Bell v. The Moawad Group, LLC et al

Filing 21

ORDER GRANTING Defendants' 5 Motion to Dismiss for Lack of Personal Jurisdiction; DENYING Plaintiff's 13 Motion for Limited Jurisdictional Discovery. This case is transferred to the District of Arizona. Signed by Judge Sam Sparks. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

2OI1JIJN3O

PH 2:52
ftXF

KEITH BELL, PH. D.,
Plaintiff,

a

CAUSE NO.:
A-17-CA-00073-SS

-vs-

THE MOAWAD GROUP, LLC and
TREVOR MOAWAD,
Defendants.

ORDER
BE IT REMEMBERED on the 6th day of June 2017, the Court held a hearing in the

above-styled cause, and the parties appeared by and through counsel. Before the Court are

Defendants' Motion to Dismiss [#5], Plaintiffs Response [#11] in opposition, and Defendants'
Reply [#15] in support, as well as Plaintiff's Motion for Limited Jurisdictional Discovery [#13],
Defendants' Response [#14] in opposition, and Plaintiffs' Reply [#17] in support. Having
reviewed the documents, the governing law, and the file as a whole, the Court now enters the
following opinion and orders.

Background
This case involves claims for copyright infringement. Plaintiff Keith Bell, a resident of
Texas, describes himself as an "internationally recognized sports psychologist and sports

performance consultant." Am. Compi. [#10] ¶ 9. He is also the author of the copyrighted book,
Winning Isn

't

Normal. Id. ¶ 13. Defendants The Moawad Group, LLC (Moawad Group) and

Trevor Moawad (together, Defendants) provide consulting services in the fields of sports
performance, mental condition, and brand management to professional and collegiate athletes.
Id.

¶ 26. Trevor Moawad is a resident of Arizona and the sole manager of the Moawad Group. Id.

I

¶ 4. The Moawad Group, which was formed in 2014, is an Arizona limited liability company
with its principle place of business in Arizona. Id. ¶ 2;

see

also Mot. Dismiss [#5-1] (Trevor

Moawad Deci.) ¶ 5.
Bell provides a litany of factual allegations to prove Defendants have sufficient minimum

contacts with Texas to justify the exercise of personal jurisdiction. According to Bell, both

Defendants have "a long-standing and close business relationship with a renowned sports
performance center located in Texas" known as the Michael Johnson Performance (MJP). Id.

¶ 31. Indeed, Defendants admit to "[p]erforming limited services for MJP on a couple occasions
in [the past] two years." Reply [#15] at 7. MJP displays Trevor Moawad's staff biography on its
website as providing "mental skills." Am. Compl. [#10-1] Ex. F (MJP Staff Website) at 18-20.
Moreover, the Moawad Group's website displays a testimonial from the owner of MJP. Id. Ex. D

(Moawad Group's Website) at 10.

Regarding Trevor Moawad's contacts with Texas, Bell alleges that between 2002 and
2006, Trevor Moawad served as a sports psychologist "and/or mental conditioning coordinator"

for the women's soccer team at Texas A&M University. Am. Compl. [#10] ¶ 32; Reply [#15-1]
Ex. (Trevor Moawad Supp. Decl.) ¶J 8-9. The Moawad Group's website displays testimony

from a member of the women's soccer coaching staff at Texas A&M. Am. Compl. [#10] ¶ 34. In
2012, while working as an employee of a different company, Trevor Moawad traveled with the
University of Alabama football team to a college football bowl game in Texas. Id. ¶ 33; Reply
[#15] at 7. In 2013, Trevor Moawad traveled to Austin, Texas to promote his consulting services

at a South by Southwest panel. Am. Compl. [#10] ¶ 35; id. [#10-1] Ex. G (SXSW Ad) at 22. Bell

further alleges Trevor Moawad, in conjunction with the Moawad Group, maintains public social

media accounts on Twitter, Instagram, and Facebook to promote their consulting services; at

2

least some of their followers on these social media accounts reside in Texas. Am. Compl. [#10]
¶IJ

38-40.
In this lawsuit, Bell alleges Defendants reproduced, displayed, and distributed a 219-

word excerpt from Bell's Winning Isn't Normal on Twitter, Instagram, and Facebook in violation

of Bell's copyright. Id. ¶ 43. Bell alleges this excerpt, which remained posted on Defendants'
social media accounts from May 11, 2016, to December 6, 2016, represents "the heart of [his]

work" in Winning Isn 't Normal. Id. ¶J 43-44. According to Bell, Defendants posted the image
without Bell's authorization and used it to promote their services and interact with their
followers, some of whom live in Texas. Id. ¶ 45. Specifically, Bell maintains "one or more Texas

residents" who follow Defendants on social media "interact[ed] with the infringing posts through
retweets, likes, shares, and comments." Id. ¶ 46.
On February 3, 2017, Bell filed this lawsuit in the Western District of Texas. See Compl.
[#1]; see also Am. Compl. [#10]. Thereafter, Defendants filed a motion to dismiss for lack of

personal jurisdiction and improper venue; in the alternative, Defendants request this case be

transferred to the District of Arizona.' Mot. Dismiss [#5] at

1.

The parties have fully briefed the

motion, and it is now ripe for the Court's consideration.

Though Bell filed an amended complaint after Defendants filed their motion to dismiss, the amended
complaint does not render the motion to dismiss moot. See Am. Compl. [#10]. Whether the filing of an amended
complaint renders a motion to dismiss moot is discretionary. See, e.g., Rodriguez v. Xerox Business Sols., LLC, No.
EP-16-CV-41-DB, 2016 WL 8674378, at *1 (W.D. Tex. June 16, 2016) ("A plaintiffs filing of an amended
complaint may render moot a pending motion to dismiss.") (emphasis added). The amended complaint does not add
new parties or claims, but simply elaborates on the factual allegations contained in the original complaint. Moreover,
the parties' conduct since the amended complaint has been filed suggests they do not believe the amended complaint
rendered the motion to dismiss moot. Bell filed his amended complaint on the same day he filed his response to the
motion to dismiss, and Defendants have since filed a reply in support of their motion to dismiss.
3

Analysis
I.

Personal Jurisdiction
Defendants move to dismiss Bell's complaint based on lack of personal jurisdiction under

Federal Rule of Civil Procedure

1

2(b)(2). To determine whether a federal district court has

personal jurisdiction over a nonresident defendant, the court considers first whether exercising

jurisdiction over the defendant comports with due process. Religious Tech. Ctr.

v.

Liebreich, 339

F.3d 369, 373 (5th Cir. 2003). If the requirements of due process are satisfied, the court then

determines whether the exercise of jurisdiction is authorized by the jurisdictional "long-arm"

statute of the state in which the court sits. Id. Because the Texas long-arm statute has been
interpreted as extending to the limit of due process, the two inquiries are the same for district
courts in Texas. Id.; see also TEx.

Civ. PRAC.

& REM. CODE § 17.001.093.

The Due Process Clause requires a nonresident defendant be properly subject to the

personal jurisdiction of the court in which the defendant is sued. World-Wide Volkswagen Corp.
v.

Woodson, 444 U.S. 286, 291 (1980). The Supreme Court has articulated a two-pronged test to

determine whether a federal court may properly exercise jurisdiction over a nonresident

defendant: (1) the nonresident must have minimum contacts with the forum state, and
(2) subjecting the nonresident to jurisdiction must be consistent with "traditional notions of fair

play and substantial justice." Int'l Shoe Co.

v.

Washington, 326 U.S. 310, 316 (1945);

Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327, 343 (5th Cir. 2004).
A defendant's "minimum contacts" may give rise to either general personal jurisdiction

or specific personal jurisdiction, depending on the nature of the suit and the defendant's

relationship to the forum state. Freudensprung, 379 F.3d at 343. A court exercises general

jurisdiction over the defendant if the defendant has "continuous and systematic contacts" with

the forum, regardless of whether those contacts are related to the cause of action asserted in the
case. Id. Specific jurisdiction, by contrast, is based on the proposition "that 'the commission of

some single or occasional acts of the [defendant] in a state' may sometimes be enough to subject

the [defendant] to jurisdiction in that State's tribunals with respect to suits relating to that in-state

activity." Daimler AG

v.

Bauman, 134 5. Ct. 746, 754 (2014) (quoting Int'l Shoe, 326 U.S. at

318).

The plaintiff has the burden of making a prima facie case by showing a defendant has
sufficient "minimum contacts" with the forum state to justify the state's exercise of either
specific or general jurisdiction. Freudensprung, 379 F.3d at 343. If the plaintiff does so, the
burden shifts to the defendant to show such an exercise offends due process because it is not
consistent with traditional notions of fair play and substantial justice. Id. Finally, when a court
rules on a

1

2(b)(2) motion to dismiss for lack of personal jurisdiction without holding an

evidentiary hearing, it must accept the non-moving party's jurisdictional allegations as true and
resolve all factual disputes in its favor. Guidry

v.

US. Tobacco Co., 188 F.3d 619, 625 (5th Cir.

1999).

Because "[e]ach defendant's contacts with the forum State must be assessed
individually," Calder

v.

Jones, 465 U.S. 783, 790 (1984), the Court addresses Bell's claims

against the Moawad Group and Trevor Moawad in turn.
A.

The Moawad Group
Bell advances two reasons in support of the Court's exercise of jurisdiction over the

Moawad Group. First, the crux of Bell's allegation is that the Moawad Group posted an allegedly
infringing image on Facebook, Instagram, and Twitter, and at least some of its followers on
social media live in Texas. Second, Bell points to the Moawad Group's "long-standing and close

5

business relationship" with Texas-based MJP. The Court analyzes these allegations to determine
whether they support either general or specific jurisdiction over the Moawad Group.
1.

General Jurisdiction

To constitute continuous and systematic contacts sufficient to establish general

jurisdiction, a defendant must be "at home" in the forum state. Daimler AG, 134 S. Ct. at 760.
The Supreme Court has held a corporation is "at home" in the state of incorporation and
principal place of business. Id. "It is, therefore, incredibly difficult to establish general

jurisdiction in a forum other than the place of incorporation or principal place of business."
Monkton ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014) (citing Daimler AG, 134 S.
Ct. at 760).

The Moawad Group is incorporated under Arizona law and its principal place of business
is in Arizona. Its sole managing member is Trevor Moawad, who resides in Arizona. Thus, for

general jurisdiction to exist over the Moawad Group, it must fit into a "small, undefined category

of other situations in which a foreign corporation is nonetheless 'essentially at home' in a
forum." Gonzalez v. SeadrillAmericas, Inc., No. 3:12-CV-00308, 2014 WL 2932241, at *3 (S.D.
Tex. June 27, 2014). There is no evidence the Moawad Group maintains employees in Texas,

owns real estate in Texas, or pays taxes in Texas. The simple fact that the Moawad Group posted
an allegedly infringing image on its social media accounts, which was accessed in Texas, does

not support a finding of general jurisdiction. See, e.g., Revell

v.

Lidov, 317 F.3d 467, 471 (5th

Cir. 2002) ("Though the maintenance of a website is, in a sense, a continuous presence

everywhere in the word, the cited contacts of [the defendant] with Texas are not in any way

'substantial."); Britton

v.

City of Dubuque, No. A-15-CV-0033-LY-ML, 2015 WL 2384397, at

*6 (W.D. Tex. May 18, 2015) ("A showing that a defendant operates websites that can be

accessed in Texas (as well as any other State) is insufficient to establish a 'substantial' presence
in Texas."). Moreover, the Moawad Group's occasional work with MJP over the last few years is

insufficient to constitute "continuous and systematic" contacts with the state. Because Bell has
failed to make a prima facie showing that the Moawad Group is "at home" in Texas, this Court
lacks general jurisdiction over the Moawad Group.
2.

Specific Jurisdiction

In the Fifth Circuit, courts generally look to three factors in analyzing specific

jurisdiction: "(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." McFadin v. Gerber, 587 F.3d 753, 759 (5th Cir. 2009).
A court may exercise specific jurisdiction over a nonresident defendant who

"purposefully avails itself of the privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws." Electrosource, Inc.

v.

Horizon Battery

Techns., Ltd., 176 F.3d 867, 871 (5th Cir. 1999) (internal citation omitted). The purposeful

availment requirement "ensures that a defendant will not be haled into a jurisdiction solely as a

result of random, fortuitous, or attenuated contacts, or of the 'unilateral activity of another party
or a third person." Id. (internal quotation nd citation omitted).

The gravamen of Bell's argument for specific jurisdiction is that the Moawad Group
purposefully availed itself of the privileges of conducting business in Texas by posting the
allegedly infringing image on its social media accounts, which are followed by at least some
Texas residents. The parties agree two tests are relevant to the inquiry of whether the Moawad

7

Group purposefully availed itself of the benefits of conducting activity in Texas: the "sliding

scale" test first articulated in Zippo Manufacturing Company

v.

Zippo Dot Corn., Inc., 952 F.

Supp. 1119 (W.D. Pa. 1997), and the "effects" test established in Calder.
In Mink v. AAAA Development LLC, the Fifth Circuit expressly adopted the "sliding

scale" test to determine whether the operation of an website can support minimum contacts with

the forum state necessary for the exercise of personal jurisdiction. 190 F.3d 333, 336 (5th Cir.
1999). It explained the "sliding scale" test in Revell by stating:

A "passive" website, one that merely allows the owner to post information on the
internet, is at one end of the scale. It will not be sufficient to establish personal
jurisdiction. At the other end are sites whose owners engage in repeated online
contacts with forum residents over the internet, and in these cases personal
jurisdiction may be proper. In between are those sites with some interactive
elements, through which a site allows for bilateral information exchange with its
visitors. Here, we find more familiar terrain, requiring that we examine the extent
of the interactivity and nature of the forum contacts.
317 F.3d at 470 (citing Mink, 190 F.3d at 336).

Thus, the relevant inquiry is the degree to which the Moawad Group's social media

accounts are interactive. In Mink, the Fifth Circuit concluded the website would not support a
finding of minimum contacts because it only solicited customers and provided contact
information, including a toll-free number and an e-mail address. 190 F.3d at 337. It did not allow

visitors to place orders online. Id. The Fifth Circuit distinguished the website in Mink from the

"bulletin board" website in Revell, which permitted individuals to send and receive information
that others posted. 317 F.3d at 471. Because a visitor could participate in an open forum hosted

by the website, the Fifth Circuit concluded the bulletin board was interactive, and the court was
therefore tasked with "examin{ing] the extent of interactivity and nature of the forum contacts."
Id. at 470, 472.

In this case, the Moawad Group's social media accounts are not "open forums" where

any internet user can post material on these accounts. Nevertheless, these accounts permit some
level of interaction between the Moawad Group and its followers. As Bell points out, "[u]sers of

Defendants' Facebook, Twitter, and Instagram pages can and do use the pages to share, like, and
send Defendants' comments on the material Defendants regularly post to promote their

services[.]" Resp. [#11] at 15. At minimum, the Moawad Group's social media accounts fall
somewhere "[i]n between" passive and wholly interactive sites. The Court must therefore

examine the extent of the interactivity and the nature of the forum contacts, and in doing so,
consider the parties' arguments regarding the "effects" test.
Bell argues "[t]he Calder 'effects' framework evidences that Defendants purposefully

availed themselves of Texas law and privileges." Resp. [#11] at 13. But the Moawad Group
maintains the Fifth Circuit has limited the "effects" test "solely to libel/defamation claims or

intentional and unintentional torts that caused death or serious physical harm to the Plaintiff in
the forum state." Mot. Dismiss [#5] at 10 (citing Guidry v. US. Tobacco Co., 188 F.3d 619, 62930 (5th Cir. 1999)). In Guidry, the Fifth Circuit held the "effects" test was not intended to be

limited to defamation cases. Guidry, 188 F.3d at 629. The Guidry court, presented with claims
involving death or serious harm, concluded "the 'effects' test of intentional and nonintentional
torts causing death or serious physical harm are as 'pronounced' as the merely economic and

emotional consequences of libel." Id. at 629. Contrary to the Moawad Group's construction, the
Court does not read Guidry's extension of the "effects" test to torts involving serious harm or

death as a limitation on the test's applicability to claims for copyright infringement. Indeed,
district courts in this circuit have applied the Calder "effects" test to copyright infringement

claims. See, e.g., Illustro Sys. Intern., LLC

v.

Int'l Bus. Machs. Corp., No. 3:06-CV-1969-L,

2007 WL 1321825, at *8_9 (N.D. Tex. May 4, 2007); Isbell v. DMRecords, Inc., No. 3:02-CV1408-G, 2004 WL 1243153, at *10 (N.D. Tex. June 4, 2004) (collecting cases).

In Calder, the Supreme Court upheld personal jurisdiction over a Florida-based reporter
and editor of a Florida-based magazine in a libel suit brought by a California plaintiff in

California. 465 U.S. at 791. The Supreme Court held the exercise of personal jurisdiction was

proper because the defendants had knowingly engaged in tortious activity outside the state that
had an effect in the forum state. Id. at 790. The Supreme Court reasoned that, because the

defendants committed an intentional tort, knowing it would have a potentially devastating impact
upon the plaintiff; and knowing that the plaintiff would be primarily injured in the state in which
she lived and worked, and in which the magazine had its largest circulation, the defendants

"must reasonably anticipate being haled in court there to answer for the truth of the statements
made in their article." Id. at 789 (internal quotation omitted).
The Court finds Defendants could not reasonably anticipate being haled into court in
Texas by posting the allegedly infringing image on their social media accounts. Though Bell
argues the Moawad Group's actions were directed at Texas because at least some of their

followers reside in Texas, he points to no evidence to suggest these posts were in any way
directed to Texas, specifically curated for a Texas audience, or that the Moawad Group knew
Bell resided in Texas. See, e.g., Frees, Inc.

v.

McMillian, No. 05-1979, 2007 WL 2701161, at *3

(W.D. La. Sept. 7, 2007) (finding personal jurisdiction over a corporation in a copyright

infringement case where the corporation's agent "would have been well aware that [the plaintiff]
was a Louisiana corporation"); Johnson

v. Tuff N Rumble

Mgmt., Inc., No. 99-1374, 1999 WL

1201891, at *5 (E.D. La. Dec. 15, 1999) (applying the "effects" test to a copyright infringement

case where the defendant resided in another state, and concluding "specific jurisdiction exists

10

over [the defendant] in this district because [the defendant] intentionally aimed its conduct at
Louisiana, knowing plaintiffs would feel the brunt of the injury here"); Sec. Alarm Financing

Enter,, L.P.

v.

Nebel, 200 F. Supp. 3d 976, 985 (N.D. Cal. 2016) (concluding the defendant's

social media posts were insufficient to establish personal jurisdiction where the plaintiff offered
no evidence that the defendant's posts "were in any way directed or targeted at California or a

California audience"). Though Bell alleges a Texas resident independently "shared" the image

the Moawad Group posted, such "random, fortuitous, or attenuated contacts, or

[]

the unilateral

activity of another party or a third person" do not pass muster under the purposeful availment
requirement. See Electrosource, Inc., 176 F.3d at 871.

Nevertheless, the Court is mindful that "the 'effects' test is but one facet of the ordinary
minimum contacts analysis, to be considered as part of the full range of the defendant's contacts
with the forum." Revell, 317 F.3d at 473. Indeed, the Fifth Circuit has recognized that "[e]ven a
single, substantial act directed towards the forum can support specific jurisdiction." Dalton

v.

R

& WMarine, Inc., 897 F.2d 1359, 1361 (5th Cir. 1990). Bell contends the Moawad Group has

minimum contacts with Texas because it has provided occasional consulting services for MJP
over the past several years. Even assuming these allegations are sufficient to support a finding
that the Moawad Group purposefully directed its activities toward Texas in working with MJP,
the Court must still determine whether the present controversy arises out of and is related to the

Moawad Group's activity in Texas.
To establish personal jurisdiction over a nonresident defendant, a plaintiff must also show
his cause of action arises out of or results from the defendant's forum-related contacts. See

Gerber, 587 F.3d at 759. On this front, Bell's amended complaint falls far short of establishing a

prima facie case for personal jurisdiction. There is no allegation or evidence in the record that the

11

present controversy arose from the Moawad Group's occasional work with MJP. Because Bell
failed to demonstrate the nexus between the Moawad Group's contacts with Texas and his cause

of action, the Court need not reach the question of whether exercising jurisdiction would be
unfair or unreasonable.
B.

Trevor Moawad
Bell's jurisdictional allegations as to Trevor Moawad in his individual capacity fall into

two general categories. First, Bell alleges that Trevor Moawad, as a member of the Moawad
Group, is subject to personal jurisdiction because of the actions he took in Texas while acting as
a corporate officer for the Moawad Group, including his work with Texas-based MJP and his

involvement in the Moawad Group's social media accounts. Trevor Moawad maintains,
however, that the "fiduciary shield" doctrine should apply to prevent the attribution of the

Moawad Group's contacts with Texas to him. Second, Bell alleges Trevor Moawad is subject to

jurisdiction because of the actions he took in Texas prior to the Moawad Group's formation,
including (1) his work as a sports psychologist for the Texas A&M women's soccer team

between 2002 and 2006; (2) his travel to Texas with the University of Alabama football team in
2012; and (3) his travel to Austin, Texas in 2013 to speak at a South by Southwest panel.
1.

Fiduciary Shield Doctrine

Trevor Moawad invokes the fiduciary shield doctrine to defeat Bell's first category of

jurisdictional allegations. Under the fiduciary shield doctrine, an "individual's transaction of
business within the state solely as a corporate officer does not create personal jurisdiction over
that individual though the state has in personam jurisdiction over the corporation." Stuart

v.

Spademan, 772 F.2d 1185, 1197 (5th Cir. 1985). Put another way, "jurisdiction over an

individual cannot be predicated upon jurisdiction over a corporation." Lehigh Valley Indus., Inc.

12

v.

Birenbaum, 389 F. Supp. 798, 803-04 (S.D.N.Y. 1975). Though the general rule is that

jurisdiction over a corporate officer cannot be predicated on the defendant's contacts as a
corporate representative, the Fifth Circuit has recognized two exceptions to the fiduciary shield
doctrine. First, a court may disregard the corporate form and exercise jurisdiction over an

individual officer if the corporation is the "alter ego" of the

Patin

v.

officer.2

Stuart, 772 F.2d at 1197;

Thoroughbred Power Boats, Inc., 294 F.3d 640, 653 (5th Cir. 2002) ("The theory

underlying these cases is that, because the two corporations (or the corporation and its individual
alter ego) are the same entity, the jurisdictional contacts of the one are the jurisdictional contacts

of the other for the purposes of the International Shoe due process analysis."). Second, a court
may exercise personal jurisdiction over an officer who allegedly committed an intentional tort
directed at the forum state. See, e.g., Gen. Retail Sen's., Inc.

v.

Wireless Toyz Franchise, LLC,

255 F. App'x 775, 795 (5th Cir. 2007); see also Lewis v. Indian Springs Land Corp., 175 S.W.3d

906, 917 (Tex.

App.Dallas 2005, no pet.) ("[C]orporate officers are not shielded from exercise

of specific jurisdiction for fraudulent or tortious acts for which they may be liable.")
Bell argues both exceptions apply. As to the alter ego exception, Bell maintains the

Moawad Group website "almost exclusively" promotes Trevor Moawad and the contact page on
the Moawad Group advises interested parties to contact "Trevor Moawad o[r] the Moawad
Consulting Group" for more

information.3

Resp. [#11] at 9-10. In Stuart, the Fifth Circuit

2

In determining whether a corporation is the alter ego of an individual officer, courts consider the
following factors: whether "(1) the corporation is undercapitalized, (2) without separate books, (3) its finances are
not kept separate from individual fmances, individual obligations are paid by the corporation, (4) the corporation is
used to promote fraud or illegality, (5) corporate formalities are not followed or (6) the corporation is merely a
sham." Stuart, 772 F.2d at 1197 (quoting Lakota Girl Scout Council, Inc. v. Havey Fund-Raising Mgmt., Inc., 519
F.2d 634 (8th Cir. 1975)).
In support of his alter ego argument, Bell points to Texas-based MJP's website which lists "Trevor
Moawad," rather than the Moawad Group, as part of MJP's staff. Resp. [#111 at 10. But MJP's decision to highlight
Trevor Moawad's services does not speak to whether Trevor Moawad's services are offered on behalf of the
Moawad Group.
13

rejected the plaintiff's alter ego argument where the plaintiff simply alleged trade magazine

advertisements in Texas made no reference to the corporate entity, but instead focused entirely
on the individual's services as an orthopedic surgeon. 772 F.2d ati 198. Even though the

plaintiff's allegations revealed a "blurring of the distinction between [the defendant's] actions in
his individual capacity and the actions of [the corporate entity]," the court nevertheless

concluded the plaintiff had failed to demonstrate the corporation was the alter ego of the

plaintiff Id. Like the plaintiff in Stuart, Bell has failed to provide any evidence to establish the
presence of the six alter ego factors, including whether the company's finances are comingled
with Trevor Moawad' s finances or whether the company is merely a "sham." In fact, the record

evidence suggests otherwise. Given the Fifth Circuit's guidance in Stuart, the Court cannot
conclude Bell's minimal factual allegations and conclusory assertions are sufficient to show the
Moawad Group is a façade for Bell's interests and activities.
In the alternative, Bell argues the intentional tort exception applies because Trevor

Moawad "directly participated in the willful infringement" of his copyright. Resp. [#11] at 9. But

Bell's conclusory allegations of willfulness are insufficient to establish the intentional tort
exception to the fiduciary shield doctrine applies. Nevertheless, were the Court to entertain

Bell's argumentand therefore impute the Moawad Group's contacts with Texas to Trevor

Moawadthe Court would

still find these contacts, when considered in conjunction with Trevor

Moawad's other contacts with Texas, are insufficient to justify the exercise of either general or
specific personal jurisdiction over him.
2.

General Jurisdiction

Bell alleges Trevor Moawad "regularly solicit[s] and conduct[s] business in the state of
Texas, and [he] maintains a continuous presence in the state of Texas through long-standing and

14

ongoing business relationships." Am. Compi. [#10] ¶ 7. However, it is clear Trevor Moawad has
not engage in "continuous and systematic" activity in Texas to justify the exercise of general

jurisdiction. Trevor Moawad is a resident of Arizona, and there is no evidence Trevor Moawad
has ever lived in Texas, owned real estate in Texas, conducted regular business in Texas, or
traveled to Texas for recreation. Bell points to a period of time between 2002 and 2006 when

Trevor Moawad worked with the Texas A&M women's soccer team. But even if Trevor

Moawad's maintained a substantial presence in Texas while working with the Texas-based
organization, this four-year stint in Texas falls far short of establishing "continuous" contacts to

justify the exercise of personal jurisdiction some eleven years later. As for Bell's allegations
regarding Trevor Moawad's sporadic trips to Texas and his occasional work for Texas-based
MJP, these contacts are not substantial enough to warrant the imposition of general personal

jurisdiction over Trevor Moawad.

See, e.g., Wilson

v.

Belin,

20 F.3d 644, 651 (5th Cir. 1994)

(concluding that even if the defendant's contacts with Texas were arguably continuous, where

they spanned multiple years, they were not substantial enough to subject the defendant to suit in
a distant forum with which he had little connection). Finally, as for Bell's allegation that Trevor

Moawad, acting through the Moawad Group's social media accounts, directed his activities to
Texas by posting the allegedly infringing image, the Court has already concluded that this
allegation is insufficient to support a finding of general jurisdiction.

See supra

Section l.A. 1. The

Court therefore finds these allegations, taken together, do not amount to a prima facie showing of
general jurisdiction.
3.

Specific Jurisdiction

Whether this Court can exercise jurisdiction over Trevor Moawad depends on whether he
has purposely directed activities toward Texas or purposely availed himself of the privileges of

15

conducting activities there. Bell's allegations make clear that Trevor Moawad deliberately

engaged in activities in Texas by traveling to Texas to transact business and promote his

consulting services.
Nevertheless, Bell's cause of action does not arise out of Trevor Moawad's forum-related
contacts. Bell alleges that Trevor Moawad, acting through or in conjunction with the Moawad
Group, violated Bell's copyright in Winning Isn't Normal by posting a 219-word excerpt from

the book on the Moawad Group's social media accounts. Bell does not allege Trevor Moawad

posted the image because of the occasional business he conducts in Texas, nor has he shown the
image was posted to target Texas or wasa specifically tailored for a Texas audience. It is the

plaintiffs burden to prove facts necessary to support the existence of jurisdiction. Applewhite

v.

Metro Aviation, Inc., 875 F.2d 491, 494 (5th Cir. 1989). Bell has failed to carry his burden in this
case. Because the Court finds Trevor Moawad does not have sufficient minimum contacts with

Texas, the Court need not discuss the fairness prong of the due process

II.

analysis.4

Venue
Even if a court lacks personal jurisdiction over a defendant, it may nonetheless transfer

the case to "any district or division in which it could have been brought" if that transfer is "in the

interest of justice." See Herman
28 U.S.C.

§

v.

Cataphora, Inc., 730 F.3d 460, 466 (5th Cir. 2013) (quoting

1406(a)). Section 1406(a) specifically applies when an action "lay[s] venue in the

Bell requests that, in the event the Court finds Bell's arguments and evidence insufficient to establish
personal jurisdiction over Defendants, the Court grant Bell leave to conduct limited jurisdictional discovery. Mot.
Discovery [#13]. For the Court to grant jurisdictional discovery, a plaintiff must make "a preliminary showing of
jurisdiction" through "factual allegations that suggest with reasonable particularity the possible existence of the
requisite contacts." Fielding v. Hubert Burda Media, Inc., 415 F.3d 419, 429 (5th Cir. 2005) (quoting Toys "R" Us,
Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003)). "[D]iscovery on matters ofpersonaljurisdiction. . . need
not be permitted unless the motion to dismiss raises issues of fact. When the lack of personal jurisdiction is clear,
discovery would serve no purpose and should not be permitted." Kelly v. Syria Shell Petroleum Dcv. B. V., 213 F.3d
841, 855 (5th Cir. 2000) (internal quotation and citation omitted). Bell's motion does not raise a fact issue that could
be solved through further discovery. It is clear from Bell's initial showing that further information on Defendants'
contacts with Texas would not strengthen his assertion of specific jurisdiction, because to the extent Defendants
purposely availed themselves of the forum, Bell's claims simply do not arise from Defendants' minimum contacts in
Texas.

16

wrong division or district." 28 U.S.C.

§

1406(a). Venue is laid in the wrong division when the

court lacks personal jurisdiction to hear the case. See 28 u.s.c.

§

1391 (b)( 1 )(3)

The decision to dismiss or transfer a case under § 1406(a) lies within the discretion of the
Court. See In re Volkswagen of Am., Inc., 545 F.3d 304, 311 (5th cir. 2008) (en banc)
(Volkswagen II). Courts consider a number of factors in making this decision, including whether

the transfer saves time, energy, and money and the degree to which transfer is more convenient
and economical for litigants, witnesses, and the public. See, e.g., Autoflex Leasing-Dallas I, LLC
v.

Autoflex LLC, No. 3:16-CV-2589-D, 2017 WL 713667, at *5_6 (N.D. Tex. Feb. 23, 2017).

Courts generally "favor transfer over dismissal." Scott

v.

US. Army, No. EP-07-CA-328-FM,

2008 WL 3914835, at *1 (W.D. Tex. June 30, 2008).
Transfer, rather than dismissal, is proper in this case. As noted, Defendants live or are

incorporated in Arizona, regularly conduct business in Arizona, and the events giving rise to

Bell's claims occurred in Arizona. The transfer facilitates a more expeditious resolution of the
case and saves both the parties and the judiciary time and money. The Arizona district court can

exercise personal jurisdiction over Defendants, and venue is proper in Arizona. See 28 U.S.C.
§

1391(b)(1)(3) (stating venue is proper in a district where (1) the defendant resides, (2) a

substantial part of the events giving rise to the claim occurred, or (3) a court can exercise
personal jurisdiction over the defendant). The Court therefore transfers this case to the District of
Arizona.

Conclusion
Accordingly,
IT IS ORDERED that Defendants' Motion to Dismiss for Lack of Personal

Jurisdiction [#5] is GRANTED;

17

IT IS FURTHER ORDERED that Plaintiff's Motion for Limited Jurisdictional

Discovery [#13] is DENIED; and
IT IS FINALLY ORDERED that this case is TRANSFERRED to the District of

Arizona.
SIGNED this the

30

day of June 2017.

UNITED STATES DISTRICT JUDGE

IL