Tour Strategy LLC v. Star-Telegram, Inc. et al
Filing
28
Memorandum Opinion and Order: Having considered the motion (doc. 6 ), plaintiff's response thereto, McClatchy's reply, the applicable legal authorities, and the entire record, the court finds that the motion should be granted and tha t plaintiff's claims against McClatchy should be dismissed. The court further orders that from this point forward, the style of this action shall be "Tour Strategy LLC, d/b/a Redan Bilingual Media, Plaintiff, v. Star-Telegram, Inc., and Valassis Sales and Marketing Services, Inc., Defendants. (Ordered by Judge John McBryde on 4/20/2018) (edm)
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
TOUR STRATEGY LLC,
D/B/A REDAN BILINGUAL MEDIA,
Plaintiff,
VS.
APR
2 0 ?ll\l\
§
§
§
§
§
§
NO. 4:18-CV-074-A
§
STAR-TELEGRAM,
INC. , ET AL. ,
Defendants.
§
§
§
MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision is the
motion of defendant McClatchy U.S.A.,
Inc.
("McClatchy"), to
dismiss the claims of plaintiff, Tour Strategy LLC, d/b/a Redan
Bilingual Media, against it.
Having considered the motion,
plaintiff's response thereto, McClatchy's reply, the applicable
legal authorities, and the entire record, the court finds that
the motion should be granted and that plaintiff's claims against
McClatchy should be dismissed.
I.
Background
Plaintiff initiated the above-captioned action on May 23,
2016, by the filing of an original petition in the District Court
of Dallas County, Texas, 116th District.
The original petition
named as defendant "Star-Telegram, d/b/a/ Fort Worth Star
Telegram/La Estrella En Casa."
On November 4, 2016, the action
was transferred to the District Court of Tarrant County, Texas,
153rd Judicial District.
On December 5, 2016, plaintiff filed
its first amended petition, naming as defendant Star-Telegram,
Inc.
( "STI").
On December 18, 2017, plaintiff again amended its
pleading by the filing of a second amended petition, this time
adding as defendants McClatchy and Valassis Sales and Marketing
Services, Inc.
("Valassis") .
After being served with the second
amended petition, McClatchy filed on February 2, 2018, its notice
of removal based on diversity of citizenship, to which STI and
Valassis consented.
McClatchy then made a special appearance,
moving the court to dismiss plaintiff's claims against it for
lack of personal jurisdiction.
Plaintiff's live pleading is its second amended petition,
filed in state court on December 18, 2017.
Exhibit D.
See Doc.
1
1-12,
In it, each of plaintiff's claims relate to disputes
arising with respect to a two contracts, one between plaintiff
and STI, and another between plaintiff and Valassis.
II.
Grounds of the Motion
McClatchy moves the court to dismiss plaintiff's claims
against it pursuant to Rule 12 (b) (2) of the Federal Rules of
'The "Doc._" reference is to the number assigned to the referenced item on the docket in this
action, No. 4: l 8-CV-74-A.
2
Civil Procedure.
McClatchy argues it is not a citizen of Texas
and has insufficient contacts with the claims asserted in the
above-captioned action, the parties, the forum, and Texas, with
the result that it cannot be subject to specific or general
personal jurisdiction of this court.
III.
Applicable Legal Principles
The burden is on plaintiff to establish the court's
jurisdiction over defendants.
Wilson v. Belin, 20 F.3d 644, 648
(5th Cir. 1994); Stuart v. Spademan, 772 F.2d 1185, 1192
Cir. 1985).
(5th
Personal jurisdiction need not be established by a
preponderance of the evidence at this stage; prima facie evidence
is sufficient.
1989).
WNS, Inc. v. Farrow, 884 F.2d 200, 203
(5th Cir.
The court may resolve jurisdictional issues by reviewing
pleadings, affidavits, exhibits, any part of the record, and any
combination thereof.
Command-Aire Corp. v. Ontario Mech. Sales &
Serv., Inc., 963 F.2d 90, 95 (5th Cir. 1992).
Allegations of
plaintiff's complaint are taken as true except to the extent that
they are contradicted by a defendant's evidence, such as
affidavits.
1982).
Wyatt v. Kaplan, 686 F.2d 276, 282-83 n.13
(5th Cir.
Any genuine, material conflicts are resolved in favor of
plaintiff.
Jones v. Petty-Ray Geophysical Geosource, Inc., 954
F.2d 1061, 1067 (5th Cir. 1992).
3
In a diversity action, personal jurisdiction over a
nonresident may be exercised if
(1) the nonresident defendant is
amenable to service of process under the law of the forum state,
and (2) the exercise of jurisdiction under state law comports
with the due process clause of the Fourteenth Amendment.
20 F.3d at 646-47.
Wilson,
Since the Texas long-arm statute has been
interpreted as extending to the limits of due process, the only
inquiry is whether the exercise of jurisdiction over the
nonresident defendant would be constitutionally permissible.
Bullion v. Gillespie, 895 F.2d 212, 216
(5th Cir. 1990).
For due process to be satisfied, a nonresident must have
minimum contacts with the forum state resulting from an
affirmative act on the defendant's part and the contacts must be
such that the exercise of jurisdiction over defendant does not
offend traditional notions of fair play and substantial justice.
Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
The
"minimum contacts" prong of the due process requirement can be
satisfied by a finding of either "specific" or "general"
jurisdiction over the nonresident.
Bullion, 895 F.2d at 216.
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.
4
Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475 (1985).
Even if the controversy
does not arise out of or relate to the nonresident's purposeful
contacts with the forum, general jurisdiction may be exercised
when the nonresident defendant's contacts with the forum are
sufficiently continuous and systematic as to support the
reasonable exercise of jurisdiction.
Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 416
Benguet Consol. Mining Co., 342 U.S. 437
(1984); Perkins v
(1952).
When general
jurisdiction is asserted, the minimum contacts analysis is more
demanding and requires a showing of substantial activities within
the forum state.
Jones, 954 F.2d at 1068.
As the Supreme Court
has explained, the proper consideration when determining general
jurisdiction is whether the defendant's affiliations with the
state are so continuous and systematic as to render it
"essentially at home" in the forum state.
Daimler AG v. Bauman,
134 S. Ct. 746, 761 (2014) (quoting Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915,
919
(2011)).
For
example, a corporation's place of incorporation and principal
place of business are the places where it is at home and are thus
paradigm bases for jurisdiction.
Id. at 760.
A corporation is
not "at home" in every state where it engages in a substantial,
continuous, and systematic course of business.
762 n.20.
5
Id. at 760-61,
IV.
Analysis
A review of plaintiff's second amended petition .and
plaintiff's response to McClatchy's motion to dismiss reveal that
plaintiff has not made the showing necessary to establish that
McClatchy may properly be subject to the exercise of jurisdiction
by this court.
The second amended petition itself does not
contain any factual allegations to support the exercise of
personal jurisdiction over McClatchy, a nonresident,' in Texas.
In fact,
the fact section of such petition makes only two
mentions of McClatchy, neither of which is sufficient to
establish general or specific jurisdiction. 3
It is not enough
for plaintiff to simply state that McClatchy engaged in some
conduct, plaintiff must allege that McClatchy's conduct occurred
in the forum state and gave rise to plaintiff's claims.
~urger
2
The pa1iies do not appear to dispute that McClatchy is a nonresident.
'With regard to McClatchy, plaintiff states:
On information and belief, an agreement existed between Valassis,
McClatchy[,] and [Star-Telegram, Inc.] with regard to sales ... that forced
[plaintiff] ... to buy ads ... and these 'forced buys' effectively shut [plaintiff] out
of the Thanksgiving Day market with Valassis.
This interference by [Star-Telegram, Inc.], McClatchy[,] and Valassis ... has not
only caused Redan economic loss ... but has also disrupted and damaged Redan's
ongoing business reputation and relationship with Valassis.
Doc. 1-12, Exhibit D at ECF 14-15. The ECF page number reference is to the ECF header numbers at
the tops of the pages in this case.
6
King Corp., 471 U.S. at 475.
Alternatively, plaintiff must
allege that McClatchy has "sufficiently continuous and
systematic" contacts with Texas. Helicopteros, 466 U.S. at 416.
Plaintiff's second amended petition alleged neither.
Plaintiff's response to McClatchy's motion to dismiss fares
no better.
It does not contest any fact or argument made in
McClatchy's motion or the motion's attachments, nor was it
supported by any evidence on the subject of personal
jurisdiction.'
The best plaintiff's response does is state that
plaintiff has evidence that "McClatchy was substantially involved
[in] the facts underlying this lawsuit."
(internal quotation marks omitted).
Doc. 16 at 1, ' 2
Plaintiff has not presented
any factual allegations that suggest with reasonable
particularity the possible existence of the requisite contacts
with Texas.
429, 434
See Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d
(5th Cir. 2014).
The fact that such evidence may exist
somewhere does not cure plaintiff's deficiencies in establishing
'McClatchy, on the other hand, has provided evidence on the subject of personal jurisdiction.
See Doc. 8. First, the declaration ofR. Elaine Lintecum, who serves in high level positions at
McClatchy, ST!, and another company, stated that McClatchy's does no business in Texas, that no
contract or affiliation has ever existed between McClatchy and plaintiff, and that McClatchy and ST! are
two separate and distinct entities, their only connection being that McClatchy owns, registers, and
maintains STI's trademark. McClatchy also provided a copy of a form filed with the California Secretary
of State, which shows McClatchy's address to be 2100 Q Street, Sacramento, California 95816 and
corroborates that Elaine Lintecum is an officer of McClatchy, albeit in a different role from the one
described in her declaration.
7
here that McClatchy may be properly subjected to the jurisdiction
of this court.
The court notes that plaintiff states in its response that
it believes McClatchy "appears to be hinting that [plaintiff]
sued a McClatchy entity different than the one with whom Redan
conducted business.•
Doc. 16 at 1, '
2.
The court has not found
in any of the papers on file in this action indication that
plaintiff named as a defendant any entity other than the entity
it intended to name.
Plaintiff further asks that it be granted
leave to file an amended complaint naming the proper McClatchy
entity.
If plaintiff wants the court to consider this request,
it should be submitted to the court in the proper form,
than tacked on to a response to a motion.
rather
See Local Civil Rule
LR 15 .1 (a).
V.
Order
For the foregoing reasons,
The court ORDERS that McClatchy's motion to dismiss be, and
is hereby, granted, and all claims and causes of action asserted
by plaintiff against McClatchy in the above-captioned action be,
and are hereby, dismissed.
The court finds that there is no just reason for delay in,
8
and hereby directs, entry of final judgment as to the dismissal
of plaintiff's claims against McClatchy.
The court further orders that from this point forward,
the
style of this action shall be "Tour Strategy LLC, d/b/a Redan
Bilingual Media, Plaintiff, v. Star-Telegram, Inc.,
Sales and Marketing Services, Inc., Defendants.•
SIGNED April 20, 2018.
9
and Valassis
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?