                                                                                    ACCEPTED
                                                                                01-15-00846-CV
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                          12/7/2015 11:36:46 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK
                            01-15-00846-CV
                   CAUSE NO. 06-14-00123-CV

                                                     FILED IN
                                              1st COURT OF APPEALS
                 IN THE COURT OF APPEALS FOR      HOUSTON, TEXAS
         THE   FIRST DISTRICT OF TEXAS AT HOUSTON
                                              12/7/2015 11:36:46 PM
                                              CHRISTOPHER A. PRINE
                                                       Clerk
        PREDATOR DOWNHOLE, INC. and NANCY VERMEULEN,

                           Appellants

                              vs.

                   FLOTEK INDUSTRIES, INC.,

                            Appellee


      APPELLANTS’ INTERLOCUTORY APPEAL OF DENIAL OF
                   SPECIAL APPEARANCES


                                    ANDREW L. MINTZ, PLLC
                                    Andrew L. Mintz
                                    SBOT No. 24037120
                                    2603 Augusta, Suite 880
                                    Houston, Texas 77057
                                    PHONE: (713) 780-7100
                                    FAX: (713) 780-7111

                                    KIRTON MCCONKIE
                                    Ryan B. Frazier (Pro Hac Vice)
                                    50 E. South Temple, Suite 400
                                    Salt Lake City, Utah 84111
                                    PHONE: (801) 328-3600
                                    FAX: (801) 221-2087

                                    ATTORNEYS FOR APPELLANTS

APPELLANTS REQUEST ORAL ARGUMENT


                               i                             4851-2191-0817.v1
                    IDENTITY OF PARTIES AND COUNSEL

Appellants: Predator Downhole, Inc. and Nancy Vermeulen

Appellants’ Trial and Appellate Counsel

ANDREW L. MINTZ, PLLC
Andrew L. Mintz
SBOT No. 24037120
andrew@almintzlawfirm.com
2603 Augusta, Suite 880
Houston, Texas 77057
PHONE: (713) 780-7100
FAX: (713) 780-7111

KIRTON MCCONKIE
Ryan B. Frazier (Pro Hac Vice)
rfrazier@kmclaw.com
50 E. South Temple, Suite 400
Salt Lake City, Utah 84111
PHONE: (801) 328-3600
FAX: (801) 221-2087

Appellee:   Flotek Industries, Inc.

Appellee’s Trial Counsel

BUCK KEENAN LLP
James P. Keenan
Texas Bar No. 11167850
jkeenan@buckkeenan.com
Edward P. Keenan
Texas Bar No. 24075504
tkeenan@buckkeenan.com
700 Louisiana, Suite 5100
Houston, Texas 77002
(713) 225-4500
(713) 225-3719 – Telecopier




                                          ii              4851-2191-0817.v1
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL.......................................................ii

INDEX OF AUTHORITIES ...............................................................................iv

STATEMENT OF THE CASE ............................................................................v

STATEMENT OF JURISDICTION.....................................................................vi

ISSUES PRESENTED ........................................................................................vii

I. SUMMARY OF THE FACTS AND ARGUMENT ………………………….1

II. STATEMENT OF FACTS……………………………………………………3

        A. Predator………………………………………………………………...3

        B. Nancy Vermeulen……………………………………………………....5

III. ARGUMENT AND AUTHORITIES ………………………………………..5

        A. Federal Due Process Requires that Predator and Ms. Vermeulen Have
           Minimum Contacts with Texas and that the Exercise of Personal
           Jurisdiction Over Predator and Ms. Vermeulen Comport with Fair Play
           and Substantial Justice …………………………………………………5

        B. Predator Does not Have the Requisite Minimum Contacts with Texas to
           Give Rise to Personal Jurisdiction ……………………………………..6

                 1. Predator Does not have Sufficient Contacts with Texas That Give
                    Rise to Specific Jurisdiction……………………………………7

                           a)       Breach of Contract…………………………………10

                           b)       Conversion of Trade Secrets and Confidential
                                    Information, Trade Secret Misappropriation, and
                                    Tortious Interference with Appellee’s Current and
                                    Prospective Business Relationships………………..11



                                                      iii                                      4851-2191-0817.v1
                   c)    Civil Conspiracy …………………………………….12

                   d)    Conclusion …………………………………………..14

           2. Predator Does Not Have the Continuous and Systematic Contacts
              with Texas that Give Rise to General Jurisdiction………………15

     C. Ms. Vermeulen Does not Have the Requisite Minimum Contacts with
        Texas that Would Subject Her to Personal Jurisdiction in Texas….......19

           1. Ms. Vermeulen Does not Have Sufficient Contacts with Texas
              That Give Rise to Specific Jurisdiction…………………………20

           2. Ms. Vermeulen Does not Have the Continuous and Systematic
              Contacts with Texas That Give Rise to General Jurisdiction……21

           3. Texas Courts Cannot Exercise Jurisdiction Over Ms. Vermeulen
              for Actions Taken in a Representative Capacity ………………..22

IV.     Exercising Jurisdiction over Predator Would not Comport with Fair Play
        and Justice………………………………………………………………25

V.      Conclusion………………………………………………………………27

CERTIFICATE OF COMPLIANCE………………………………….............29

CERTIFICATE OF REVIEW ………………………………………………...29

CERTIFICATE OF FILING AND SERVICE ………………………………..29




                                       iv                            4851-2191-0817.v1
                     INDEX OF AUTHORITIES

Cases

Aluminum Chems. (Bolivia), Inc. v. Bechtel Corp.,
   28 S.W.3d 64 (Tex.App.—Texarakana 2000, no pet.)…………………23, 24

Am. Type Culture Collection,Inc. v. Coleman,
  83 S.W.3d 801 (Tex. 2002)…………………………………….....7, 9, 19, 20

Amoco Chem. Co. v. Tex. Tin Corp.,
  925 F.Supp. 1192, 1201 (S.D. Tex. 1996)…………………………………23

Asahi Metal Indus. Co. v. Superior Court,
   480 U.S. 102 (1987)………………………………………………………..25

BMC Software Belgium N.V. v. Marchand,
  83 S.W.3d 789 (Tex. 2002)…………………………………………….6, 8, 9

Brown v. Gen. Brick Sales Co., Inc.
   39 S.W.3d 291 (Tex.App—Fort Worth 2001, no pet.)………………...22, 23

Burger King Corp. v. Rudzewicz,
  471 U.S. 462 (1985)……………………………………………………25, 26

Capital Fin. & Commerce AG v. Sinopec Overseas Oil & Gas, Ltd.,
  260 S.W.3d 67 (Tex.App—Houston [1st Dist.], 2008, no pet)…………..6, 12

Cappuccitti v. Gulf Indus. Prods., Inc.,
  222 S.W.3d 468 (Tex.App.—Houston [1st Dist.] 2007, no pet.)…………...23

Castleberry v. Branscum,
  721 S.W. 270 (Tex. 1986)……………………………………………...23, 24

CSR Ltd. v. Link,
  925 S.W.2d 591 Tex. 1996)………………………………………………..10

Frank A. Smith Sales, Inc. v. Atlantic Aero, Inc.,
   31 S.W.3d 742 (Tex.App.—Corpus Christi 2000, no pet.)………………...21



                                 v                          4851-2191-0817.v1
Grain Dealers Mut. Ins. Co. v. McKee,
  943 S.W.2d 455 (Tex. 1997)……………………………………………….23

Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C.,
  815 S.W.2d 223 (Tex. 1991)……………………….6, 7, 8, 16, 22, 25, 26, 27

Helicopteros Nacionales de Colombia, S.A. v. Hall,
  466 U.S. 408, n. 9 (1984)………………………………………………16, 17

Kelly v. Gen. Interior Constr., Inc.,
   301 S.W.3d 653 (Tex. 2010)………………………………...5, 7, 8, 9, 15, 20

Lonza AG v. Blum,
   70 S.W.3d 184 (Tex.App—San Antonio 2001, pet. denied)…………..26, 27

MasterGuard L.P. v. Eco Techs. Intern. LLC,
  441 S.W.3d 367 (Tex.App—Dallas, 2013, no pet.)………………………..13

McKanna v. Edgar,
  388 S.W.2d 927, 930 (Tex. 1965)…………………………………………...9

Michiana Easy Livin’ Country, Inc. v. Holten,
  168 S.W.3d 777 (Tex. 2005)…………………………………………...13, 14

Moki Mac River Expeditions v. Drugg,
  221 S.W.3d 569 (Tex.2007) ……………………………………………...6, 9

Nat’l Indus. Sand Ass’n v. Gibson,
   897 S.W.2d 769 (Tex. 1995)……………………………………...6, 7, 19, 20

Perkins v. Benguet Consolidated Mining Co.,
  342 U.S. 437 (1952)………………………………………………………..17

Perna v. Hogan,
  162 S.W.3d 648 (Tex.App—Houston [14th Dist.], 2005, no pet.)……........10

PHC-Minden, L.P. v. Kimberly-Clark Corp.,
  235 S.W.3d 163 (Tex. 2007)…………………………………………...15, 16




                                  vi                           4851-2191-0817.v1
Retamco Operating, Inc. v. Republic Drilling Co.,
   278 S.W.3d 333 (Tex. 2009)………………………………………………...9

Rosenberg Bros. & Co. v. Curtis Brown Co.,
   260 U.S. 516 (1923)………………………………………………………..16

Schlobohm v. Schapiro,
   784 S.W.2d 355 (Tex. 1990) ………………………………………………..6

Shearson Lehman Bros., Inc. v. Hughes, Hubbard & Reed,
   902 S.W.2d 60 (Tex.App—Houston [1st Dist.], 1995, no writ)………..10, 11

Siskand v. Villa Found. for Educ., Inc.,
   642 S.W.2d 434 (Tex. 1982)……………………………………………….21

Vosko v. Chase Manhatten Bank, N.A.,
 909 S.W.2d 95 (Tex.App—Houston [14th Dist.], 1995, pet. denied)...12, 13, 22

Washington DC Party Shuttle, LLC v. IGuide Tours,
  406 S.W.3d 723 (Tex. Ct. App.—Houston [14th Dist.] 2013, pet. denied)...23

Weldon-Francke v. Fisher,
  237 S.W.3d 789 (Tex.App—Houston [14th Dist] 2007, no pet.)…………..14

Statutes and Rules

Tex. Civ. Prac. Rem.Code § 51.014(7)……………………………………..….ix

T.R.A.P. 9.4(i)(3)……………………………………………………………...29

T.R.A.P. 52.3(j) ……………………………………………………………….29




                                    vii                           4851-2191-0817.v1
                       STATEMENT OF THE CASE

Nature of the Case:   On September 2, 2015, the Harris County District Court
                      entered an Order Denying Predator Downhole, Inc. and
                      Nancy Vermeulen’s Special Appearances.

Trial Court:          The Honorable Randy Wilson, Judge of the 157th District
                      Court, Harris County, Texas.

Relief sought by      The 157th District Court of Harris County issued a ruling
Appellants:           denying the Special Appearances of Predator Downhole,
                      Inc. and Nancy Vermeulen (“Appellants”) despite the
                      fact that Appellants are not Texas residents and both lack
                      sufficient minimum contacts with Texas for the trial
                      court to have personal jurisdiction over Appellants.
                      Moreover, requiring the Appellants to appear in Texas
                      for the lawsuit in the district court would not be
                      consistent with federal due process and notions of justice
                      and fair play.




                                    viii                             4851-2191-0817.v1
                       STATEMENT OF JURISDICTION

      This Court has jurisdiction pursuant to hear this interlocutory appeal
pursuant to Section 51.014(7) of the Texas Civil Practice and Remedies Code.




                                       ix                             4851-2191-0817.v1
                            ISSUES PRESENTED

1) Does Predator Downhole, Inc. (“Predator”) Have the Requisite Minimum
   Contacts with Texas to Give Rise to Personal Jurisdiction?

2) Does Predator Have Sufficient Contacts with Texas to Give Rise to Specific
   Jurisdiction for any of Flotek’s claims?

3) Does Predator Have the Continuous and Systematic Contacts with Texas
   that are Necessary to Give Rise to General Jurisdiction?

4) Does Nancy Vermeulen (“Ms. Vermeulen”) Have the Requisite Minimum
   Contacts with Texas that Would Subject Her to Personal Jurisdiction in
   Texas?

5) Does Ms. Vermeulen Have Sufficient Contacts with Texas That Give Rise to
   Specific Jurisdiction?

6) Does Ms. Vermeulen Have the Continuous and Systematic Contacts with
   Texas that are Necessary to Give Rise to General Jurisdiction?

7) Can Texas Courts Exercise Jurisdiction Over Ms. Vermeulen for Actions
   Taken in a Representative Capacity?

8) Does Predator Have Sufficient Minimum Contacts with Texas so that
   the Exercise of Personal Jurisdiction Over it Fulfills the Federal Due Process
   Requirement of Fair Play and Substantial Justice?

9) Does Ms. Vermeulen Have Sufficient Minimum Contacts with Texas so
   that the Exercise of Personal Jurisdiction Over it Fulfills the Federal Due
   Process Requirement of Fair Play and Substantial Justice?




                                      x                               4851-2191-0817.v1
   I. SUMMARY OF THE FACTS AND ARGUMENT

      Appellee Flotek Industries, Inc.’s (“Flotek” or “Appellee”) claims against

Appellants Predator Downhole, Inc. (“Predator”) and Nancy Vermeulen (“Ms.

Vermeulen”) (collectively “Appellants”) must be dismissed for lack of personal

jurisdiction. The thrust of Flotek’s live pleading, the Fourth Amended Petition and

Application for Permanent Injunction (the “Live Petition”), is to drag Ms.

Vermeulen and Predator – two Wyoming citizens with almost no contact with

Texas – into a Texas court contrary to the deep-seated principles of constitutional

due process. Neither Predator nor Ms. Vermeulen has the minimum contacts

required by due process for Texas to be subjected to personal jurisdiction.

Accordingly, Predator and Ms. Vermeulen should not be forced to defend

themselves in a venue several states away.

      Appellants Predator and Ms. Vermeulen each filed separate Special

Appearances challenging the exercise of personal jurisdiction over them. Without

any analysis or explanation, the District Court summarily denied both Special

Appearances. The District Court’s ruling simply explained: “After considering

the pleadings, the response and any other evidence, the Court hereby orders that

these special appearances are DENIED in their entirety.” CR 287. Based on the

evidence before the District Court, this was error.




                                          1                              4851-2191-0817.v1
      Simply, Flotek failed to meet its burden to establish that under the

circumstances of this case, personal jurisdiction exists over these defendants.

Flotek’s contention in opposition to the Special Appearances was based on the

erroneous conclusions that (1) Predator and Ms. Vermeulen conspired with another

defendant, Chris Vermeulen (Ms. Vermeulen’s husband) and (2) Predator was

created for the purpose of facilitating a breach of Chris Vermeulen’s Bonus

Agreement with Flotek. However, these arguments do not withstand scrutiny.

Under established Texas case law, mere allegations of a conspiracy or tortious

interference with contract will not confer personal jurisdiction. Flotek’s only

jurisdictional allegations in the Live Pleading – that Texas has jurisdiction because

the alleged conspiracy makes Ms. Vermeulen and Predator subject to the forum-

selection clause in the Bonus Agreement – fail as a matter of law.

      Only proof of actual conduct in furtherance of a conspiracy within Texas

will subject Ms. Vermeulen and Predator to jurisdiction in Texas. Neither Ms.

Vermeulen nor Predator committed a tortious or conspiratorial act in Texas. Flotek

provided no evidence to the contrary. Instead, Flotek claims that invoices with

Integrity – a Texas company – and a handful of emails provide such evidence of

the putative conspiracy or tortious interference. However, Flotek misreads and

misconstrues the content and relevance of these emails and invoices. They do not

show a conspiracy or that Chris Vermeulen had any business involvement in



                                          2                               4851-2191-0817.v1
Predator. Flotek’s theories are mere conjecture that is directly contradicted by the

only evidence about these emails and invoices – unrefuted deposition testimony by

those actually involved.

         Accordingly, the Court’s ruling denying the Special Appearances should be

reversed, and the defendants respectfully request that the court dismiss Ms.

Vermeulen and Predator from this action for lack of personal jurisdiction.

   II.      STATEMENT OF FACTS

            A. Predator

         Flotek’s claims against Predator must be dismissed for want of personal

jurisdiction because the undisputed facts demonstrate that Texas does not have

either specific or general jurisdiction over Appellant. Predator is a small company

that rents, sells, and services downhole drilling motors and related products and

parts. CR 138. It has only six (6) employees, which are all located in and work at

Predator’s facility in Casper, Wyoming. Id. It provides its services and products to

oil drilling companies located in Wyoming, North Dakota, and Colorado. Id. at

139. One of its primary services is to repair oil drilling motors. All of these repairs

occur in Predator’s Casper, Wyoming shop.

         Predator does not have the contacts or a relationship with Texas that would

subject it to jurisdiction in Texas. First, Predator has no presence or operations in

Texas. It is a corporation organized and operating under the laws of the State of



                                           3                                4851-2191-0817.v1
Wyoming with its principal place of business located in Casper, Wyoming. CR

138. In addition, Predator: a) never has had an office or mailing address in Texas;

b) is not licensed to do business in the Texas; c) never conducted any operations in

Texas; d) has no employees in Texas; e) does not send representatives to Texas on

Predator’s behalf; f) does not store product inventory in Texas; g) owns no

property (real or personal) in Texas; h) has no phone listing in Texas; i) provides

virtually all of its sales, rentals and services of motors to customers only in

Wyoming, Colorado, or North Dakota; j) does not ship motors to Texas;

k) directed its communications only to its customers’ agents/representatives

located in Wyoming, Colorado and/or North Dakota; l) does not solicit business in

Texas; m) does not derive any revenues from motors shipped to a Texas address or

serviced any motors or other equipment in Texas; n) has no bank accounts in

Texas; o) has never had any employees and/or representatives who resided in, who

were assigned to, or who worked in Texas; q) has not sent any of its

employees/representatives to Texas for any reason; r) it does not have a registered

agent in Texas; and s) it does not store any business records in Texas. CR 138-141.

      Further, Flotek’s Complaint fails to allege facts or claims that would subject

Predator to jurisdiction in Texas. Predator is not a party to the Bonus Agreement

that is the subject of the underlying dispute in this matter. CR 13-19. In addition, it

has not consented to Texas courts exercising jurisdiction over it. In short, these



                                           4                                4851-2191-0817.v1
facts demonstrate that, under both Texas and Federal law, Texas does not have

personal jurisdiction over Predator.

          B. Nancy Vermeulen

       Flotek’s claims against Ms. Vermeuelen must be dismissed for want of

personal jurisdiction because the facts demonstrate that Texas does not have either

specific or general jurisdiction over Ms. Vermeulen. She does not reside in Texas,

owns no property in Texas, does not engage in any personal or business activity on

her own behalf, and (with the exception of a trip she recently made for a mediation

after her Special Appearance was denied) has traveled to Texas only a handful of

times years ago for training offered by and on behalf and for the benefit of her

former employer. CR 104-105. The last time she came to Texas for training

purpose on behalf of her former employer was approximately three years ago. Id.

at 105.

III.   ARGUMENT AND AUTHORITIES

       A. Federal Due Process Requires that Predator and Ms. Vermeulen Have
          Minimum Contacts with Texas and that the Exercise of Personal
          Jurisdiction Over Predator and Ms. Vermeulen Comport with Fair Play
          and Substantial Justice.

   Whether a court can exercise personal jurisdiction over Predator is a question of

   law, and thus the trial court's determination of Predator’s special appearance is

   reviewed de novo. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 657




                                          5                               4851-2191-0817.v1
   (Tex. 2010) (citing Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574

   (Tex.2007); BMC Software Belgium N.V. v. Marchand, 83 S.W.3d 789, 794)

      A Texas court may only exercise personal jurisdiction over a defendant if it

would be consistent with federal constitutional requirements of due process.

Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d

223, 226 (Tex. 1991). Personal jurisdiction is consistent with due process if 1) the

defendant has purposely established “minimum contacts” with Texas; and 2) the

exercise of personal jurisdiction comports with “fair play and substantial justice.”

Nat’l Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 772 (Tex. 1995); Guardian

Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226

(Tex. 1991).

      In this case, Flotek has not met its burden of establishing that Vermeulen or

Predator has contacts with Texas sufficient to invoke the jurisdiction of the Texas

courts. See Capital Fin. & Commerce AG v. Sinopec Overseas Oil & Gas, Ltd.,

260 S.W.3d 67, 78-79 (Tex.App. – Houston [1st Dist], 2008, no. pet.) (recognizing

that in “suit against a nonresident defendant, the initial burden is on the plaintiff …

to plead sufficient allegations” to satisfy the jurisdictional requirements).

      B. Predator Does not Have the Requisite Minimum Contacts with Texas to
         Give Rise to Personal Jurisdiction

      The essential goal of the minimum contacts test is to protect the defendant.

Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990). Thus, the defendant’s


                                           6                                4851-2191-0817.v1
minimum contacts must constitute a “substantial connection” between the

defendant and Texas. Guardian Royal Exch. Assurance, Ltd. v. English China

Clays, P.L.C., 815 S.W.2d 223, 231 (Tex. 1991). A defendant is not subject to

jurisdiction if his Texas contacts are random, fortuitous or attenuated. Am. Type

Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). To be

subject to personal jurisdiction the defendant must have sufficient minimum

contacts with Texas such that he could reasonably anticipate that his activities

would subject him to the jurisdiction of a Texas court. Nat’l Indus. Sand Ass’n v.

Gibson, 897 S.W.2d 769, 772 (Tex. 1995).

      For personal jurisdiction purposes, the minimum contacts requirement can

be satisfied by showing that either specific or general jurisdiction exists. Guardian

Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 227-

228 (Tex. 1991). Specific jurisdiction arises only when: 1) the defendant

“purposefully avails” himself of conducting activities in Texas; and 2) the cause of

action “arises from or is related to those contacts or activities.” Kelly v. Gen.

Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010) (emphasis added). General

jurisdiction arises if the defendant’s contacts with Texas are so “continuous and

systematic” that the defendant can fairly be said to be present in Texas. Guardian

Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 228




                                           7                               4851-2191-0817.v1
(Tex. 1991). As the evidence demonstrates conclusively, neither Predator nor Ms.

Vermeulen is subject to either specific or general jurisdiction in Texas.

             1. Predator Does not Have Sufficient Contacts with Texas That Give
                Rise to Specific Jurisdiction.

      Predator has virtually no contacts with Texas. CR 138-141. It does not

solicit any business in Texas, does not maintain any operations in Texas, derives

no revenue from services provided in Texas, and does not maintain a presence in

Texas. Id. At most, Appellant’s contact with Texas is random, and it has not

purposefully availed itself of conducting activities in Texas or of Texas’ laws.

Consequently, there are no minimum contacts that would support a finding of

personal jurisdiction over Predator.

         Even if Predator had “purposefully availed” itself of conducting activities

in Texas (and it has not), Appellee must also demonstrate a connection between

Predator’s alleged wrongdoing and Texas. Kelly v. Gen. Interior Constr., Inc., 301

S.W.3d 653, 655 (Tex. 2010). For a court in Texas to have specific jurisdiction,

Predator must have: 1) purposefully availed itself of conducting activities in Texas

and 2) the cause of action against Defendants must arise from or be related to their

contacts with or activities in Texas. Kelly v. Gen. Interior Constr., Inc., 301

S.W.3d 653, 658 (Tex. 2010) (emphasis added). Moreover, Texas law has

established that the plaintiff bears the initial burden to plead sufficient allegations

to bring a nonresident defendant within the reach of Texas's long-arm statute. Id.


                                          8                                 4851-2191-0817.v1
(citing See Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337

(Tex.2009); Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.

2007); Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807

(Tex.2002); BMC Software Belgium N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex.

2002); McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex.1965)).

         If the plaintiff fails to plead facts bringing a defendant within reach of the

long-arm statute (i.e., for a tort claim, that the defendant committed tortious acts in

Texas), the defendant need only prove that it does not live in Texas to negate

jurisdiction. Id. at 658-59. Assuming arguendo that Appellee’s allegations against

Predator in its Live Petition are true (and they are not), Appellee has not pled that

Appellee’s causes of action against Predator occurred in Texas. Furthermore, it is

undisputed that Predator is not located in Texas. CR 138-141. Because Flotek’s

pleadings lack Texas-specific allegations1, Predator has negated all jurisdictional

bases by proving it is not located in Texas, and Flotek has not presented any

evidence to the contrary. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 661

(Tex. 2010) Consequently, Texas lacks personal jurisdiction over Predator. Id.

         Even if Predator had committed a tort that impacted a Texas company, i.e.,

Flotek, (and it did not), this fact alone does not give rise to personal jurisdiction


1
  Flotek baldly asserts that Texas has jurisdiction because Predator’s contacts with Texas “are directly related to the
causes of action alleged against them in this petition”. CR 293.However, Flotek does not plead any specific facts
that, if proven, would show that Predator’s Texas contacts “are directly related to the causes of action alleged
against them in this petition”.



                                                          9                                           4851-2191-0817.v1
over a non-resident. Perna v. Hogan, 162 S.W.3d 648, 659 (Tex.App—Houston

[14th Dist.], 2005, no pet.) For the trial court to have personal jurisdiction over

Predator, there must be a substantial connection between its contacts with Texas

and the Appellee’s cause of action. Id. Predator’s actions must have been

“purposefully directed” to Texas and Flotek’s litigation against Predator must

result from the alleged injuries that “arise out of or relate to” those actions that

were “purposefully directed” to Texas. Shearson Lehman Bros., Inc. v. Hughes,

Hubbard & Reed, 902 S.W.2d 60, 64-65 (Tex.App—Houston [1st Dist.], 1995, no

writ). “Specific jurisdiction is established if the defendant’s alleged liability arises

from or is related to an activity conducted within the forum.” CSR Ltd. v. Link, 925

S.W.2d 591, 595 (Tex. 1996).

      In the instant case, Flotek has established no connection (let alone a

“substantial connection”) between Predator’s activities in Texas and its alleged

liability for the claims brought by Flotek. Thus, Texas cannot properly exercise

specific jurisdiction over Predator.

             a)     Breach of Contract

      It is undisputed that Predator did not sign the Bonus Agreement. It is

axiomatic that a party cannot breach a contract to which it is not a party.

Consequently, Flotek cannot maintain a claim against Predator for Chris

Vermeulen’s alleged breach of the Bonus Agreement. More importantly, none of



                                           10                                4851-2191-0817.v1
the provisions of this Bonus Agreement are applicable to Predator. As such, the

forum-selection provision that provides that Texas will be the location for any

legal action brought to enforce the Bonus Agreement cannot be binding on

Predator. CR 18.

             b)     Conversion of Trade Secrets and Confidential Information,

                    Trade Secret Misappropriation, and Tortious Interference with

                    Appellee’s Current and Prospective Business Relationships.

      In its response to Predator’s Special Appearance, Flotek focused on

Predator’s relationship with Integrity, asserting that this relationship was sufficient

to confer specific jurisdiction. CR 226-227. It is undisputed that Predator has a

relationship with Integrity, but that fact alone does not provide a basis for specific

jurisdiction. Specific jurisdiction can be predicated on this relationship only if:

1) Appellee’s claims against Predator arose from Predator’s business with Integrity

and 2) if Predator directed its business with Integrity to Texas. See Shearson

Lehman Bros., Inc. v. Hughes, Hubbard & Reed, 902 S.W.2d 60, 64-65

(Tex.App—Houston [1st Dist.], 1995, no writ). Appellee cannot make either

showing.

      Flotek has provided no competent evidence that Predator’s relationship with

Integrity gave rise to Appellee’s claims against Predator for Conversion of Trade

Secrets and Confidential Information, Trade Secret Misappropriation, and Tortious



                                          11                               4851-2191-0817.v1
Interference with Appellee’s Current and Prospective Business Relationships. The

only “evidence” that Appellee cites for each of these claims is its speculative

assertion that “Predator utilizes Flotek’s proprietary and confidential information,

including Confidential Information as described in the Bonus Agreement to

directly compete with Flotek.” CR 296. Even if this allegation were true (and it is

not), it is nevertheless insufficient to establish specific jurisdiction over Predator

because its alleged conversion of trade secrets and confidential information, trade

secret misappropriation, and tortious interference with Flotek’s current and

prospective business relationships that Predator allegedly used to secure Integrity’s

business would have occurred in Wyoming, not Texas. C.R. 138-141.

             c)    Civil Conspiracy

      Flotek has not shown that conspiracy allegations constitute a basis for

jurisdiction over either Ms. Vermeulen or Predator. “A civil conspiracy is a

combination by two or more persons to accomplish either an unlawful purpose or a

lawful purpose by unlawful means.” Vosko v. Chase Manhattan Bank, N.A., 909

S.W.2d 95, 100 (Tex. App—Houston [14th Dist], 1995, pet. denied).

      However, black-letter Texas law is clear that allegations of a nonresident

being involved in a conspiracy does not confer personal jurisdiction on a Texas

court. See Capital Fin. & Commerce AG v. Sinopec Overseas Oil & Gas, Ltd., 260

S.W.3d 67, 78-79 (Tex. App—Houston [1st Dist] 2008, no pet.) (“[B]are



                                         12                               4851-2191-0817.v1
allegations of . . . conspiracy, without more, [is] neither material nor relevant in

assessing contacts to determine personal jurisdiction over a nonresident

defendant.”); MasterGuard L.P. v. Eco Techs. Intern. LLC, 441 S.W.3d 367, 376

(Tex. App—Dallas 2013, no pet.) (“A conspiracy claim alone is not enough to

establish personal jurisdiction.”). The Texas Supreme Court has declined “to

recognize the assertion of personal jurisdiction over a nonresident defendant based

solely upon the effects or consequences of an alleged conspiracy with a resident in

the forum state.” Instead, a Texas court can exercise jurisdiction only where the

“nonresident defendant has purposefully established sufficient minimum contacts

to satisfy due process.” Vosko v. Chase Manhattan Bank, N.A., 909 S.W.2d 95,

100 (Tex. App. —Houston [14th Dist] 1995, pet. denied); see also Michiana Easy

Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 789 (Tex. 2005) (“Instead, it is

‘the defendant’s conduct and connection with the forum’ that are critical.”).

      Taken alone, Flotek’s allegations that Ms. Vermeulen, Predator, and Chris

Vermeulen acted in concert to set up Predator to compete in violation of the non-

compete provision in the Bonus Agreement are insufficient to subject Predator or

Ms. Vermeulen to personal jurisdiction in Texas.

      Appellee has provided no evidence that Predator’s relationship with Integrity

gave rise to the conspiracy claim against Predator. The only “evidence” that

Appellee cites to support this claim is its speculative assertion that Predator was



                                         13                              4851-2191-0817.v1
established to “to circumvent the Bonus Agreement, to misappropriate Flotek’s

trade secrets, and to tortiously interfere with Flotek’s current and prospective

customers.” C.R. 298-299. Even if this allegation were true (and it is not), it is still

insufficient to establish specific jurisdiction over Predator because the alleged

conspiracy would have been created and carried out in Wyoming, not Texas. C.R.

138-141. Flotek has not alleged that Vermeulen or Predator committed a

substantial act in furtherance of the conspiracy in Texas, and the trial court did not

make a finding of fact that there was a conspiracy or that any specific act was

taken in Texas in furtherance of the conspiracy alleged by Flotek.

      In addition, Appellee cannot use any potential tort liability for the alleged

civil conspiracy as grounds for personal jurisdiction. Under Texas law, ultimate

liability in tort is not a jurisdictional fact, and the merits of Flotek’s claims are not

at issue in determining whether the Court has personal jurisdiction over Predator.

Weldon-Francke v. Fisher, 237 S.W.3d 789, 792 (Tex. App—Houston [14th Dist]

2007, no pet.). In fact, the Texas Supreme Court has expressly rejected jurisdiction

based solely upon the effects or consequences of an alleged conspiracy in the

forum state. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 789

(Tex. 2005). “Instead, it is ‘the defendant’s conduct and connection with the

forum’ that are critical.” Id. In the instant case, Predator’s conduct and connection




                                            14                                4851-2191-0817.v1
with Texas fall well short of what is required for Texas to exercise jurisdiction

over Predator on the basis of the alleged civil conspiracy.

             d)     Conclusion

      Appellee has not, and cannot, allege that Predator has any specific contacts

with the State of Texas. As stated previously, for specific jurisdiction to exist,

Appellee must demonstrate that Predator 1) purposefully availed itself of

conducting activities in Texas and 2) the cause of action against Defendant must

arise from or be related to their contacts with or activities in Texas. Kelly v. Gen.

Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010) Not only has Appellee

failed to show that Predator purposefully conducted activities in Texas, it has not

demonstrated that its causes of action against Predator (breach of contract,

conversion of trade secrets and confidential information, trade secret

misappropriation, tortious interference with current and prospective business

relationships, and civil conspiracy) arise out of any contacts Predator has with

Texas. CR 292-308. In short, the evidence shows conclusively that Appellee has

failed to establish specific jurisdiction.

             2. Predator Does Not Have the Continuous and Systematic Contacts
                with Texas That Give Rise to General Jurisdiction.

      General jurisdiction has been defined as “personal jurisdiction over a

defendant in a suit not arising out of or related to the defendant's contacts with the

forum.” PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 166 (Tex.


                                             15                             4851-2191-0817.v1
2007) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, n.

9 (1984)). Because Predator has very few contacts with Texas, it clearly does not

have “continuous and systematic” contacts with Texas that would subject it to

general jurisdiction. Guardian Royal Exch. Assurance, Ltd. v. English China

Clays, P.L.C., 815 S.W.2d 223, 228 (Tex. 1991). To assert general jurisdiction

over a defendant, usually the defendant must be engaged in longstanding business

in Texas, such as regularly marketing or shipping products to Texas or maintaining

one or more offices in Texas. PHC-Minden, L.P. v. Kimberly-Clark Corp., 235

S.W.3d 163, 168 (Tex. 2007). Less extensive activities will not qualify for general

jurisdiction. Id.

      In Helicopteros, the Supreme Court concluded that a CEO’s trip to Texas

could not be described as a “continuous or systematic” contact.” Id. (citing Id. at

416). Similarly, the Court held that the nonresident defendant’s acceptance of

checks drawn on a Houston bank was of “negligible significance.” Id. “The Court

held, relying on a 1923 unanimous opinion written by Justice Brandeis, that

‘purchases and related trips, standing alone, are not a sufficient basis for a State's

assertion of jurisdiction’.” Id. (citing Id. at 417, 104 S.Ct. 1868 (citing Rosenberg

Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372

(1923))).




                                           16                               4851-2191-0817.v1
      As of 2007, there was only one case (Perkins v. Benguet Consolidated

Mining Co.) in which Supreme Court upheld a finding of general jurisdiction. In

that case, the following was true of the nonresident individual: 1) he maintained an

office in the forum state in which he did “many things for the company;” 2) he

maintained the company files in the forum state; 3) carried on correspondence

from the forum state; 4) drew and distributed salary checks from his office in the

forum state; 5) used two bank accounts in the forum state for company funds and

6) had a bank in the forum state act as transfer agent for the company's stock; 7)

held directors' meetings in the forum state; 8) supervised policies dealing with the

rehabilitation of the corporation's properties in the Philippines in the forum state;

and 9) and dispatched funds from bank accounts in the forum state to cover

purchases of machinery for such rehabilitation. Perkins v. Benguet Consolidated

Mining Co., 342 U.S. 437, 447-448, 72 S.Ct. 413, 96 L.Ed. 485 (1952).

      In the instant case, Predator’s does not even have as many contacts as the

nonresident defendant in the Helicopteros case, let alone the defendant in the

Benguet Consolidated Mining Co. case. In this case, Predator: 1) is a corporation

organized and operating under the laws of the State of Wyoming; 2) has its

principal place of business located at 1990 Talc Road, Casper, Wyoming, 82604;

3) has an office only in Wyoming and maintains a mailing address in Vernal, Utah.

4) it does not have and never has had an office in Texas; 5) does not currently



                                          17                               4851-2191-0817.v1
have, and never has had, a mailing address in Texas; 6) has not been licensed to

conduct business in Texas; 7) does not maintain, and it has not maintained, any

operations in Texas; 8) at no time has had any employees or representatives who

resided in, were assigned to, or worked in Texas; 9) has not had any of its

employees or representatives travel to Texas on Predator’s behalf or on company

business; 10) does not have and has not had a registered agent in Texas; 11) does

not have and has not had any inventory stored in Texas; 12) does not have and has

not had any phone listings in Texas; 13) does not currently own and has not owned

any property, real or personal, in Texas; 14) sales, rentals, and services of motors

have been provided to customers only in Wyoming, Colorado, or North Dakota;

15) has not solicited business in Texas; 16) does not currently receive and has not

received revenues for motors shipped to a Texas address or serviced any motors or

other equipment in Texas; 17) business records, corporate records, and other

records are not and have not been stored in Texas; 18) business records, corporate

records, and records relating to the marketing and development of its products are

located in Casper, Wyoming; 19) does not have and has not had any bank accounts

in Texas; 20) was not personally served with process within Texas; 21) received a

document from the Texas Secretary of State stating that the Texas Secretary of

State had been served in this lawsuit on behalf of Predator; and 22) has not agreed

to subject itself to the jurisdiction of the courts of the State of Texas. C.R. 268-271



                                          18                               4851-2191-0817.v1
           These facts make it clear that Predator does not have “continuous or

systematic” contacts with Texas. In addition, Predator has not had sufficient

minimum contacts with Texas such that it could reasonably anticipate being

subject to the jurisdiction of a Texas court. Nat’l Indus. Sand Ass’n v. Gibson, 897

S.W.2d 769, 772 (Tex. 1995). This case is significant because: a) the facts in that

case are similar to the facts in the instant case2 and b) the Court ruled that there

was insufficient evidence to establish general jurisdiction. Id. at 774. Similarly,

there is insufficient evidence to establish general jurisdiction in the instant case.

Consequently, Predator is not subject to either specific or general personal

jurisdiction.

           C. Ms. Vermeulen Does not Have the Requisite Minimum Contacts with
              Texas that Would Subject Her to Personal Jurisdiction in Texas.

           As stated previously, a nonresident defendant is not subject to jurisdiction if

her Texas contacts are random, fortuitous, or attenuated. Am. Type Culture

Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). To be subject to

2
    The nonresident defendant presented undisputed evidence that it:
          1. Is not and never has been a resident of Texas;
          2. Is not required to maintain and has never maintained a registered agent for service in Texas;
          3. Does not maintain, and has never maintained a place of business in Texas;
          4. Does not have, and has never had any employees or agents in Texas;
          5. Has never maintained an office, mailing address, or telephone number in Texas;
          6. Has never owned any assets in Texas;
          7. Has never paid any taxes in Texas;
          8. Has never maintained a bank account in Texas;
          9. Has never owned, leased, rented, or controlled any real or personal property in Texas;
          10. Has never purchased any tangible items or other personal property in Texas or from a Texas business,
          citizen, or resident;
          11. Has never entered into a contract with any Texas business, citizen, or resident; and
          12. Has never held a Board of Directors, officers, or other official meeting in Texas. (Nat’l Indus. Sand
          Ass’n v. Gibson, 897 S.W.2d 769, 772 (Tex. 1995)).



                                                          19                                         4851-2191-0817.v1
personal jurisdiction the defendant must have sufficient minimum contacts with

Texas such that she could reasonably anticipate that her activities would subject

her to the jurisdiction of a Texas court. Nat’l Indus. Sand Ass’n v. Gibson, 897

S.W.2d 769, 772 (Tex. 1995). In the instant case, Ms. Vermeulen’s contacts fall far

short of what is required for the district court to exercise personal jurisdiction.

             1. Ms. Vermeulen Does not Have Sufficient Contacts with Texas
                That Give Rise to Specific Jurisdiction.

      Ms. Vermeulen, like Predator, is not subject to specific jurisdiction in this

case. She has not engaged in any actions or activities in Texas that give rise to the

claims asserted against her. See Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d

653, 658 (Tex. 2010) (holding that specific jurisdiction over the claim against

Defendants must arise from or be related to their contacts with or activities in

Texas).

      Ms. Vermeulen is not a party to the Bonus Agreement, the contract that is at

issue in the underlying litigation, and she has only been in Texas a handful of

times. CR 105. Furthermore, these prior visits to Texas were for training purposes

on behalf of a former employer and had nothing to do with any of the claims or

allegations that have been brought by Flotek. Id. Consequently, these prior visits fit

squarely within the framework of random, fortuitous or attenuated visits that do not

subject her to Texas jurisdiction. Am. Type Culture Collection, Inc. v. Coleman, 83

S.W.3d 801, 806 (Tex. 2002).


                                           20                               4851-2191-0817.v1
      Further, she has not taken any actions in furtherance of the alleged tortious

interference or the putative conspiracy in Texas. Ms. Vermeulen has never traveled

to Texas on behalf of her current employer, Predator. In fact, she has not set foot in

Texas for nearly three (3) years, and she has never agreed to subject herself to the

jurisdiction of this Court or any other court located in Texas. CR 104-105

Accordingly, Ms. Vermeulen has not purposefully availed herself of Texas or

Texas laws. As such, there are no minimum contacts that would support a finding

of specific personal jurisdiction over her.

      In fact, the Live Pleading fails to adequately plead any actions that Ms.

Vermeulen has taken in Texas giving rise to any of the claims at issue. To meet its

burden of pleading a sufficient basis for personal jurisdiction, Flotek must allege

that Ms. Vermeulen committed a specific act in Texas. See Siskind v. Villa Found.

for Educ., Inc., 642 S.W.2d 434, 437 (Tex. 1982) (finding no personal jurisdiction

over nonresident defendants because there were no allegations of specific acts in

Texas). Thus, Flotek‘s petition falls well short of pleading sufficient allegations to

show jurisdiction in Texas. Frank A. Smith Sales, Inc. v. Atlantic Aero, Inc., 31

S.W.3d 742, 747 (Tex. App. – Corpus Christi 2000, no pet.).

             2. Ms. Vermeulen Does Not Have the Continuous and Systematic
                Contacts with Texas That Give Rise to General Jurisdiction.

      Ms. Vermeulen, a Wyoming citizen, has virtually no contacts with Texas,

much less “continuous and systematic” contacts that would give rise to jurisdiction


                                          21                               4851-2191-0817.v1
over her. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C.,

815 S.W.2d 223, 228 (Tex. 1991). She does not own or rent real property in

Texas. She does not own or operate any business in Texas. She does not engage

in any personal or business activities in Texas. She does not have a mailing

address in Texas or phone listings in Texas. She owns no assets in Texas. All

told, she does not have the type and nature of contacts that would give rise to

general personal jurisdiction over her in Texas. CR 104-106.

             3. Texas Courts Cannot Exercise Jurisdiction Over Ms. Vermeulen
                for Actions Taken in a Representative Capacity.

      Flotek argued to the trial court that Ms. Vermeulen had “continuous and

systematic contacts with Texas companies that helped Predator improperly

compete with Flotek.” CR 229. As shown above, the Texas courts do not have

personal jurisdiction over Predator. Even if they did, Ms. Vermeulen’s limited

contacts with Texas taken in a representative capacity do not subject her personally

to jurisdiction in Texas. “[J]urisdiction over an individual generally cannot be

based on jurisdiction over a corporation with which he is associated unless the

corporation is the alter ego of the individual.” Vosko v. Chase Manhattan Bank,

N.A., 909 S.W.2d 95, 99 (Tex. App—Houston [14th Dist] 1995, writ denied). In

addition, the fiduciary shield doctrine provides that corporate officers are not

subject to jurisdiction in a foreign forum where their actions are taken in a

representative capacity. Brown v. Gen. Brick Sales Co., Inc., 39 S.W.3d 291, 297–


                                         22                               4851-2191-0817.v1
98 (Tex.App.—Fort Worth 2001, no pet.) (citing Amoco Chem. Co. v. Tex. Tin

Corp., 925 F.Supp. 1192, 1201 (S.D. Tex. 1996)).

        Flotek has not shown that Ms. Vermeulen had any contacts with Texas other

than as a representative of Predator or her former employer. Instead, Flotek argued

to the District Court that Ms. Vemeulen was Predator’s alter ego.3 “Alter ego is a

basis for disregarding the corporate fiction ‘where a corporation is organized and

operated as a mere tool or business conduit of another corporation.’” Aluminum

Chems. Bolivia ,Inc. v. Bechtel Corp., 28 S.W.3d 64, 67 (Tex. App. – Texarkana

2000, no pet.) (quoting Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex.

1986)). However, “[u]nder Texas law, a corporation is presumed to be a separate

entity from its officers and shareholders.” Washington DC Party Shuttle, LLC v.

IGuide Tours, 406 S.W.3d 723, 938 (Tex. Ct. App. – Houston [14th Dist.] 2013,

pet. denied); see also Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458

(Tex. 1997). “As a result, a plaintiff who relies on the existence of an alter-ego

relationship to ascribe one defendant’s contacts with Texas to a nonresident must

prove such a relationship exists.” Washington DC Party Shuttle, LLC v. IGuide

Tours, 406 S.W.3d 723, 738 (Tex. Ct. App. – Houston (14th Dist.) 2013, pet.

denied) (citing Cappuccitti v. Gulf Indus. Prods., Inc., 222 S.W.3d 468, 482




3
 The District Court did not make any findings of fact or conclusions of law that Ms. Vermeulen was Predator’s alter
ego. See CR 287.



                                                        23                                         4851-2191-0817.v1
(Tex.App.-Houston [1st Dist.] 2007, no pet.). Flotek has failed to make such a

showing.

      The alter-ego theory “applies ‘when there is such a unity between

corporation and individual that the separateness of the corporation has ceased and

holding only the corporation liable would result in injustice.’” Aluminum Chems.

(Bolivia), inc. v. Bechtel Corp., 28 S.W.3d 64, 67 (Tex. App. – Texarkana 2000, no

pet.)) (quoting Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex. 1986)). It is

shown “from the total dealings of the corporation and the individual, including the

degree to which . . . corporate and individual property have been kept separately,

the amount of financial interest, ownership and control the individual maintains

over the corporation, and whether the corporation has been used for personal

purposes.’” Id.

      In this case, Flotek failed to allege alter ego in the Live Pleading, and there

is no evidence in the record to support Flotek’s argument that Ms. Vermeulen is

Predator’s alter ego. Instead, Flotek baldly made that argument, citing no

supporting evidence. CR 229. Not only is the record devoid of any evidence, the

assertion is contrary to the record evidence. Ms. Vermulen has only a minority

interest in Predator, owning only 20 percent and being only one of five (5) owners.

CR 274. She does not have a controlling interest. See id. Flotek provided no

evidence that she has any financial interest greater than her relative ownership



                                         24                              4851-2191-0817.v1
percentage. There is certainly no evidence that she used the monies of the company

as her own or for her personal purposes. In short, there is simply no evidence to

overcome the presumption that Ms. Vermeulen was separate from Predator.

Therefore, Ms. Vermeulen’s limited contacts with Texas taken in a representative

capacity do not subject her to jurisdiction in Texas.

   IV.    Exercising Jurisdiction over Predator Would not Comport With Fair
          Play and Justice

      Even if the Court were to decide that Predator and/or Ms. Vermeulen

purposefully established minimum contacts with Texas, those contacts must still be

evaluated in light of other factors to determine whether the assertion of personal

jurisdiction over them comports with fair play and substantial justice. Guardian

Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 228

(Tex. 1991) (citing Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113–

15, 107 S.Ct. 1026, 1033–34, 94 L.Ed.2d 92, 105 (1987); Burger King Corp. v.

Rudzewicz, 471 U.S. at 462, 476, 105 S.Ct. 2174, 2184 (1985). Only after a court

determines that a nonresident defendant has purposefully established minimum

contacts with the forum state — and neither Predator and Ms. Vermeulen have

done so — will the court evaluate these contacts in light of other factors to

determine whether the assertion of personal jurisdiction comports with fair play

and justice. Id. These factors include: 1) the burden on the defendant, 2) the

interests of the forum state in adjudicating the dispute, 3) the plaintiff’s interest in


                                          25                                4851-2191-0817.v1
obtaining convenient and effective relief, 4) the interstate judicial system’s interest

in obtaining the most efficient resolution of controversies, and 5) the shared

interest of the several States in furthering fundamental substantive social policies.

Id.

      Fundamentally, the Court need not engage in this analysis because neither

Predator nor Ms. Vermeulen have minimum contacts with Texas. However, in

addition to the foregoing, these five (5) factors also militate against the exercise of

jurisdiction over Predator and Ms. Vermeulen. As for the first factor, the burden to

these defendants in defending this case is substantial. Predator, a company of six

(6) employees, and Ms. Vermeulen are forced to defend themselves in a venue

many states and approximately 1,300 miles away. Predator would need to send

one or more representatives to Texas to attend court proceedings, and this would

unduly disrupt Predator’s business and operations. The cost and time associated

with such travel are considerable, as would be the lost business opportunities for

Predator. With respect to the second and third factors, Texas has little interest in

providing a forum to litigate a dispute between Appellee and complete strangers,

especially when there are other, less burdensome forums for Appellee to bring its

claims. Lonza AG v. Blum, 70 S.W.3d 184, 193 (Tex. App.--San Antonio 2001,

pet. denied) (holding that the exercise of long-arm jurisdiction would not comport

with fair play and justice after noting that evidence existed outside the subpoena



                                          26                                4851-2191-0817.v1
power of the court). It is important to note that Appellee also conducts business in

Wyoming. CR 296 Consequently, there is no reason why this dispute cannot be

litigated in Wyoming, a forum where Flotek, Predator, and Ms. Vermeulen all have

a presence.4 Id. Finally, any interests of factors 4 and 5 do not outweigh the

mandate from factors 1, 2, and 3 not to exercise jurisdiction over Predator or Ms.

Vermeulen.

         In short, it would offend traditional notions of fair play and substantial

justice if Texas asserted jurisdiction over these defendants. As such, Flotek’s

claims against Predator and Ms. Vermeulen should be dismissed. Guardian Royal

Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 232-233

(Tex. 1991) (finding that it would offend traditional notions of fair play and justice

to subject a nonresident defendant to personal jurisdiction in Texas because it

would be burdensome for the defendant to submit to a foreign judicial system

when the alleged acts occurred outside of Texas).

    V.       CONCLUSION

             Predator and Ms. Vermeulen respectfully request that the district court’s

    ruling denying Appeallants’ Special Appearances be reversed. Ms. Vermeulen

    and Predator further request that they be dismissed from the action in the trial

    court for lack of personal jurisdiction.

4
 In fact, the only other party to this lawsuit, Chris Vermeulen, lives in Casper, Wyoming, and would be subject to
personal jurisdiction in Wyoming.



                                                       27                                         4851-2191-0817.v1
     Respectfully submitted,

     ANDREW L. MINTZ, PLLC

     /s/ Andrew L. Mintz
     Andrew L. Mintz
     SBOT No. 24037120
     2603 Augusta, Suite 880
     Houston, Texas 77057
     PHONE: (713) 780-7100
     FAX: (713) 780-7111

     KIRTON MCCONKIE
     Ryan B. Frazier (pro hac vice)
     50 E. South Temple, Suite 400
     Salt Lake City, Utah 84111
     PHONE: (801) 328-3600
     FAX: (801) 221-2087


     ATTORNEYS FOR DEFENDANT
     PREDATOR DOWNHOLE, INC.




28                             4851-2191-0817.v1
                       CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
this computer generated document is printed in 14-point typeface and contains
6591 words, including footnotes, but not including the caption, identity of parties
and counsel, statement regarding oral argument, table of contents, index of
authorities, statement of the case, statement of issues presented, statement of
jurisdiction, signature, proof of service, certification, and certificate of compliance.

                                                            /s/ Andrew L. Mintz
                                                            Andrew L. Mintz

                           CERTIFICATE OF REVIEW
Pursuant to Texas Rule of Appellate Procedure 52.3(j), I hereby certify that I
have reviewed the Petition for Writ of Mandamus and concluded that every factual
statement in the petition is supported by competent evidence included in the
record.

                                                             /s/ Andrew L. Mintz
                                                             Andrew L. Mintz

                   CERTIFICATE OF FILING AND SERVICE
I hereby certify that this document was filed with Clerk of Court through the
Court’s electronic filing system (“efs”) and served on Appellee’s opposing
counsel by the same, or by regular U.S. mail if Appellee’s opposing counsel is
not enrolled to receive service by efs, on December 7, 2014.


                                                             /s/ Andrew L. Mintz
                                                             Andrew L. Mintz




                                           29                               4851-2191-0817.v1
