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Racher v. Lusk

United States District Court, W.D. Oklahoma

May 23, 2017

DORIS RACHER, SANDRA CISPER, EARLENE ADKISSON, Co-Personal Representatives of the Estate of Eryetha Mayberry, Deceased; and JAMES KINGSBURY, Personal Representative of the Estate of and Next of Kin to Rachel Mary Kingsbury, Deceased, Plaintiffs,
v.
PATTI LUSK, an Individual, and RPM FAMILY INTERESTS LLC, a Texas limited liability company, Defendants.

          ORDER

          VICKI MlLES LaGRANCE UNITED STATES DISTRICT JUDGE

         Before the Court is defendants' Motion to Dismiss Plaintiffs' Complaint, filed March 1, 2017. On March 22, 2017, plaintiffs filed their response, and on March 29, 2017, defendants filed their reply.

         I. Introduction[1]

         Plaintiffs have final judgments against non-party Ron Lusk.[2] Defendant Patti Lusk is the wife of Ron Lusk. She is domiciled in and a citizen of the State of Texas and resides in Dallas, Texas. Defendant RPM Family Interests LLC (“RPM”) is a Texas limited liability company, and its sole member, owner, and manager is defendant Patti Lusk.

         Several years prior to the filing of the fraudulent transfer case against Ron Lusk, Ron Lusk and Ginger Barsotti formed an Oklahoma limited liability company known as Physician's Choice in Care, LLC, with Ron Lusk owning 50% and Ginger Barsotti owning the remaining 50%.[3] In September 2014, Ron Lusk and defendant Patti Lusk formed defendant RPM. Plaintiffs allege that defendant Patti Lusk and Ron Lusk formed defendant RPM, in part, for the purpose of fraudulently conveying Ron Lusk's assets to defendant RPM and to hinder, defraud, or delay plaintiffs' and Ron Lusk's other creditors from satisfying their claims against Ron Lusk. In December 2014, Ron Lusk sold his ownership interest in Physician's Choice in Care, LLC and directed the transfer of $500, 000 of proceeds from the sale to defendants. Plaintiffs allege that Ron Lusk conspired with defendant Patti Lusk and transferred these proceeds so as to avoid the claims of plaintiffs and other creditors. Plaintiffs further allege the $500, 000 in proceeds from the sale of Ron Lusk's ownership interest in Physician's Choice in Care, LLC is substantially all of Ron Lusk's remaining assets, and Ron Lusk has no remaining assets or other property to satisfy plaintiffs' claims.

         On February 2, 2017, plaintiffs filed the instant action against defendants, asserting a fraudulent transfer claim. Defendants now move, pursuant to Federal Rule of Civil Procedure 12(b)(2), to dismiss plaintiffs' Complaint for lack of personal jurisdiction. Specifically, defendants assert that plaintiffs cannot prove the required facts to subject defendants to the general or specific personal jurisdiction of an Oklahoma court.[4]

         II. Discussion

         When a court's jurisdiction is contested, the plaintiff has the burden of proving that jurisdiction exists. See ASAT Sports Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1056 (10th Cir. 2008). “Where a district court considers a pre-trial motion to dismiss for lack of personal jurisdiction without conducting an evidentiary hearing, the plaintiff need only make a prima facie showing of personal jurisdiction to defeat the motion.” Id. at 1056-57.

To obtain personal jurisdiction over a nonresident defendant in a diversity action, a plaintiff must show both that jurisdiction is proper under the laws of the forum state and that the exercise of jurisdiction would not offend due process. Because Oklahoma's long-arm statute permits the exercise of any jurisdiction that is consistent with the United States Constitution, the personal jurisdiction inquiry under Oklahoma law collapses into the single due process inquiry.

Intercon, Inc. v. Bell Atl. Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir. 2000) (internal citations omitted).

The Due Process Clause permits the exercise of personal jurisdiction over a nonresident defendant so long as there exist minimum contacts between the defendant and the forum State. The “minimum contacts” standard may be met in two ways. First, a court may, consistent with due process, assert specific jurisdiction over a nonresident defendant if the defendant has purposefully directed his activities at residents of the forum, and the litigation results from alleged injuries that arise out of or relate to those activities. When a plaintiff's cause of action does not arise directly from a defendant's forum-related activities, the court may nonetheless maintain general personal jurisdiction over the defendant based on the defendant's business contacts with the forum state.

Id. (internal quotations and citations omitted).

A specific jurisdiction analysis involves a two-step inquiry. First [a court] must consider whether the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. Second if the defendant's actions create sufficient minimum contacts, [a court] must then consider whether the exercise of personal jurisdiction over the defendant offends traditional notions of fair play and substantial justice.

Benton v. Cameco Corp., 375 F.3d 1070, 1075 (10th Cir. 2004) (internal quotations and citations omitted). “A defendant's contacts are sufficient if the defendant purposefully directed its activities at residents of the forum, and . . . the plaintiff's claim arises out of or results from actions by the defendant himself that create a substantial connection with the forum state.” Id. at 1076 (internal quotations and citation omitted) (emphasis in original). Further, ...


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