Linton v. Johnson et al

Filing 32

REPORT AND RECOMMENDATIONS that the 2 Motion to Dismiss/Lack of Jurisdiction filed by Douglas L Johnson, Johnson & Johnson, LLP and 29 Motion to Dismiss filed by Nancy Lee Grahn should be GRANTED. Signed by Judge Nancy Stein Nowak. (Served by certified mail or electronic transmittal) (tm)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

JOHN LINTON
Plaintiff,
v.

DOUGLAS L. JOHNSON,
JOHNSON & JOHNSON, LLP,
and NANCY LEE GRAHN,
Defendants.

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CIVIL ACTION NO.
5-10-CV-00585 OG (NN)

REPORT AND RECOMMENDATION
TO:

Honorable Orlando L. Garcia
United States District Judge
Pursuant to the Order of referral of the above styled and numbered cause of

action to the undersigned United States Magistrate Judge1 and consistent with the
authority vested in United States Magistrate Judges under the provisions of 28 U.S.C. §
636(b)(1)(B) and Rule 1(d) of the Local Rules for the Assignment of Duties to United
States Magistrate Judges in the Western District of Texas, this report addresses the

1

Docket entry # 5.

pending motions to dismiss for lack of personal jurisdiction.2 This my second report in
this case. The first report addressed the motion to remand this case to state court.3 The
district court accepted the first recommendation and denied plaintiff John Linton’s
motion to remand.4 In this report, I recommend granting the motions to dismiss for
lack of personal jurisdiction and dismissing this case.
Nature of the case. In the case before the court, defendants Douglas L. Johnson
and Johnson & Johnson, L.L.P. (the Johnson defendants) represent two separate clients
in two California state cases. The first case is the Armuth case, in which Linton is a
defendant. The Johnson defendants represent Jo Armuth. The second case is the Grahn
case. In that case, the Johnson defendants represent Nancy Lee Grahn. Linton is not a
party to the Grahn case, but is financially tied to the business entities sued in the Grahn
case.5 Grahn is named as a defendant in the case before the court.
The Johnson defendants and Grahn reside in California. Johnson & Johnson,

2

Docket entry #s 2 & 29.

3

Docket entry # 21.

4

Docket entry # 28.

5

Although, the record in this case contains little information about the California
lawsuits, the complaint in Cause No. SA-11-CV-019-OG details the allegations in the
Armuth and Grahn lawsuits. In Cause No. SA-11-CV-019-OG, Maxum Indemnity
Company seeks declaratory judgment that it has no duty to defend Linton or business
entities sued in the state-court lawsuits. Maxum also asked the district court to rescind
the applicable insurance policies based on alleged material misrepresentations.
2

L.L.P. is a limited liability partnership formed and existing under the laws of California.
It does not maintain a regular place of business in Texas, nor does it conduct business in
Texas. It does not have a person or agent appointed in Texas for service of process.
Grahn is an actress. She hired Johnson & Johnson, L.L.P. to sue several business entities
for the unauthorized use of her likeness to sell a skin care product. Linton is an equity
holder and/or director of the sued business entities.
Linton filed this case in Texas state court, asserting jurisdiction based upon
telephone calls and emails between himself and the Johnson defendants concerning the
Grahn lawsuit. Linton allegedly received the communications in Texas. Linton
identified no communications between himself and Grahn.
The Johnson defendants moved to dismiss the case for lack of personal
jurisdiction and failure to state a claim, and to transfer venue.6 Since that time, Grahn
answered and likewise moved to dismiss for lack of personal jurisdiction.7 Both
motions advanced the same essential arguments, except Grahn also complained about
insufficient service of process. This report addresses the question of personal
jurisdiction as to all defendants.
Applicable standards. In a diversity case such as this one, a federal court may

6

Docket entry # 2.

7

Docket entry # 29.
3

exercise jurisdiction over a nonresident defendant to the extent allowed under state
law.8 The Texas long-arm statute provides protection equivalent to that provided by
the United States Constitution, and therefore, the question before the court is whether
the exercise of personal jurisdiction over the defendants would offend the Due Process
Clause of the Fourteenth Amendment.9 This is a question of law.10
The Due Process Clause permits courts to exercise personal jurisdiction over a
nonresident defendant when (1) the defendant purposefully availed himself of the
benefits and protections of the forum state by establishing “minimum contacts” with the
forum state and (2) the exercise of jurisdiction over the defendant does not offend
traditional notions of fair play and substantial justice.11 The defendant’s conduct and
connection with the forum state must be such that it is reasonable to anticipate being
hauled into court in the forum state.12
“Minimum contacts” may be established sufficient for a court to assert either
general or specific jurisdiction. Specific jurisdiction is appropriate where the defendant

8

See Alpine View Co. Ltd. v. Atlas Copco A.B., 205 F.3d 208, 214 (5th Cir. 2000).

9

Id. at 215; Ruston Gas Turbines v. Donaldson Co., 9 F.3d 415, 418 (5th Cir. 1993).

10

Ruston Gas Turbines, 9 F.3d at 418.

11

Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Alpine View Co., 205 F.3d at

12

Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 777 (5th Cir. 1986).

215.

4

purposefully directed its activities at the forum state and the “litigation results from the
alleged injuries that ‘arise out of or relate to’ those activities.”13 To exercise specific
jurisdiction, the court must examine the relationship among the defendants, the forum,
and the litigation to determine whether maintaining the suit will offend traditional
notions of fair play and substantial justice.14 In the absence of specific jurisdiction, the
court may exercise general jurisdiction based on a defendant’s contacts with the forum
unrelated to the controversy.15
To exercise general jurisdiction, the court must determine whether the
defendant’s “contacts are sufficiently systematic and continuous to support a reasonable
exercise of jurisdiction.”16 The contacts must show the defendant purposefully availed
itself of the privileges and protections of the forum’s law, so as to subject itself to
jurisdiction there.17 “General jurisdiction can be assessed by evaluating contacts of the
defendant with the forum over a reasonable number of years, up to the date the suit

13

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (citing Helicopteros
Nacionales de Columbia S.A. v. Hall, 466 U.S. 408, 414 (1984)).
14

Shaffer v. Heitner, 433 U.S. 186, 204 (1977).

15

Helicopteros Nacionales de Columbia S.A. v. Hall, 466 U.S. 408, 414 (1984).

16

Harvey, 801 F.2d at 777 (citations omitted).

17

Burger King, 471 U.S. at 475; Hanson v. Denckla, 357 U.S. 235, 253 (1958).
5

was filed.”18 For general jurisdiction purposes, the court does not view each contact in
isolation, but instead carefully investigates, compiles, sorts, and analyzes the
defendant’s contacts for proof of a pattern of continuing and systematic activity.19 The
court is not concerned with the quantity of contacts, but rather with the nature and
quality of those contacts.20
Where, as here, the court resolves the issue without an evidentiary hearing, the
party asserting jurisdiction (in this case, Linton) need only present sufficient facts to
establish a prima facie case in support of jurisdiction.21 The party’s uncontroverted
allegations are to be accepted as true and all conflicts between the facts contained in
affidavits and other documentation are likewise to be resolved in the party’s favor.22

18

Access Telecom v. MCI Telecommunications Corp., 197 F.3d 694, 717 (5th Cir. 1999);
Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569–70 (2d Cir. 1996) (“In general
jurisdiction cases, district courts should examine a defendant’s contacts with the forum
state over a period that is reasonable under the circumstances up to and including the
date the suit was filed to assess whether they satisfy the ‘continuous and systematic’
standard; the determination of what period is reasonable in the context of each case
should be left to the court’s discretion.”).
19

Access Telecom, 197 F.3d at 717 (faulting the district court because it did not
examine the nonresident defendant’s contacts with the forum state “in toto”).
20

Prejean v. Sonatrach, 652 F.2d 1260, 1265 n.4 (5th Cir. 1981); Am. Type Culture
Collection v. Coleman, 83 S.W.3d 801, 805–07 (Tex. 2002); Schlobohm v. Shapiro, 784 S.W.2d
355, 359 (Tex. 1990).
21

Alpine View Co., 205 F.3d at 215.

22

Id.
6

Linton failed to make a prima facie case of specific jurisdiction. According to
Linton, the court should exercise jurisdiction over defendant because the “[d]efendants
directed a serious, purposeful and extensive set of communications to Texas, to engage
in business transactions with a Texas domiciliary.”23 Neither Texas courts nor the
United States Supreme Court have “given much guidance as to how closely related a
cause of action must be to the defendant’s forum activities to support personal
jurisdiction.”24 “[F]or a nonresident defendant’s forum contacts to support an exercise of
specific jurisdiction, there must be a substantial connection between those contacts and
the operative facts of the litigation.”25 In essence, “even a single purposeful contact may
in a proper case be sufficient to meet the requirement of minimum contacts when the
cause of action arises from the contact.”26 To exercise specific jurisdiction, the court
must examine the relationship between the defendant, the forum, and the litigation.
Linton claims the Johnson defendants committed acts outside of Texas that
caused tortious injury within Texas that amount to sufficient minimum contacts to
exercise personal jurisdiction.27 “[W]hen an alleged tort-feasor’s intentional actions are
23

Docket entry # 3.

24

Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 579 (Tex. 2007).

25

Id. at 583.

26

Southmark v. Life Investors, 851 F.2d 763, 772 (5th Cir. 1988).

27

Docket entry # 3.
7

expressly aimed at the forum state, and the tort-feasor knows that the brunt of the
injury will be felt by a particular resident in the forum, the tort-feasor must reasonably
anticipate being hauled into court there to answer for its tortious actions.”28 As tortious
acts, Linton maintains the Johnson defendants violated standards of professional
conduct by communicating with him in Texas and thereby subjected themselves to the
jurisdiction of Texas courts.
Instead of focusing on where a defendant directed a tort or where the effects of
alleged tortious conduct will be felt, courts analyze the degree of connectedness
between the forum contacts and the litigation to determine whether the operative facts
of the litigation focus on those contacts.29 Linton complains that the Johnson defendants
“directed an extensive series of tortious communications to a Texas domiciliary not
party to the lawsuit in question or a represented party without first speaking to or
obtaining permission from counsel for that party in violation of both the California and
Texas rules of professional conduct.”30 Even if these allegations are true, a violation of
the Texas Rules of Professional Conduct does not automatically confer personal

28

Southmark, 851 F.2d. at 772.

29

Markette v. X-Ray X-Press, 240 S.W.3d 464, 469 (Tex. App.—Houston [14th Dist.]
2007, no pet.).
30

Docket entry # 3.
8

jurisdiction over an attorney-defendant.31 When examining the relationship among the
defendant, the forum, and this litigation, along with the “contacts” in dispute, it is hard
to find a substantial connection to Texas. The Johnston defendants’ alleged conduct is
substantially connected to the California litigation, because resolving the California
litigation formed the basis and motivation of the communications.
Linton complained about 10 telephone calls and 40 emails about settling the
Grahn lawsuit32 and asserted that this lawsuit is his only means to prevent the
defendants from forcing a settlement from business entities sued in the Grahn lawsuit.33
These allegations show that the relied-upon communications were substantially related
to the California litigation—because the communications were aimed at settling the
California litigation. This lawsuit serves as Linton’s means of resisting settlement of the
California litigation. That Linton used the communications as his motivation for this
lawsuit did not transform the communications into contacts aimed at Texas. In any
event, the operative facts of this case stem from the California litigation, not an injury in

31

See Trinity Indus. v. Myers & Assoc., 41 F.3d 229, 232 (5th Cir. 1995) (admitting
violations of professional conduct does not automatically mean minimum contacts
exists, by stating “[a]ssuming minimum contacts exist, as they do herein, a lawyer accused
of violating his or her professional obligations to a client is answerable not only where
the alleged breach occurred but also where the professional obligations attached.”)
(emphasis added).
32

Docket entry # 3, p. 3.

33

Docket entry # 1, Compl. ¶ 8.
9

Texas. Linton’s alleged injury—receipt of a settlement demand in the Grahn lawsuit34
and fear of being named as a defendant in the Grahn lawsuit35—shows connectedness to
California, not Texas. The connectedness of the communications to the California
litigation does not support specific jurisdiction in Texas.36
Linton failed to make a prime facie case of general jurisdiction. For a court to
have general personal jurisdiction, the “minimum contacts” must demonstrate that the
defendant purposefully availed itself of the privileges and protections of the forum’s
law, enough so to subject itself to jurisdiction there.37 Linton claims the Johnston
defendants’ communications establish a prime facie case because the Johnson
defendants purposely availed themselves of the privileges of Texas by causing
consequences in Texas.
Neither the mere existence of an attorney/client relationship between a resident
client and an out-of-state attorney, nor the routine correspondence and interactions

34

Docket entry # 1, Compl. ¶ 12.

35

Id., ¶¶ 13 & 15.

36

Accord Brocail v. Anderson, 132 S.W.3d 552, 563 (Tex. App.–Houston [14th Dist.]
2004, pet. denied) (determining that team doctor’s contacts with Texas were insufficient
to cross the constitutional threshold for jurisdiction, where the plaintiff athlete returned
home to Texas and chose to undergo routine follow-care in Texas).
37

Stuart v. Spademan, 772 F.2d 1185, 1190 (5th Cir. 1985) (citations omitted).
10

attendant to that relationship, are sufficient to confer personal jurisdiction.38 In light of
that rule, it is difficult to see how non-attorney/client communications and relationships
related to the California litigation confer personal jurisdiction in Texas. Beyond the
telephone calls and emails about the California litigation, the defendants did nothing to
purposefully avail themselves of the privileges and protections of Texas law. The
communications were not systematic or continuous. The communications do not show
that the defendants purposefully availed themselves of the privileges and protections of
Texas law. The communications do not support general jurisdiction.
Recommendation. The complained-about telephone calls and emails are
insufficient to establish either specific and personal jurisdiction over any defendant.
Nothing about the communications establish connectedness to Texas. For this reason, I
recommend GRANTING the motions to dismiss (docket entry #s 2 & 29) and
DISMISSING this case for lack of personal jurisdiction over the defendants. Accepting
the recommendation will moot other pending motions. If the district court does not
accept the recommendation, I will consider the defendants’ other arguments for
dismissing the case.
Instructions for Service and Notice of Right to Object/Appeal. The United
States District Clerk shall serve a copy of this report and recommendation on all parties

38

Trinity Indus., 41 F.3d at 230; see also Markette, 240 S.W.3d at 468 n.2.
11

by either (1) electronic transmittal to all parties represented by attorneys registered as a
“filing user” with the clerk of court, or (2) by mailing a copy to those not registered by
certified mail, return receipt requested. Written objections to this report and
recommendation must be filed within 14 days after being served with a copy of same,
unless this time period is modified by the district court.39 Such party shall file the
objections with the clerk of the court, and serve the objections on all other parties and
the magistrate judge. A party filing objections must specifically identify those findings,
conclusions or recommendations to which objections are being made and the basis for
such objections; the district court need not consider frivolous, conclusive or general
objections. A party’s failure to file written objections to the proposed findings,
conclusions and recommendations contained in this report shall bar the party from a de
novo determination by the district court.40 Additionally, failure to file timely written
objections to the proposed findings, conclusions and recommendations contained in this
report and recommendation shall bar the aggrieved party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and

39

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

40

Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuña v. Brown & Root, 200 F.3d 335,
340 (5th Cir. 2000).
12

legal conclusions accepted by the district court.41
SIGNED on May 5, 2011.

_____________________________________
NANCY STEIN NOWAK
UNITED STATES MAGISTRATE JUDGE

41

Acuna, 200 F.3d at 340; Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 142829 (5th Cir. 1996).
13