22nd CENTURY GRAPHIC COMMUNICATIONS, INC., Plaintiff, v. SILVERMAN BERNHEIM VOGEL, P.C., Defendant

NO. 4:01-CV-0777-AUnited States District Court, N.D. Texas.
October 16, 2001

MEMORANDUM OPINION and ORDER
JOHN McBRYDE, District Judge

Came on for consideration the motion of defendant, Silverman Bernheim Vogel, P.C., to dismiss for lack of personal jurisdiction and, in the alternative, to transfer venue. The court, having considered the motion, the response of plaintiff, 22nd Century Graphic Communications, Inc., d/b/a 21st Century Forensic Animations, the record, and applicable authorities, finds that the motion should be denied.

On August 15, 2001, plaintiff filed its original petition in the County Court at Law No. 2 of Tarrant County, Texas. On September 21, 2001, defendant filed its notice of removal, bringing the action before this court. Plaintiff sues for breach of contract, or, in the alternative, forquantum meruit, seeking to recover for animation services it provided to defendant. The services were provided pursuant to a contract that provides, in

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pertinent part: “This agreement is enforceable and executable in the State of Texas, [sic] any disputes arising from this agreement, [sic] shall be bound by the applicable laws of the State of Texas.”

By its motion to dismiss, defendant contends that the court lacks personal jurisdiction over it. Defendant states that it is a law firm incorporated under the laws of the State of Pennsylvania and has its principle place of business in Philadelphia. It claims that its contacts with Texas are not sufficient to subject it to jurisdiction here. In the alternative, defendant asks the court to transfer this action to the United States District Court for the Eastern District of Pennsylvania for the convenience of the parties and in the interest of justice. 28 U.S.C. § 1404 (a).

When a nonresident defendant presents a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that in personam jurisdiction exists. Wilson v.Belin. 20 F.3d 644, 648 (5th Cir.), cert. denied, 513 U.S. 930 (1994); Stuart V. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985); D.J. Investments, Inc. v. Metzeler Motorcycle Tire AgentGregg, Inc., 754 F.2d 542, 545-46 (5th Cir. 1985). The plaintiff need not, however, establish personal jurisdiction by a preponderance of the evidence; prima facie evidence of personal jurisdiction is sufficient. WNS, Inc. v. Farrow, 884 F.2d 200, 203 (5th Cir.

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1989); Wyatt v. Kaplan, 686 F.2d 276, 280 (5th Cir. 1982). The court may resolve a jurisdictional issue by reviewing pleadings, affidavits, interrogatories, depositions, oral testimony, exhibits, any part of the record, and any combination thereof. Command-Aire Corp.v. Ontario Mechanical Sales Serv., Inc., 963 F.2d 90, 95 (5th Cir. 1992). Allegations of the plaintiff’s complaint are taken as true except to the extent that they are contradicted by defendant’s affidavits. Wyatt, 686 F.2d at 282-83 n. 13 (citing Blackv. Acme Markets, Inc., 564 F.2d 681, 683 n. 3 (5th Cir. 1977)). Any genuine, material conflicts between the facts established by the parties’ affidavits and other evidence are resolved in favor of plaintiff for the purposes of determining whether a prima facie case exists.Jones v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061, 1067 (5th Cir.), cert. denied, 506 U.S. 867 (1992);Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990).

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 a forum state, and (2) the exercise of jurisdiction under state law comports with the due process clause of the Fourteenth Amendment. Wilson. 20 F.3d at 646-47; Thompsonv. Chrysler Motors Corp., 755 F.2d 1162, 1166 (5th Cir. 1985) (quoting Smith v. DeWalt Prods. Corp., 743 F.2d 277, 278 (5th Cir. 1984)). Since the Texas long-arm

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statute has been interpreted as extending to the limits of due process,[1] the only inquiry is whether the exercise of jurisdiction over the nonresident defendant would be constitutionally permissible.Bullion, 895 F.2d at 216; Stuart, 772 F.2d at 1189.

For due process to be satisfied, (1) the nonresident defendant must have “minimum contacts” with the forum state resulting from an affirmative act on the defendant’s part, and (2) the contacts must be such that the exercise of jurisdiction over the person of the defendant does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463
(1940)).

The minimum contacts prong of the due process requirement can be satisfied by a finding of either “specific” or “general” jurisdiction over the nonresident defendant. 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. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475
(1985). Even if the

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controversy does not arise out of or relate to the nonresident defendant’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. See, e.g., Helicópteros Nacionalesde Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984); Keeton v.Hustler Magazine, Inc., 465 U.S. 770, 779 (1984); Perkins v.Benguet Consol. Mining Co., 342 U.S. 437 (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.

Only specific jurisdiction is at issue here, because plaintiff relies on the contract with defendant and facts related thereto to establish personal jurisdiction. Interpreting the evidence in the light most favorable to plaintiff, the evidence shows that defendant purposefully directed its activities at plaintiff in this jurisdiction by inducing plaintiff to enter into the contract at issue. Burger King, 471 U.S. at 472; Mississippi Interstate Express, Inc. v. Transpo,Inc., 681 F.2d 1003 (5th Cir. 1982). The act giving rise to plaintiff’s claims was the breach of the contract, which says that it is enforceable in Texas and contains a Texas choice of law clause, clearly putting defendant on notice that it might be subject to

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jurisdiction here. Command-Aire, 963 F.2d at 95. Plaintiff has satisfied its burden to make a prima facie case for jurisdiction.

The second prong of the due process analysis is whether exercise of jurisdiction over the nonresident defendant would comport with traditional notions of fair play and substantial justice.International Shoe, 326 U.S. at 316. In determining whether the exercise of jurisdiction would be reasonable such that it does not offend traditional notions of fair play and substantial justice, the Supreme Court has instructed that courts look to the following factors: (1) the burden on the defendant, (2) the interests of the forum state, (3) the plaintiff’s interest in obtaining relief, (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and (5) shared interest of the several states in furthering fundamental substantive social policies. Asahi MetalIndus. Co. v. Superior Court, 480 U.S. 102, 113 (1987) (citingWorld-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292
(1980)). Applying these factors, the court concludes that exercise of jurisdiction over defendant would be constitutionally permissible.

In the alternative, defendant seeks a change of venue pursuant to 28 U.S.C. § 1404 (a), which provides:

(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

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The purpose of the statute is to prevent the waste of time, energy, and money and to protect litigants, witnesses, and the public against unnecessary inconvenience and expense. Van Dusen v. Barrack, 376 U.S. 612, 616 (1964). The party seeking a transfer of venue bears the burden to demonstrate that it is warranted. Time, Inc. v.Manning, 366 F.2d 690, 698 (5th Cir. 1966). Among the factors to be considered are the convenience of the parties and witnesses, the availability of process to compel the presence of unwilling witnesses, the cost of obtaining the presence of witnesses, the relative ease of access to sources of proof, calendar congestion, where the events in issue took place, and the interests of justice in general.Burlington N. Santa Fe Ry. Co. v. Herzog Servs., Inc., 990 F. Supp. 503, 504 (N.D. Tex. 1998). Having considered these factors, the court cannot find that defendant has shown that it would be substantially more convenient for the parties to litigate the case in the Eastern District of Pennsylvania. The case appears to boil down to a swearing match between a citizen of Texas and a citizen of Pennsylvania. Plaintiff performed the majority of its work in Tarrant County, Texas, and persons with knowledge of relevant facts reside in this or the adjoining county. Defendant does not dispute that the contract it signed contains a choice of law provision requiring the application of Texas law. Texas has an interest in seeing that contracts with her citizens are enforced.

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And, although defendant fails to address calendar congestion, the court notes that this case can be tried without delay. Accordingly,

The court ORDERS that defendant’s motion to dismiss and, in the alternative, to transfer venue be, and is hereby, denied.

[1] See, e.g., Guardian Royal Exchange Assurance Ltd. v. EnglishChina Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991); Schlobohmv. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990); Kawasaki SteelCorp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985).

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