Opinion
No. 3:01-CV-1964-D
June 26, 2002
MEMORANDUM OPINION AND ORDER
In this action by plaintiff Billy Davis ("Davis") against defendants Brian Billick ("Billick"), the Baltimore Ravens, Inc. ("BRI"), HBO Sports ("HBO"), and NFL Films alleging claims for copyright infringement, civil conspiracy, tortious interference with prospective business relations, constructive trust, and accounting, defendants move to dismiss all claims against them. The court concludes that it lacks personal jurisdiction over Billick and BRI and that venue is improper as to HBO and NFL Films. Accordingly, it dismisses this action without prejudice.
Defendants also move to dismiss under Fed.R.Civ.P. 9(b) and 12 (b)(6). The court does not reach any grounds for defendants' motions other than those addressed in this opinion.
I
Davis alleges that, while a Ravens player, he developed "The Final Cut," a reality television programming concept that portrayed the Ravens' training camp. He maintains inter cilia that after the Ravens cut him, defendants infringed his copyright in "The Final Cut" by creating, producing, or participating in the creation of the NFL Films documentary "Hard Knocks: Training Camp with the Baltimore Ravens" ("Hard Knocks"), which later aired on HBO.Billick and BRI move to dismiss, contending inter alia that the court lacks personal jurisdiction over them. HBO and NFL Films also move to dismiss, maintaining inter alia that venue is improper.
Billick and BRI have also filed a motion to strike certain evidence in Davis' response to their motion to dismiss. Because the court did not rely on the affidavits at issue in considering Billick and BRI's motion to dismiss, and because they are immaterial to the court's ruling on that motion, the court denies the motion to strike as moot.
II
The court initially considers whether it has personal jurisdiction over Billick and BRI.
A
Billick argues that he is not subject to general personal jurisdiction because the only contact that he has had with Texas in the last ten years consists of one football game between the Minnesota Vikings and the Dallas Cowboys in 1998. BRI maintains that the court lacks general jurisdiction because the Ravens have played no games in Texas and BRI has no other pertinent contacts (done no business, solicited no business, maintained no offices, not qualified to do business here, has no officers, directors, agents, or employees, no mailing address, no telephone number, pays no taxes in Texas). Defendants argue that they are not subject to specific jurisdiction because neither Billick nor BRI has had contact with Davis or anyone else in Texas concerning the creation, production, or distribution of "Hard Knocks."
Davis responds that Billick is subject to personal jurisdiction because he regularly telephones residents in Texas; he maintains automobile insurance through a Texas company; he met and married his wife while employed by the Dallas Cowboys; he regularly travels to Texas and has other contractual relationships in Texas; he refused to review certain documents regarding airline ticket receipts, documents evidencing purchases made in Texas, documents regarding his finances received from Texas, and documents evidencing contracts he has in Texas, all of which show that he has substantial contacts with Texas; and he made misrepresentations to Davis over the telephone when Davis was in Dallas.
Davis contends that the court can exercise jurisdiction over BRI because it regularly travels to Texas to attend National Football League ("NFL") owners meetings and the annual NFL Management Council meeting; BRI has contracts with Texas residents for scouting services; BRI derives substantial income from NFL merchandise sales; BRI failed to review responsive documents to ascertain airline ticket receipts, telephone statements, tax information showing income derived from Texas, documents evidencing money received in Texas, documents evidencing contracts entered into in Texas, and documents related to BRI's solicitation of business in Texas, all of which proves that BRI has substantial contacts with Texas; and BRI made fraudulent misrepresentations to Davis over the telephone when Davis was in Dallas.
B
The determination whether a federal district court has in personam jurisdiction over a nonresident defendant is bipartite. The court first decides whether the long-arm statute of the state in which it sits confers personal jurisdiction over the defendant. If it does, the court then resolves whether the exercise of jurisdiction is consistent with due process under the United States Constitution. See Mink v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th Cir. 1999). Because the Texas long-arm statute extends to the limits of due process, the court need only consider whether exercising jurisdiction over Billick and BRI would be consistent with the Due Process Clause of the Fourteenth Amendment. See id; Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 214 (5th Cir. 2000).
"The Due Process Clause of the Fourteenth Amendment permits the exercise of personal jurisdiction over a nonresident defendant when (1) that defendant has 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 that defendant does not offend traditional notions of fair play and substantial justice. To comport with due process, the defendant's conduct in connection with the forum state must be such that he should reasonably anticipate being haled into court in the forum state." Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999) (footnotes omitted). To determine whether exercising jurisdiction would satisfy traditional notions of fair play and substantial justice, the court examines (1) the defendant's burden, (2) the forum state's interests, (3) the plaintiff's interest in convenient and effective relief, (4) the judicial system's interest in efficient resolution of controversies, and (5) the states' shared interest in fundamental social policies. Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 421 (5th Cir. 1993).
A defendant's contacts with the forum may support either specific or general jurisdiction over the defendant. Mink, 190 F.3d at 336. "Specific jurisdiction exists when the nonresident defendant's contacts with the forum state arise from, or are directly related to, the cause of action. General jurisdiction exists when a defendant's contacts with the forum state are unrelated to the cause of action but are continuous and systematic." Id. (citations omitted).
"When a court rules on a motion to dismiss for lack of personal jurisdiction without holding an evidentiary hearing, it must accept as true the uncontroverted allegations in the complaint and resolve in favor of the plaintiff any factual conflicts posed by the affidavits. Therefore, in a no-hearing situation, a plaintiff satisfies his burden by presenting a prima facie case for personal jurisdiction." Latshaw, 167 F.3d at 211 (footnotes omitted).
C
The court first considers whether it has personal jurisdiction over Billick.
I
Davis relies on four reasons to demonstrate "continuous and systematic" contacts between Billick and Texas that are sufficient to confer general jurisdiction over Billick: Billick's regular telephone calls to Texas residents, his maintaining automobile insurance through a Texas company, his marriage to his wife in Texas and subsequent family visits to the state, and his refusal to review documents allegedly demonstrating other ties to Texas. Cases involving general jurisdiction suggest that the threshold contacts required for assertion of such jurisdiction are very substantial. See, e.g., Helicopteros Nacionales de Columbia v. Hall, 466 U.s. 408, 416-19 (1984) (concluding there was no general jurisdiction where defendant traveled to Texas to negotiate sale of helicopters, regularly purchased helicopters in Texas, and sent pilots for training to Texas); Dalton v. R W Marine, Inc., 897 F.2d 1359, 1362-63 (5th Cir. 1990) (concluding there was no general jurisdiction over defendant who chartered boats to Louisiana subsidiary resulting in almost 13% of parent's revenues, advertised in Louisiana, and purchased vessels at marshal's sales; no general jurisdiction over defendant who sold fuel to Louisiana purchasers and traveled into Louisiana territorial water); Bearry v. Beech Aircraft Corp., 818 F.2d 370, 376 (5th Cir. 1987) (determining there was no general jurisdiction over company that advertised in Texas as part of a national campaign and sold goods to Texas distributors via contracts entered into and executed in Kansas). The contacts on which Davis relies are neither sufficiently continuous nor systematic to confer general jurisdiction.
Davis asserts in his Opposition brief that "Billick regularly phones residents in Texas." P. Billick/Ravens Resp. Br. at 4. He does not cite specific evidence to support this assertion. See id. The only pertinent evidence the court has located in Davis' appendix is Billick's stipulation that, during the last 12 years, he has spoken by telephone with coaches and personnel of practically every other NFL team, including coaches and/or personnel from the Dallas Cowboys. See P. Billick/Ravens Resp. App. 3. This evidence — which does not specify the frequency or nature of the telephone calls — is not sufficient to demonstrate continuous and systematic contacts.
To the extent that Davis relies on footnote 15 of his brief as an evidentiary citation for this premise, see id. at 4 n. 15, he neither cites his appendix in the manner required by ND. Tex. Civ. R. 7.2(e) ("If a party's motion or response is accompanied by an appendix, the party's brief must include citations to each page of the appendix that supports each assertion that the party makes concerning any documentary or non-documentary evidence on which the party relies to support or oppose the motion."), nor does he appear to cite evidence that is contained in an appendix, as required by Rule 7.1(i) ("A party who relies on documentary . . . or non-documentary evidence to . . . oppose a motion must include such evidence in an appendix.").
The fact that Billick maintains automobile insurance through a nationwide company that is based in Texas is also insufficient. Davis does not specify the nature of any contacts that Billick has had with Texas in maintaining this insurance relationship, much less any contacts of a continuous and systematic nature.
That Billick was married in Texas is not a continuous or systematic contact but rather a onetime event.
Davis also maintains that he "believes that Billick regularly travels to Texas to visit family and has other contractual relationships in Texas." P. Billick/Ravens Resp. Br. at 4 (footnote omitted). This assertion is not supported by a citation to Davis' appendix and does not refer to evidence that is sufficient to show continuous and systematic contacts.
See supra note 3. Moreover, if Billick's family visits are infrequent, they would be insufficient to establish personal jurisdiction. See, e.g., Shong Ching Lau v. Change, 415 F. Supp. 627, 631 (E.D. Pa. 1976) (holding that evidence that defendant had previously entered state for purpose of visiting friends and relatives and that he would do so in the future was insufficient to establish personal jurisdiction because contacts were too infrequent and insubstantial to satisfy requirements of Due Process Clause).
Finally, Davis maintains that Billick has refused to review certain documents related to his contacts with Texas. Davis does not refer to these documents in his complaint, and Billick avers by affidavit that, other than his presence at a particular football game in 1998, he has had no other business dealings or investments in Texas. See Billick/Ravens App. at 1-2. Davis' general allusion in his brief to "documents regarding airline tickets receipts, documents evidencing purchases made in Texas, documents regarding his finances received from Texas, and documents evidencing contracts he has in Texas," P. Billick/Ravens Resp. Br. at 4-5 (footnote omitted), is insufficient evidence of contacts with this forum. To support his allegations that these documents exist, Davis cites two separately-filed discovery motions, but he does not include the documents or evidence relating to them in his appendix to his response to Billick and BRI's motion to dismiss. The court will not consider evidence cited in the two discovery motions or in appendices to those motions in considering the instant motion to dismiss. See N.D. Tex. Civ. R. 7.1(i) ("A party who relies on documentary. . . . or non-documentary evidence to . . . oppose a motion must include such evidence in an appendix.").
The court holds that Davis has failed to establish by prima facie evidence general personal jurisdiction over Billick.
Davis' sole basis for arguing that the court has specific jurisdiction is his allegation that Billick made fraudulent misrepresentations during telephone calls that Davis made to Billick while Davis was located in Texas. According to Davis, because under Texas law fraud occurs in the jurisdiction where misrepresentations are heard rather than where they are spoken, Billick's statements, even though Davis placed the calls, constitute purposeful availment of the laws of Texas. The court disagrees.
Although the Fifth Circuit has held that even a single telephone call to the forum state can constitute purposeful availment that is sufficient for specific jurisdiction, see Brown v. Flowers Industries, Inc., 688 F.2d 328, 332 (5th Cir. 1982), it has distinguished cases, such as the instant one, in which a defendant responded to an unsolicited call from Texas. In Wilson v. Belin, 20 F.3d 644, 648 (5th Cir. 1994), the panel held inter alia that personal jurisdiction could not rest on the out-of-state defendants' responses to uninitiated and unsolicited phone calls. Id. at 649. Relying on Wilson, the Eastern District of Louisiana concluded that it lacked personal jurisdiction over a defendant who allegedly made a defamatory statement during a telephone call that the plaintiff initiated from the forum state. See Benno v. Simon, 1999 WL 1059753, at *5 (E.D. La. Nov. 22, 1999) ("Based on Wilson, this Court will not exercise personal jurisdiction based on one unsolicited telephone call from the forum state to a nonresident defendant.").
Nor does this court deem it significant that the present case involves more than one telephone call. "The crucial inquiry involves whether the contacts suggest that the nonresident defendant purposefully availed himself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Id. at *4 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). Davis has not introduced prima facie evidence that shows that Billick did materially more than talk with Davis during telephone calls that Davis initiated from Texas. He cites two paragraphs from his affidavit — ¶¶ 3 and 6 — in support of this basis for exercising jurisdiction. See P. Billick/Ravens Resp. Br. at 5 n. 18. Paragraph 3 refers to one telephone call that took place between May 12 and May 15, 2000, in which Billick expressed interest in Davis' idea and its possibilities and encouraged him to disclose more of the idea to him. P. Billick/Ravens Resp. App. 2. Paragraph 6 refers to a second call that Davis placed to Billick, on July 22, 2000, in which the two agreed to postpone production of "The Final Cut" until the 2001 training camp, and Billick represented that the Ravens would pick up the project again in April/May of 2001. Id. at 4. In fact, when Davis and Billick met in person about the project, the meeting occurred in Baltimore, Maryland. Id. at 3. Billick's responses to two telephone calls that Davis initiated during a two-month period are not prima facie evidence that Billick purposefully availed himself of the privilege of conducting activities within Texas, thus invoking the benefits and protections of its laws.
Accordingly, the court holds that it does not have specific personal jurisdiction over Billick.
D
The court next considers whether it has personal jurisdiction over BRI.
1
Davis relies on the following to contend BRI has "continuous and systematic" contacts with Texas that are sufficient to confer general jurisdiction: BRI regularly travels to Texas to attend NFL owners meetings and the annual NFL Management Council meeting; the team has contracts with Texas residents for scouting services; BRI derives substantial income from NFL merchandise sales; and BRI failed to review certain documents that prove that it has substantial contacts with Texas. The court holds that these contacts are not sufficiently continuous or systematic to confer general jurisdiction.
The decision of the NFL to schedule various league meetings in Texas is insufficient to establish general jurisdiction over BRI. Attendance at such meetings in Texas is not continuous, because the meetings are held in different states at different times. Nor is it a systematic contact with Texas, since BRI only attends because the NFL has made an independent decision to locate meetings in Texas at particular times. Cf. Donatelli v. Nat'l Hockey League, 893 F.2d 459, 470-71 (1st Cir. 1990); Tagliabue v. Sullivan, 785 F. Supp. 1076, 1079-82 (D.R.I. 1992).
The court recognizes the factual distinctions between Donatelli and Tagliabue, on the one hand, and the present case, on the other. Donatelli and Tagliabue are helpful, however, in understanding the principles that guide whether the conduct of an unincorporated association like the NFL can be attributed to one of its member teams for purposes of exercising general jurisdiction over the team.
Contracting with a Texas resident to scout in the southwest, including Texas, is a similarly insufficient basis for establishing general jurisdiction over a nonresident professional sports team. See Collyard v. Washington Capitals, 477 F. Supp. 1247, 1250 n. 3 (D. Minn. 1979); Munchak Corp. v. Riko Enters., Inc., 368 F. Supp. 1366, 1374 (M.D.N.C. 1973). BRI employs one scout who resides in Texas and who, from October until December each year, scouts for the team in the southwestern region of the United States, which includes several states besides Texas. P. Billick/Ravens Resp. Supp. App. 4. This single scout's activities in Texas, and the fact that he resides in Texas, are not substantial enough, compared with BRI's overall business operations as a professional football team located in Maryland, to equate to continuous or systematic contacts that are sufficient to confer general jurisdiction over BRI. See Wilson, 20 F.3d at 649-50 n. 5 (holding that continuous and systematic contacts must also be substantial to establish general jurisdiction); see also Helicopteros, 466 U.S. at 417, 418-19 (refusing to uphold general jurisdiction over foreign corporation that negotiated contract in, purchased equipment from, and had its employees trained in forum state, because such activity did not constitute continuous and systematic contacts); Holt Oil Gas Corp. v. Harvey, 801 F.2d 773, 779 (5th Cir. 1986) (upholding general jurisdiction over nonresident defendant who attended college in, owned real estate in, traveled to, and conducted extensive business dealings in forum state to such an extent that, in toto, his contacts evidenced "constant and extensive personal and business connections with [the forum state] throughout [the nonresident defendant's] adult life").
The sale of NFL merchandise in Texas is also an insufficient basis for establishing personal jurisdiction, since this contact is not between BRI and Texas. NFL Properties, Inc. manages and controls out-of-territory sales of team merchandise. P. Billick[Ravens Resp. Supp. App. 5. NFL merchandise sales made in a state, like the telecast of NFL games into the state, "form too slippery a foothold for personal jurisdiction" over a particular NFL team that has no continuous and systematic business contacts with the forum. See Donatelli, 893 F.2d at 471 (addressing telecasting of play-by-play accounts of NFL football games); see also Tagliabue, 785 F. Supp. at 1080 (holding that sale of NFL merchandise in state did not establish general jurisdiction over NFL).
Finally, for the reasons discussed supra at § II(C)(1), BRI's alleged refusal to review certain documents relating to their alleged contacts with Texas does not confer general jurisdiction over the team in this forum.
The court holds that it does not have general personal jurisdiction over BRI.
2
Davis' sole basis for arguing that the court has specific jurisdiction over BRI is his allegation that the team was responsible for fraudulent misrepresentations made to Davis over the telephone when Davis was in Dallas. For the reasons discussed supra at § II(C)(2), the court holds that the telephone calls between Davis and Billick, wherein Davis alleges that Billick made fraudulent misrepresentations to him, are insufficient to establish specific personal jurisdiction over BRI.
III
The court next considers whether venue is proper in this district as to HBO and NFL Films. HBO and NFL Films argue that none of the events or omissions leading to Davis' claims against them occurred in the Northern District of Texas, and that venue in this forum is therefore improper. Davis responds that "The Final Cut" was created in Dallas, he had several conversations about it while he was in Dallas, he is a Texas resident, the alleged fraud in this case was directed toward Texas, damages were caused in Texas, most of the evidence in the case is in Texas, and prosecuting his claims in another venue would be cost-prohibitive.
Venue in this case is controlled by 28 U.S.C. § 1391 (b)(2), which provides that a civil action predicated not solely on diversity of citizenship may be brought in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred." Once a defendant has objected to a plaintiff's chosen venue, as HBO and NFL Films have done by filing their motion to dismiss, the burden shifts to Davis to establish that venue is proper. See Advanced Dynamics Corp. v. Mitech Corp., 729 F. Supp. 519 (N.D. Tex. 1990) (Belew, J.). The dispositive question is: Where did a substantial part of the events or omissions giving rise to Davis' claims occur?
Davis bases his choice of venue in the Northern District of Texas on this provision of the venue statute. See Am. Compl. ¶ 7.
This determination is an issue of federal law. Leroy v. Great W. United Corp., 443 U.S. 173, 183 n. 15 (1979). In a case such as this, where the claims stem from an allegation of copyright infringement, the court focuses on the actions of the defendants, not of the plaintiff. See Gaines Emhof Metzler Kriner v. Nisberg, 843 F. Supp. 851, 854 (W.D.N.Y. 1994); see also Woodke v. Dahn, 70 F.3d 983, 985 (8th Cir. 1995) ("We think it far more likely that by referring to events or omissions giving rise to the claim, Congress meant to require courts to focus on relevant activities of the defendant, not of the plaintiff For one thing, it is not easy to know how a plaintiff's omissions could ever be relevant to whether a claim has arisen. For another, while damages or potential adverse economic effect are a necessary part of a Lanham Act claim, if Congress had wanted to lay venue where the plaintiff was residing when he was injured, it could have said so expressly.").
Davis argues that because he created "The Final Cut" in Dallas, several conversations about it occurred while he was in Dallas, he is a Texas resident, the fraud perpetrated upon him was directed toward Texas, he was damaged in Texas, and most of the evidence that would be presented at trial is located in Dallas, venue is proper in this forum. The court disagrees.
Each of Davis' arguments, except the contention that the alleged fraud was directed toward Texas, addresses his relevant activities, not those of HBO or NFL Films, which are the pertinent ones for ascertaining venue. The alleged fraud directed toward Texas involved telephone conversations between Davis and Billick, not between Davis and representatives of either HBO or NFL Films. In fact, Davis has not identified a single fact that shows a connection between the Northern District of Texas and the alleged acts or omissions of HBO or NFL Films. Davis has therefore failed to adduce evidence that a substantial part of the events or omissions giving rise to his claims against these two defendants occurred in this forum. Venue in this court is therefore improper as to HBO and NFL Films.
* * *
The court grants Billick and BRI's motion to dismiss for lack of personal jurisdiction and HBO and NFL Films' motion to dismiss for improper venue. By judgment filed today, this action is dismissed without prejudice.
SO ORDERED.