether the Texas trial court ever entered Trident’s findings offact or conclusions of

law. However, on May 2, 2011, Morris filed a Notice ofAccelerated Interlocutory Appeal to the

Court of Appeals for the First District of Texas. Trident filed its renewed motion to dismiss on thebasis offorwn non conveniens with this Court on May 13, 2011. At this time, it does not appearthat

the Court ofAppeals has handed down a ruling on the Interlocutory Appeal.

4
plaintiff’s convenience, or when the chosen forum [is] inappropriate because of considerations

affecting the court’s own administrative and legal problems” PierAireraJi Co. v, Reyno, 454 US.

235, 241 (1981) (internal quotation marks and citations omitted). Although the Court indicated to

Trident that it may renew its motion ifthe trial court concluded that it had jurisdiction over Morris

and the trial Court in Texas has in fact denied Morris’s Special Appearance, Trident convenientlyfailed to indicate in its moving papers that Morris filed an Interlocutory Appeal with the Court of

Appeals challenging the Texas trial court’s denial of its Special Appearance. Consequently, theCourt is presented with virtually the same jurisdictional dilemma that was before it in December — it is still unclear whether the Texas Action has jurisdiction over Morris. Accordingly, dismissal of

this action on the basis offorum non conveniens at this time is again premature.

Therefore, IT IS on this 5th day ofJuly 2011, ORDERED as follows:

1. Trident’s renewed motion to dismiss on the basis of /örum non conveniens is

dismissed without prejudice. (ECF No. 25).

2. Following a ruling on the Accelerated Interlocutory Appeal, the parties are to submit

a letter via ECF notifying the Court of the decision and a copy of such decision.

3. Should Trident seek in the future to renew the instant motion to dismiss on the basis

offorum non con veniens, Trident must seek leave from the Court.

Di 

PETER 0. SHERIDAN, US.DJ.

July 5, 2011