Heavy Duty Productions, LLC v. Bandwth, LLC et al

Filing 8

REPORT AND RECOMMENDATIONS that the District Court GRANT Defendants' 3 Motion to Dismiss for Lack of Jurisdiction and dismiss this case without prejudice for lack of jurisdiction. Signed by Judge Andrew W. Austin. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
HEAVY DUTY PRODUCTIONS, LLC
V.
BANDWDTH, LLC, COHERENTRX,
INC., and THOMAS R. HARTLE

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A-14-CV-974-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are: Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction (Dkt.

No. 3); and Plaintiff’s Response (Dkt. No. 4). The District Court referred the above-motion to the
undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. §636(b) and
Rule 1(c) of Appendix C of the Local Rules of the United States District Court for the Western
District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.
I. GENERAL BACKGROUND
Plaintiff Heavy Duty Productions, LLC (“Heavy Duty”) is a Massachusetts limited liability
company with its principal place of business in Travis County, Texas. Dkt. No. 1-1. Before moving
to Texas, Heavy Duty was based out of California. Dkt. No. 3, Ex. A at ¶12-13. Defendant
Bandwdth1 is a dissolved Delaware limited liability company that was headquartered in California.
Id. at ¶ 2. It developed mobile applications primarily for use in the music industry. Id. at ¶ 11.
Defendant CoherentRX is a Delaware corporation with its principal place of business in Michigan.
Id. at ¶ 16. It develops mobile applications for use in the healthcare industry. Id. at ¶ 17. Defendant

1

This is, in fact, the correct spelling of the defendant’s name. The record does not reflect why
they chose to misspell “bandwidth,” but there is no doubt a good reason for it.

Thomas Hartle is an individual residing in Michigan. Id. at ¶ 27-28. He is a founder and president
of both Bandwdth and Coherent. Id. at ¶ 2.
Heavy Duty claims that it performed services for Bandwdth in 2010-11, and was not paid for
those services. It now brings a claim for payment on a sworn account. Dkt. No. 1-1. Heavy Duty
further alleges that Hartle and Coherent are liable as successors to Bandwdth, and also that they
engaged in fraudulent transfers of assets from Bandwdth when it closed its doors. Id. at 4-5. Suit
was originally filed in state court on September 11, 2014, styled Heavy Duty Productions, LLC v.
Bandwdth, LLC, CoherentRX, Inc., and Thomas R. Hartle, No. D-1-GN-14-003616, in the 353rd
Judicial Court, Travis County, Texas. On October 27, 2014, the defendants removed the case to this
Court on the basis of diversity. They now move to dismiss the case for lack of personal jurisdiction.
II. ANALYSIS
Defendants assert that Heavy Duty’s sole jurisdictional allegation is that “Bandwdth has
entered into agreements and accepted services from [Heavy Duty] in the State of Texas.” Dkt. No.
1-1 at 1. Defendants contend that to the extent that there was a business relationship between
Bandwdth and Heavy Duty, that entire relationship took place in California and terminated before
Heavy Duty moved to Texas. Dkt. No. 3-1 at ¶¶ 12-14. According to Defendants, the mere fact that
Heavy Duty is now located in Texas is not enough to subject Defendants to suit in Texas.
Additionally, Defendants argue, because the only basis for jurisdiction over Coherent and Hartle is
successor liability, and neither Coherent nor Hartle has contacts with Texas or relationships with
Heavy Duty separate from whatever Bandwdth had, there is no basis for personal jurisdiction over
them either. Heavy Duty responds that the Court has specific jurisdiction over all Defendants
because Bandwdth’s contacts with Texas give rise to the claims Heavy Duty asserts against them.
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A.

Legal Standard

Under Federal Rule of Civil Procedure 12(b)(2), the “plaintiff bears the burden of
establishing a district court’s jurisdiction over a non-resident.” Johnston v. Multidata Sys. Int'l
Corp., 523 F.3d 602, 609 (5th Cir. 2008). A plaintiff must make a prima facie showing that the
defendant is subject to personal jurisdiction; “[p]roof by a preponderance of the evidence is not
required.” Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990) (citing D.J. Invs. Inc. v. Metzeler
Motorcycle Tire Agent Gregg, Inc., 754 F.2d 542, 545–46 (5th Cir. 1985)). At the motion stage,
“uncontroverted allegations in the plaintiff’s complaint must be taken as true, and conflicts between
the facts contained in the parties’ affidavits must be resolved in the plaintiff’s favor.” Id.
“A federal court sitting in diversity may exercise personal jurisdiction over a non-resident
defendant (1) as allowed under the state’s long-arm statute; and (2) to the extent permitted by the
Due Process Clause of the Fourteenth Amendment.” Mullins v. TestAmerica, Inc., 564 F.3d 386,
398 (5th Cir. 2009). The Texas long-arm statute extends to the limits of due process. Id. To satisfy
due process, the plaintiff must demonstrate “(1) that the non-resident purposefully availed himself
of the benefits and protections of the forum state by establishing ‘minimum contacts’ with the state;
and (2) that the exercise of jurisdiction does not offend ‘traditional notions of fair play and
substantial justice.’” Johnston, 523 F.3d at 609.
“A defendant establishes minimum contacts with a state if ‘the defendant's conduct and
connection with the forum state are such that [he] should reasonably anticipate being haled into court
there.’” Nuovo Pignone, SpA v. Storman Asia M/V, 310 F.3d 374, 379 (5th Cir. 2002) (quoting
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)). “There are two types of ‘minimum
contacts’: those that give rise to specific personal jurisdiction and those that give rise to general
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personal jurisdiction.” Lewis v. Fresne, 252 F.3d 352, 358 (5th Cir. 2001). A court has general
jurisdiction over a nonresident defendant “to hear any and all claims” against him when his contacts
with the state are so “‘continuous and systematic’ as to render [him] essentially at home in the
forum.” Goodyear Dunlop Tires Operations v. Brown, 131 S.Ct. 2846, 2851 (2011). As noted,
Heavy Duty does not contend that there is general jurisdiction over the Defendants, so the only issue
here is whether the Court has specific jurisdiction over the Defendants.
“In contrast to general, all-purpose jurisdiction, specific jurisdiction is confined to
adjudication of ‘issues deriving from, or connected with, the very controversy that establishes
jurisdiction.’” Id. at 2851 (citation omitted). The Fifth Circuit frames the specific jurisdiction issue
with a three-step analysis:
(1) whether the defendant has minimum contacts with the forum state, i.e., whether
it purposely directed its activities toward the forum state or purposefully availed itself
of the privileges of conducting activities there; (2) whether the plaintiff’s cause of
action arises out of or results from the defendant’s forum related contacts; and (3)
whether the exercise of personal jurisdiction is fair and reasonable.
Monkton Ins. Servs. v. Ritter, 768 F.3d 429, 433 (5th Cir. 2014) (citing Seiferth v. Helicopteros
Atuneros, Inc., 472 F.3d 266, 271 (5th Cir. 2006)). The plaintiff bears the burden of satisfying the
first two prongs; if the plaintiff is successful, the burden shifts to the defendant to show that
exercising jurisdiction would be unfair or unreasonable. Seiferth, 472 F.3d at 271. The main
question is “whether there was ‘some act by which the defendant purposefully avail[ed] [himself]
of the privilege of conducting activities within the forum State, thus invoking the benefits and
protections of its laws.’” Goodyear, 131 S.Ct. at 2854 (quoting Hanson v. Denckla, 357 U.S. 235,
253 (1958)). The Supreme Court recently stated that “[f]or a State to exercise jurisdiction consistent

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with due process, the defendant’s suit-related conduct must create a substantial connection with the
forum State.” Walden v. Fiore, 134 S.Ct. 1115, 1121 (2014).
In another case involving the reach of personal jurisdiction, two years ago the undersigned
wrote the following:
The law of personal jurisdiction, which stems from constitutional principles, is
judge-made, and although it has evolved greatly over the past 100 years, it remains
obtuse and burdened by conclusory concepts. The fundamental principles are handed
down by the Supreme Court, interpreted and refined by the courts of appeal, and then
applied to real cases by the district courts. The result is that tens of thousands of
cases addressing personal jurisdiction are cluttered with the same phrases, derived
from seminal Supreme Court decisions, and repeated like mantras. Courts routinely
recite the facts of a case, and then, using the doctrinal phrases, simply pronounce that
a defendant “purposefully availed itself of the privilege of conducting activities” in
the forum or “purposefully directed its activities” toward the forum. This problem
of unenlightening conclusory phrases in jurisdictional case law is not new, as it was
noted more than 80 years ago by Learned Hand, as he discussed the notion of a
corporation’s “presence” for purposes of jurisdiction: “It scarcely advances the
argument to say that a corporation must be ‘present’ in the foreign state, if we define
that word as demanding such dealings as will subject it to jurisdiction, for then it
does no more than put the question to be answered.” Hutchinson v. Chase & Gilbert,
Inc., 45 F.2d 139, 141 (2d Cir.1930). Judge Hand remarked that “it has become quite
impossible to establish any rule from the decided cases; we must step from tuft to tuft
across the morass.” Id. at 142.
Although the Supreme Court has tried in numerous cases to bring some order to this
area of the law, the morass remains. In the seminal case of International Shoe, the
Court defended its inability to state bright line rules by invoking the fact that the
inquiry was a constitutional one:
It is evident that the criteria by which we mark the boundary line
between those activities which justify the subjection of a corporation
to suit, and those which do not, cannot be simply mechanical or
quantitative. The test is not merely, as has sometimes been suggested,
whether the activity, which the corporation has seen fit to procure
through its agents in another state, is a little more or a little less.
Whether due process is satisfied must depend rather upon the quality
and nature of the activity in relation to the fair and orderly
administration of the laws which it was the purpose of the due
process clause to insure.
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326 U.S. at 319 (citations omitted). Even after thirty years to sort out what
International Shoe’s “minimum contacts” test means, the Court made little progress:
Like any standard that requires a determination of “reasonableness,”
the “minimum contacts” test of International Shoe is not susceptible
of mechanical application; rather the facts of each case must be
weighed to determine whether the requisite “affiliating
circumstances” are present. . . . We recognize that this determination
is one in which few answers will be written in black and white. The
greys are dominant, and even among them the shades are
innumerable. Kulko v. Superior Court, 436 U.S., 84, 92 (1978).
Transverse, LLC v. Info Directions, Inc., 2013 WL 3146838 at *3-4 (W.D. Tex. June 17, 2013).
Unfortunately, not much has changed in the past two years, and the law of personal
jurisdiction remains as clear as mud. Indeed, if anything, technology, the internet and global
electronic commerce have stretched the concept of “jurisdiction” close to a breaking point. A few
helpful principles have emerged, however. First, for contacts with a state to subject a party to suit
there, the contacts must be “contacts that the ‘defendant himself’ creates with the forum State.”
Walden, 134 S.Ct. at 1122 (quoting Burger King, 471 U.S. at 475) (emphasis added). Second, the
principles and limits of jurisdiction “principally protect the liberty of the nonresident defendant—not
the convenience of the plaintiff[ ] or third parties.” Id. (citing World–Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 291-92 (1980)). The Supreme Court has “consistently rejected attempts
to satisfy the defendant-focused ‘minimum contacts’ inquiry by demonstrating contacts between the
plaintiff (or third parties) and the forum State.” Id. “Put simply, however significant the plaintiff’s
contacts with the forum may be, those contacts cannot be ‘decisive in determining whether the
defendant’s due process rights are violated.’” Id. (quoting Rush v. Savchuk, 444 U.S. 320, 332
(1980)). Stated another way, “plaintiff cannot be the only link between the defendant and the forum.

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Rather, it is the defendant’s conduct that must form the necessary connection with the forum State
that is the basis for its jurisdiction over him.” Id.
B.

Jurisdictional Facts

It is undisputed that Bandwdth initially engaged in business with Heavy Duty while Heavy
Duty was located in San Francisco, California. At that time, there were absolutely no connections
between Texas and the parties’ relationship. Heavy Duty notified Bandwdth via e-mail on August
18, 2010, that it had relocated and its new address was in Austin, Texas. Heavy Duty owner/operator
Jim Lewin identified this address as his home address in the same e-mail in which he stated to
Bandwdth “[p]lease accept my sincere thanks for offering to send payments to my home instead of
handing them to me in twenties at a midnight blackjack table in Reno.” Dkt. No. 4-2 at 3. Heavy
Duty argues that it performed services for Bandwdth after Heavy Duty relocated to Austin, and that
Bandwdth failed to pay for those services. Heavy Duty offers as evidence a bill submitted to
Bandwidth dated December 23, 2011, for services rendered from May 20, 2010, to March 31, 2011.
Dkt. No. 4-3. Heavy Duty also submits a number of e-mails between Hartle and Lewin relating to
ongoing business between Heavy Duty and Bandwdth. Dkt. No. 4-1. It notes that Hartle visited
Austin from March 14-20, 2011, and stayed at Lewin’s home. Dkt. No. 4-1 at ¶ 5. Lewin states that
while Hartle was there, the two met regarding the ongoing business between Heavy Duty and
Bandwdth. Id. Finally, in a marketing brochure, Bandwdth lists its “OFFICES (VIRTUAL)” as
“NYC, Austin, TX, and LA.” Dkt. No. 4-4.2

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Immediately above this statement is the following: “CORPORATE LOCATIONS: Sonoma,
CA; Buenos Aires, AR (Development).” Id.
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C.

Application

Heavy Duty has failed to proffer sufficient evidence that Bandwdth or the other Defendants
aimed their activities at Texas, or availed themselves of the privileges of conducting business in
Texas, such that they are subject to suit here. The only connection Defendants have with the state
of Texas is that one of them—Bandwdth—entered into a contract with Heavy Duty while its
principal place of business was located in California, and then continued the relationship after Heavy
Duty relocated to Texas. Continuing the relationship amounted to communicating with Heavy Duty
(mainly via email) regarding the terms and performance of their relationship. The Fifth Circuit has
explicitly held that “merely contracting with a resident of the forum state does not establish
minimum contacts.” Moncrief Oil Int'l v. OAO Gazprom, 481 F.3d 309, 311 (5th Cir.2007). See
also, Burger King Corp., 471 U.S. at 478.

Furthermore, “communications relating to the

performance of a contract themselves are insufficient to establish minimum contacts.”
Freudensprung v. Offshore Technical Servs., Inc., 379 F.3d 327, 344 (5th Cir. 2004).
In support of its motion Heavy Duty also points to the marketing document in which
Bandwth states it has a “virtual office” in Austin, Texas. Dkt. No. 4-4. But this same document also
states that Bandwdth has no employees and that “the Company currently operates virtually, using
freelancers for all design, editorial, production, development, and marketing functions.”
Immediately preceding the list of “virtual” locations is a list of “corporate locations”—which sounds
much less “virtual” and much more “real”—and these include only Sonoma and Buenos Aires. It
is not at all clear that identifying a “virtual office” in a state has any significance from the
jurisdictional standpoint, particularly when the company listing this “office” also states that it has
no employees and operates “virtually.”
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The number and extent of the communications between Defendants outside of Texas, to
Heavy Duty in the state, is also insufficient to show that Defendants were “aiming” their conduct at
Texas. Where the exchange of communications rests on nothing except “the mere fortuity that
[plaintiff] happens to be a resident of the forum,” it is insufficient to establish specific jurisdiction.
MH Outdoor Media, LLC v. Am. Outdoor Advertising, LLC, No. Civ. H–14–898, 2014 WL 4537959,
at *3 (S.D. Tex. Sept. 10, 2014). See also, McFadin v. Gerber, 587 F.3d 753, 759 (5th Cir. 2009)
(no personal jurisdiction in Texas even though Colorado saleswoman’s contact information appeared
on website, she had contract with Texas manufacturer, and her representative sold goods in Texas,
because contract centered around saleswoman’s operations outside Texas); Holt Oil & Gas Corp.
v. Harvey, 801 F.2d 773, 778 (5th Cir. 1986) (no specific jurisdiction where defendant
communicated extensively with, sent payments to, and contracted with Texas party for drilling
contract to be performed in Oklahoma). There simply is not enough evidence that Defendants aimed
any of their actions at Texas, so as to establish personal jurisdiction over them here.
Heavy Duty also contends that its claims arise from activity that is specifically regulated by
Texas consumer protection statutes, and under Texas law, an act governed by these statutes that
impacts a Texas resident will bestow jurisdiction over the offending party. See Siskind v. Villa
Found. for Educ., Inc., 642 S.W.2d 434, 436-37 (Tex. 1982). The holding in Siskind, however, is
not premised on the notion that a violation of a Texas consumer protection statute automatically
confers specific jurisdiction over the alleged out-of-state party; rather Siskind is a precursor to the
“effects” test spelled out in Calder v. Jones, 465 U.S. 783 (1984). As noted in the undersigned’s
2013 decision referenced earlier,

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The Fifth Circuit has stated that a finding of jurisdiction under Calder based on
“effects” in the forum state “is rare.” Stroman Realty, Inc. v. Wercinski, 513 F.3d
476, 486 (5th Cir.2008), cert. denied, 555 U.S. 816 (2008). The circuit has further
clarified that the effects test “is not a substitute for a nonresident’s minimum contacts
that demonstrate purposeful availment of the benefits of the forum state,” and “the
key to Calder is that the effects of an alleged intentional tort are to be assessed as part
of the analysis of the defendant's relevant contacts with the forum.” Allred v. Moore
& Peterson, 117 F.3d 278, 286 (5th Cir.1997), cert. denied, 522 U.S. 1048, (1998).
Transverse, 2013 WL 3146838 at *6.
As noted at the outset, this case involves a suit for breach of contract, suit on an account, and
claims that Defendants violated the Texas Uniform Fraudulent Transfer Act, TEX. BUS. C. CODE
§ 24.002 et seq (“TUFTA”). The argument now being considered is focused on the TUFTA claims,
which assert that each of the Defendants intentionally participated in the fraudulent transfer of
Bandwdth’s assets to Coherent in an effort to avoid payment of Heavy Duty’s invoices. To establish
a claim under TUFTA, a plaintiff must prove that (1) she is a “creditor” with a claim against a
“debtor”; (2) the debtor transferred assets after, or a short time before, the plaintiff's claim arose; and
(3) the debtor made the transfer with the intent to hinder, delay, or defraud the plaintiff. Nwokedi
v. Unlimited Restoration Specialists, Inc., 428 S.W.3d 191, 203–05 (Tex. App. – Houston 1st
Dist.2013, pet. denied). Heavy Duty maintains that the following facts support its fraudulent transfer
claim:
•

From and after August 6, 2010, Heavy Duty Productions provided services for
Bandwdth from Austin, Texas, and performed those throughout 2010 and 2011.

•

Throughout 2010 and even through 2014, Jim Lewin, on behalf of Plaintiff,
communicated regularly with Hartle, on behalf of the Defendants, concerning the
work that was being performed, ongoing work, and request for payment. These
communications include substantial email communications between the two.

•

Mr. Hartle continued to represent that payment would be made. Plaintiff did not
discover until April of 2014 that no payment would be made and, instead, that
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Bandwdth was being “dissolved” and that Mr. Hartle was engaged in a new business,
CoherentRX, Inc., which would utilize the business model, contacts and knowledge
of Bandwdth. Some of the business contacts that lead to work performed by Coherent
originated from Bandwdth’s business activities.
•

Mr. Hartle and Coherent issued stock, notes or other debt or equity interests in
Coherent to former Bandwdth investors for no new consideration, but made no such
offer to Heavy Duty Productions nor any payment to Heavy Duty Productions.

Dkt. No. 4 at 2 (citations omitted). Heavy Duty contends that specific jurisdiction exists because
Defendants’ this conduct amounts to an intentional tort intended, or highly likely, to harm Heavy
Duty in Texas.
Even when the issue is focused on a tort, and not a pre-existing contractual relationship, “the
[jurisdictional] inquiry still ‘focuses on whether the conduct underlying the claims was purposefully
directed at the forum state.’ ‘[T]he plaintiff's residence in the forum, and suffering of harm there, will
not alone support jurisdiction under Calder.” Transverse, 2013 WL 3146838 at *8 (citations
omitted). Thus, the ultimate issue is: did Defendants “‘purposefully direct’ or ‘expressly aim’ its
activities at Texas?” Id. With regard to Coherent, which allegedly received assets from Bandwdth,
Heavy Duty has failed to point out any contacts between Coherent and Texas related to the tort in
issue. As stated in Mullins v. TestAmerica, “we are skeptical of [the plaintiff’s] suggestion that a
non-resident defendant’s receipt of assets transferred with an intent to hinder, delay, or defraud a
creditor ipso facto establishes personal jurisdiction in the state where a complaining creditor
resides.” Mullins, 564 F.3d at 400. As noted, the “effects” test in Calder does not supplant the need
for Bandwdth to demonstrate minimum contacts that show Coherent aimed actions at Texas. As the
Fifth Circuit noted in Mullins,
the premise of the fraudulent transfer claim asserted by [Plaintiff] . . . requires only
a finding of fraudulent intent on the part of the “debtor,” not the transferee.
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Knowingly accepting a fraudulent transfer may subject a transferee to liability, but
such conduct is not necessarily tantamount to committing a wrongful act purposefully
aimed at a creditor of the transferor in his state of residence. . . .We are thus doubtful
that personal jurisdiction exists over the recipient of a fraudulent transfer anywhere
a complaining creditor files suit simply by virtue of the creditor’s residence in that
forum.
Mullins, 564 F.3d at 401 (citations omitted). Heavy Duty has failed to overcome this problem with
regard to Coherent.
With regard to Bandwdth and Hartle, their alleged act of dissolving a company without
paying its debts is insufficient to establish that they were specifically directing the resultant harm at
its Texas debtor. As the Fifth Circuit has stated,
recognizing that such collateral consequences may be far-reaching (particularly in a
commercial tort situation such as the one before us), our precedent holds that
consequences stemming from the actual tort injury do not confer personal jurisdiction
at the site or sites where such consequences happen to occur.
Jobe v. ATR Marketing, Inc., 87 F.3d 751, 753 (5th Cir. 1996). See also Hoffman v. L & M Arts, 774
F.Supp.2d 826, 844 (N.D. Tex.2011) (allegedly tortious acts occurring outside of Texas do not
establish personal jurisdiction over the defendant on tortious interference claim). In this case,
Bandwdth, a Delaware corporation headquartered in California, transferred its assets to Coherent,
a Delaware corporation with its principal place of business in Michigan. As a result, Heavy Duty
claims it suffered a financial injury in Texas. These facts do rise to the level of being purposeful
tortious acts directed at Texas. In fact, the portion of the parties’ relationship that arguably had
something to do with the Texas—the e-mails and communications by Defendants with Heavy Duty
in Texas—do not relate in any way to the fraudulent transfer claim. Assuming that a fraudulent
transfer did occur, it occurred outside of Texas and did not involve any Texas property or property
formerly owned by a Texas entity.
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The cases Heavy Duty relies upon in support of its argument under TUFTA are not on point.
For example, Mullins, supra, involved a multitude of contacts with the forum state. The Court in
Mullins found that the actions that thwarted the party’s right to payment under its contracts “were
executed by [defendant] Faraway in Texas, where Faraway resides,” and that the debtor-creditor
relationship at issue was “centered in Texas.” Mullins, 564 F.3d at 401. Additionally, Mullins
involved a claim that one major creditor—located in Texas—was singled out as the only creditor not
payed as a result of the allegedly fraudulent transfer. Here, there is no evidence that this is the case
(as discussed below).
In Dontos v. Vendomation NZA Ltd., 582 Fed. Appx. 338 (5th Cir. 2014), the court based its
jurisdictional finding on the fact that the defendants allegedly fraudulently transferred assets
specifically to prevent Texas plaintiffs from collecting a pre-existing Texas judgment, thus
demonstrating that the Texas residents were the express targets of the defendants’ acts. This is not
the case here, where Heavy Duty’s complaint is that Bandwdth fraudulently transferred its assets in
order to avoid payment of its bill. Heavy Duty fails to plead that Bandwdth acted to single it out as
a debtor. While Lewin’s Affidavit states “Heavy Duty Productions was one of the few vendors, if
not the only vendor, that was not paid by Bandwdth” he also states that “after [Hartle] told me in
April 2014, that Bandwdth needed to be dissolved, I learned that Bandwdth had been
administratively dissolved by the State of Delaware in 2012 for Bandwdth’s failure to pay Delaware
LLC tax for 2012 and prior years.” Dkt. No. 4-1. Thus, the evidence here shows that Bandwdth was
failing to pay other creditors as well. The TUFTA claims here do not establish the sort of targeted
activity described in Mullins and Dontos. See, e.g., Allen & Vellone, P.C. v. Pino, 2014 WL
1040634 (D. Colo. Mar. 18, 2014) (“Fairly construed, Plaintiffs’ allegation is that they—like all
13

other creditors—were negatively affected by Defendant Pino’s actions. That is a far cry from the
purposeful, targeted actions that were established in Mullins.”); AAA Cooper Transp. v. Wes–Pak,
Inc., 2012 WL 847470 (M.D. Ala. Mar. 13, 2012) (“[T]here is no evidence that AAA Cooper was
paid less than other creditors or treated differently than any of Wes–Pak's other creditors.”).
Because the first two factors of the specific jurisdiction test are not met, the Court need not
address whether exercising jurisdiction is fair and reasonable—the third factor—which is only
considered “[o]nce it has been decided that a defendant purposefully established minimum contacts
within the forum State. . . .” Burger King, 471 U.S. at 476. Even acknowledging that the third factor
can “sometimes serve to establish reasonableness of jurisdiction upon a lesser showing of minimum
contacts than would otherwise be required,” id. at 477, the first two factors are too weak here to be
saved by the third.
III. RECOMMENDATION
Based upon the foregoing, the undersigned RECOMMENDS that the District Court
GRANT Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction (Dkt. No. 3) and
DISMISS this case WITHOUT PREJUDICE for lack of jurisdiction.
IV. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
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shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass
v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 12th day of May, 2015.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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