UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 95-10144
Summary Calendar
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WIEN AIR ALASKA, INC.,
Plaintiff-Appellant,
versus
NORDDEUTSCHE LANDESBANK GIROZENTRALE,
d/b/a North German Central Giro Institution,
a/k/a Nord/LB, Et Al.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(4:94-CV-355-A)
_________________________________________________________________
(July 12, 1995)
Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Wien Air Alaska, Inc., appellant, contests the order
dismissing Norddeutsche Landersbank Girozentrale, d/b/a North
German Central Giro Institution, a/k/a Nord/LB and Stadt-Und
Saalkreissparkasse Halle, a/k/a Sparkasse Halle Bank, appellees,
*
Local Rule 47.5 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
for lack of personal jurisdiction. Finding no error in the
district court's judgment, we affirm.
BACKGROUND
Wien Air Alaska, Inc. ("Wien") is an Alaskan corporation
qualified to transact business in Texas. Thor K. Tjontveit
("Tjontveit"), Wien's president and chief executive officer,
approached Stadt-Und Saalkreissparkasse Halle ("SSKH") in 1990 for
the purposes of obtaining a loan so that he might purchase certain
Boeing 737 aircraft as well as portions of the former East German
state airline. Tjontveit's stated goal was to eventually establish
a new European air cargo and trucking company.
SSKH agreed to lend approximately 68,000,000 deutschmarks
("DM") to Tjontveit but requested that he incorporate two German
companies to be the nominal borrowing parties.1 These loan
agreements were made pursuant to a regulatory enactment of the
German government, and each loan document was signed by both
parties in Halle, Germany. No part of the sum withdrawn, or the
interest that accrued on it, was ever repaid, and SSKH declared the
loans to be in default. In April of 1991, SSKH sued Tjontveit in
the courts of Germany for these loan defaults. On March 31, 1994,
SSKH obtained a judgment against Tjontveit for DM 10,000,000. No
part of this German judgment has been satisfied.
In May of 1994, Wien instituted this suit claiming that
appellees defrauded it in connection with these loan agreements;
1
Tjontveit alleges that SSKH knew the loans were being made to Wien, but
the loan documents contain no mention of the U.S. company.
2
that they conspired with Wien's German attorney, Brandt, to
appropriate Tjontveit's business plans; and that appellees
conspired to convert the Boeing 737 aircraft. Wien asserts claims
against appellees for fraud, breach of contract, conspiracy, breach
of fiduciary duty, conversion, promissory estoppel, and violations
of the Texas Deceptive Trade Practices Act. Specifically, Wien
alleges that such fraud was committed through appellees' agents'
misrepresentations which occurred during a March 9, 1992 meeting in
Texas, an exchange in July of 1992 at DFW Airport, and a follow-up
phone call between an SSKH agent in Germany and Tjontveit in
Texas.2 Wien alleges SSKH's failure during these meetings
regarding SSKH's suit against Tjontveit to disclose its dealings
with Brandt, among others, was fraudulent and enough to subject the
appellees to this court's jurisdiction.
On appeal, Wien asserts that the district court erred in
granting the motion to dismiss because he applied the wrong legal
standard and resolved factual questions that were beyond the scope
of the 12(b)(2) motion. Appellant also claims that notions of fair
play and substantial justice would require a finding of specific
personal jurisdiction over the appellees.
DISCUSSION
Whether personal jurisdiction may be exercised over a
non-resident is a question of law subject to de novo review.
Ruston Gas Turbines, Inc. v. Donaldson Co., Inc., 9 F.3d 415, 418
2
Wien relies only upon the fraudulent conduct claim as providing the
nexus among appellees, the State of Texas, and this lawsuit.
3
(5th Cir. 1993). The exercise of personal jurisdiction over a
foreign defendant is appropriate only if permitted by the long-arm
statute of the state where the district court is located, and if
the exercise of jurisdiction would be constitutional. Villar v.
Crowley Maritime Corp., 990 F.2d 1489, 1495 (5th Cir. 1993), cert.
denied, 114 S.Ct. 690, 126 L.Ed.2d 658 (1994). Because the Texas
long-arm statute permits the exercise of personal jurisdiction to
the extent allowed by the constitution, the sole jurisdictional
issue is whether the exercise of personal jurisdiction would
violate the constitution. Bullion v. Gillespie, 895 F.2d 213, 217
(5th Cir. 1990).3
For due process to be satisfied, (1) the non-resident
defendant must have "minimum contacts" with the forum state
resulting from an affirmative act on the defendant's part, and (2)
the contacts must be such that the exercise of jurisdiction over
the person of the defendant does not offend "traditional notions of
fair play and substantial justice." International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer,
311 U.S. 457, 463 (1940)).
For specific jurisdiction to exist, the foreign defendant
must purposefully do some act or consummate some transaction in the
forum state, and the cause of action must arise from or be
connected with such act or transaction. Burger King Corp. v.
3
The Texas Supreme Court has held that the Texas long-arm statute,
codified at Tex. Civ. Prac. & Rem. Code Ann. §17.042, extends as far as the
constitution permits. Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990).
4
Rudzewicz, 471 U.S. 462, 475 (1985).4 Wien has failed to make this
showing. Tichenor v. Roman Catholic Church of New Orleans, 32 F.3d
953, 961 (5th Cir. 1994) (the burden of establishing personal
jurisdiction resides with [appellant]). Nowhere in the record does
Wien indicate how the banks' statements, taken as false for these
purposes, give rise to or are connected with its causes of action.5
A nexus must exist for Wien to succeed, but the record is
absolutely void of such a connection. Appellant's conclusory
allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.
Fernandez-Montes v. Allied Pilots Ass'n., 987 F.2d 278, 284 (5th
Cir. 1993).
Wien asserts, however, that it did present a prima facie
case for personal jurisdiction, but the district court found for
the appellees as a result of applying F.R.C.P. 12(b)(6) reasoning
instead of Rule 12(b)(2). We disagree. Appellant's contention
that the district court's use of the phrase, "give rise to any
cause of action," necessarily and exclusively indicates Rule
12(b)(6) reasoning is mistaken, when considered in the full context
of his order.
Further, although the district court's Opinion discusses
only the insufficient minimum contacts to establish personal
4
In its brief, appellant alleges only that specific jurisdiction exists,
therefore, this court need not address general jurisdiction.
5
The appellant implies that SSKH's agent also represented Norddeutsche
Landesbank Girozentrale but does not provide any evidence upon which to base such
a conclusion.
5
jurisdiction, we are equally convinced that this case fails the
"fair play and substantial justice" prong of the jurisdiction test.
In deciding whether the assertion of specific jurisdiction over a
non-resident defendant would comport with traditional notions of
fair play and substantial justice, the courts must consider whether
the forum has some special interest in granting relief, the nature
and quality of the contacts with the forum state, the interest of
the forum state in accommodating its residents, and the convenience
of the parties. Thompson v. Chrysler Motors Corp., 755 F.2d 1162,
1173 (5th Cir. 1985). Additionally, with respect to foreign
defendants, the unique burdens placed upon one who must defend
oneself in a foreign legal system should have significant weight in
assessing the reasonableness of stretching the long-arm of personal
jurisdiction over national borders. Asahi Metal Industry Co. v.
Superior Court, 480 U.S. 102, 114 (1987).
Wien's appeal clearly cannot survive this type of
scrutiny. The interest of Germany in adjudicating this dispute is
overwhelming. The underlying loan was made in Halle, Germany to
two German corporations by two German banks. Tjontveit gave a
German address when applying for these loans, and there was no
indication from any corresponding documents or attachments that
appellees expected to be dealing with appellant in Texas. All or
most of the related documentation that would become or is a part of
this suit is either in German or in Germany or, in most instances,
both. Appellees have identified a number of witnesses, all of whom
reside in Germany and several of whom do not speak English or are
6
ill and would be unable to come to Texas to testify. The
underlying circumstances which Wien alleges gave rise to its causes
of action all occurred in Germany, and Wien has not identified a
single witness who resides in Texas, not even Tjontveit. Second,
appellant has demonstrated no special interest on the part of Texas
in granting relief, nor has it shown that there is an interest on
Texas's part in providing a forum for its residents. On the
contrary, Wien is an Alaska corporation, and this lawsuit is
apparently an effort to avoid an outstanding DM 10,000,000 German
judgment against Tjontveit.
Therefore, the judgment of the district court is AFFIRMED.
7