Opinion
CIVIL ACTION NO. 3:02-CV-2614-AH
May 14, 2003
MEMORANDUM OPINION AND ORDER
Pursuant to the consents of the parties, the provisions of 28 U.S.C. § 636 (c), and the District Court's Order of Transfer filed on February 21, 2003, came on to be considered Defendant Tennessee Municipal League Risk Management Pool, Inc.'s (hereinafter "Defendant" or "TMLRMP") Motion to Dismiss filed on January 27, 2003; Plaintiff Risk Technologies, Inc.'s (hereinafter "Plaintiff" or "RTI") Response filed on February 11, 2003; and Defendant's Reply thereto filed on February 20, 2003.
RTI also filed its Objections to and Motion to Strike Portions of the Affidavit of Dawn Crawford on February 11, 2003. However, considering that the court is required to construe the evidence in a light most favorable to RTI on a motion to dismiss, the court finds it unnecessary, at this point in the litigation, to address the merits of RTI's Motion to Strike.
I. Background
On December 5, 2002, RTI, a Texas corporation, filed suit against TMLRMP, a Tennessee corporation, in this court, alleging a cause of action for breach of contract. ( See, Pl.'s Original Compl.). On or about December 16, 2002, pursuant to Federal Rule of Civil Procedure 4(e)(1) and Texas Civil Practice and Remedies Code § 17.044(b), service was effected on TMLRMP, through its executive vice president and chief financial officer, Ms. Dawn R. Crawford ("Ms. Crawford"), by way of substituted service on the Secretary of State of Texas. ( See Letter from Secretary of State filed Jan. 2, 2003; App. to Defs Mot. to Dismiss at p. 22 (Affidavit of Dawn Crawford) ("Crawford's Aff.")).In its complaint, RTI alleges that on December 11, 2001, it entered into a contract with TMLRMP for, inter alia, the design and implementation of a "Risk Management Information System" ("RMIS") for TMLRMP, pursuant to which RTI commenced performing various tasks, including designing, installing, and implementing the RMIS, and continued to do so for approximately a ten-month period. ( See Pl.'s Original Compl. at ¶¶ 6-8). On October 28, 2002, RTI received an e-mail from Ms. Crawford wherein she unilaterally suspended RTI's performance under the contract. ( Id. at ¶ 12; App. to Pl.'s Resp. Ex. 1 (Affidavit of Chuck Allen) ("Allen's Aff.") at ¶ 16). Thereafter, RTI received a letter from an attorney retained by TMLRMP, dated November 19, 2002, wherein TMLRMP repudiated the contract and demanded the return of the money — $311,076.51 — it had paid to RTI. ( Id. at ¶¶ 14-15; Pl's Original Compl. at Ex. B (Letter from attorney J. Russell Farrar)). The complaint also alleges that although RTI fully performed its obligations in compliance with the terms of the contract, TMLRMP further breached the same by failing to return various items to RTI, including its "original source-code" software, equipment, and work-papers; to pay RTI all sums due; and to provide RTI with certain required information and notices. ( Id. at ¶¶ 18-24).
The contract entered into by the parties consists of a "Pricing Agreement" and a "License and Service Agreement" with two attachments entitled "[TMLRMP's] Responsibilities" and "[RTI's] Specific Service Support Responsibilities," respectively. ( See App. to Def.'s Mot. to Dismiss at pp. 12-18 (hereinafter "contract")). The contract contains a choice-of-law provision which provides that the parties' agreement "shall be . . . governed by the laws of the State of Texas." (App. to Def.'s Mot. to Dismiss at p. 16, ¶ 19.3 (License and Service Agreement)).
TMLRMP alleges that RTI picked up its equipment on January 24, 2003. ( See Def.'s Br. at p. 14 n. 3).
On January 27, 2003, TMLRMP filed its motion for dismissal of Plaintiff's claim pursuant to Federal Rule of Civil Procedure 12(b)(2) asserting that the court lacks personal jurisdiction. ( See, e.g., Def.'s Mot. to Dismiss).
On February 7, 2003, RTI filed its First Amended Complaint wherein it alleged, inter alia, that the court could properly exercise personal jurisdiction over TMLRMP as a result of Defendant's having purposefully availed itself of the benefits and protections of Texas' state laws. ( See Pl.'s First Am. Compl. at ¶ 3.2). RTI alleged that various contractual provisions and/or conduct under the same constituted "minimum contacts" with the state of Texas, sufficient for the court to exercise jurisdiction over TMLRMP. ( Id.). For instance, under the terms of the contract, which was to be "in full force and effect . . . for [a period of] five years," RTI granted access to its computer networks, residing entirely in Texas, by TMLRMP and/or its users through the establishment of a "Virtual Private Network" ("VPN"). ( Id.; App. to Def.'s Mot. to Dismiss at p. 14, ¶ 1 (License and Service Agreement)). Additionally, RTI was to operate a remote system support (i.e., a telephone help desk) for issues related to the RMIS and electronically submit updates of the same to TMLRMP from RTI's Texas-based facility. ( Id.; App. to Def.'s Mot. to Dismiss at pp. 12 (Pricing Agreement) and 18 (Attach. 1 to License and Service Agreement)). Further, according to RTI, TMLRMP sent its representatives and/or agents to Texas to evaluate and assist with RTI's design of the software covered by the contract. ( Id..
II. Analysis
In general, a plaintiff opposing a motion to dismiss for lack of personal jurisdiction bears the burden of establishing that a court has personal jurisdiction over the party moving to dismiss. See Bullion v. Gillespie, 895 F.2d 213, 216-17 (5th Cir. 1990); see also Lewis v. Fresne, 252 F.3d 352, 358 (5th Cir. 2001). Where, as here, a court rules on such a motion without holding an evidentiary hearing, the court must accept as true all uncontroverted allegations in the complaint and resolve all factual conflicts presented in the parties' affidavits in favor of the party seeking to invoke the court's jurisdiction. See Central Freight Lines, Inc. v. APA Transport Corp., 322 F.3d 376, 380 (5th Cir. 2003) (citation omitted). Thus, in this case, RTI need only establish a prima facie case supporting personal jurisdiction. Id.In a diversity action, a federal court may exercise personal jurisdiction over a nonresident defendant if 1) the long-arm statute of the forum state confers personal jurisdiction over the defendant; and 2) exercise of such jurisdiction by the forum state is consistent with due process under the United States Constitution. Mink v. AAAA Development, LLC, 190 F.3d 333, 335 (5th Cir. 1999). The Fifth Circuit Court of Appeals has recently reaffirmed that it is "well-established that the Texas long-arm statute authorizes the exercise of personal jurisdiction to the full extent allowed by the Due Process Clause of the Fourteenth Amendment." Central Freight Lines, 322 F.3d at 380. As such, the principal question presented is whether the assertion of jurisdiction over TMLRMP is constitutionally permissible. See Jones v. Petty-Ray Geophysical, Geosource, Inc., 954 F.2d 1061, 1068 (5th Cir. 1992) (citation omitted); see also Mink, 190 F.3d at 335 (in light of the reach of the Texas long-arm statute, when considering the propriety of exercising personal jurisdiction over a nonresident defendant a court need only determine whether subjecting the same to a suit in Texas is consistent with the Due Process Clause).
The Texas long-arm statute authorizes the exercise of jurisdiction over, among others, those who do business in Texas, which includes contracting "by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in [Texas]." TEX. Civ. PRAC. REM. CODE ANN. § 17.042; See Jones v. Petty-Ray Geophysical, Geosource, Inc., 954 F.2d 1061, 1067 (5th Cir. 1992).
Due process requires (1) the defendant to have established "minimum contacts" with the forum state; and (2) that the court's exercise of personal jurisdiction does not offend "traditional notions of fair play and substantial justice." Ham v. La Cienega Music Co., 4 F.3d 413, 415 (5th Cir. 1993) (citing Asahi Metal Indus. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, (1987) and Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174 (1985)). To establish "minimum contacts" with a forum state, a nonresident defendant "must have purposefully availed [it]self of the benefits and protections of the forum state. . . ." Marathon Oil Co. v. A. G. Ruhrgas, 182 F.3d 291, 294-95 (5th Cir. 1999) (citation omitted). However, a defendant's contacts with the forum state must be such that it should "reasonably anticipate" being haled into court there, id. at 295 (citing World Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567 (1980)), as compared to contacts which are merely "random, fortuitous, or attenuated" in character. See Burger King Corp., 471 U.S. at 475, 105 S.Ct. at 2183 (internal quotation marks omitted). There are two types of minimum contacts": (1) those which arise from, or are directly related to, the cause of action, giving rise to specific personal jurisdiction, Marathon Oil Co., at 295 (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 1872 n. 8 (1984), and (2) those which, although unrelated to the cause of action, are "continuous, systematic, and substantial" with respect to the forum state, giving rise to general personal jurisdiction. Id. (citing Helicopteros, 466 U.S. at 415, 104 S.Ct. at 1868 and Wilson v. Belin, 20 F.3d 644, 649 (5th Cir. 1994)). TMLRMP's contentions
RTI does not assert that the court may exercise general jurisdiction over TMLRMP. As such, the court need only determine whether it may exercise specific personal jurisdiction over TMLRMP.
In support of its Motion to Dismiss, TMLRMP asserts that it would be impermissible for the court to exercise personal jurisdiction over it because as a nonresident it is not amenable to service under the Texas long-arm statute, because it is not "doing business" in Texas. Specifically, TMLRMP contends that the terms of the contract were negotiated, and the performance contemplated thereunder was primarily performable, in Tennessee. (Def.'s Mot. to Dismiss at p. 4, 10). In fact, Defendant contends that no performance under the contract was required to occur in Texas. ( Id. at 11).
3. Facts Viewed in the Light Most Favorable to Plaintiff
After TMLRMP's prior RMIS provider informed that it would no longer provide such services Defendant hired the Deloitte Touche ("DT") Risk Management Information Systems group to determine its RMIS needs and to locate potential, replacement service providers. (Crawford's Aff. at p. 2). Ultimately five such service providers, including RTI, presented their service proposals to TMLRMP. ( See App. to Pl.'s Resp. Ex. 1 (Affidavit of Chuck Allen) ("Allen's Aff.") at ¶ 5; Crawford's Aff. at 3). RTI presented its proposal to TMLRMP over the Internet from RTI's offices in Texas, after which it was selected as TMLRMP's new service provider. (Allen's Aff. at ¶ 6). After the parties discussed the contract provisions over the phone, RTI drafted the contract at its Texas office and submitted the same to TMLRMP via both electronic and U.S. mail. ( Id. at ¶ 7). Dawn Crawford, Defendant's executive vice president and chief financial officer, signed the contract on behalf of TMLRMP in Tennessee and mailed it to RTI's Texas office, where Allen signed on behalf of RTI. (Crawford's Aff. at p. 3; Allen's Aff. at ¶ 9).
The contract entered into by the parties, comprised of a "Pricing Agreement" and a "License and Service Agreement" with attachments, see n. 2, supra, reflects an agreement, effective for 5 years, with an option to be renewed for two additional one year periods, whereby TMLRMP agreed to pay RTI in exchange for its agreement to license its software for use by TMLRMP; to provide various services and support to TMLRMP, including annual software maintenance, software upgrades, and telephone support available twenty-four (24) hours a day, seven (7) days a week; and to sell both computer hardware and software to TMLRMP. (Pl.'s App. at pp. 12-13 (Pricing Agreement), at p. 14 (License and Service Agreement), and at p. 18 (Attachment 2 referencing RTI's responsibility to provide standard phone service from 8:00 am to 6:00 pm CST)). RTI's responsibility for providing remote system support and updates was to be accomplished through the parties' "Virtual Private Network" ("VPN"). (Allen's Aff. at ¶ 8).
In February of 2002, RTI provided TMLRMP with remote access to a prototype RMIS by way of the secure VPN, which allowed TMLRMP's authorized users — i.e., those with the correct security information such as the website's IP address and current password — to access RTI's Texas-based computer servers over the Internet. ( Id. at ¶ 11). By connecting to this VPN, TMLRMP's users could remotely access the prototype RMIS and "manipulate" the same prior to full implementation of the "live" system. ( Id. at ¶ 12). Jim Morrison ("Morrison"), TMLRMP's president, accessed the prototype RMIS almost daily during the first eight (8) months of its development. ( Id.). From January to September of 2002, Defendant's project managers — employees of DT — visited RTI's facilities in Mansfield, Texas. ( Id. at ¶ 13). The final visit for a system review was also attended by Mr. Morrison. ( Id.).
Development of the RMIS, as well as the testing and review of the same, took place in Texas, either in RTI's Texas offices or on its Texas-based computer servers, which were remotely accessed by employees and agents of TMLRMLP. ( Id. at ¶ 14). Additionally, TMLRMP's archived, computer data were converted by RTI's employees using its computer servers. ( Id.). 4. Law applied to the Facts a. "Minimum Contacts" Sufficient to Establish Specific Jurisdiction
TMLRMP's Tennessee-based servers did not become operational until August 2002, eight months after work had commenced on the RMIS. ( Id. at 14).
RTI predicates its claim that this court may exercise personal jurisdiction over TMLRMP, in part, on the contract entered into on December 11, 2001. A contract with an out-of-state party alone, although relevant, does not automatically establish sufficient minimum contacts. Electrosource, Inc. v. Horizon Battery Technologies, Ltd., 176 F.3d 867, 872 (5th Cir. 1999) (citing Burger King, 471 U.S. at 478, 105 S.Ct. at 2185). Instead, a court must employ a "highly realistic" approach, recognizing that a contract is merely an intermediate step serving to memorialize the real objects of a business transaction: completing prior negotiations and defining future consequences. Id. These factors (i.e., prior negotiations and contemplated future consequences), along with the terms of the contract and the parties' actual course of dealing, must be evaluated in determining whether the defendant purposefully established "minimum contacts" within the forum. Id. (emphasis added). Moreover, where, as here, jurisdiction is predicated on a contract, a court should look to the place of contractual performance, the place of contracting, and the law governing the contract as additional, relevant — although not determinative — factors in addressing the question of purposeful activity. See Petty-Ray Geophysical, supra, 954 F.2d at 1068-69 (citing Barnstone v. Congregation Am Echad, 574 F.2d 286, 288 (5th Cir. 1978) and Southwest Offset, Inc. v. Hudco Publishing Co., 622 F.2d 149, 152 (5th Cir. 1980)). A choice-of-law provision should neither be ignored nor considered sufficient alone to confer jurisdiction, rather it is one factor, among others, that may determine whether the forum State has jurisdiction over a nonresident defendant. Electrosource, 176 F.3d at 873 (citing Burger King, 471 U.S. at 482, 105 S.Ct. at 2187). Such clauses have been held to reaffirm a party's "deliberate affiliation with the forum State and the reasonable foreseeability of possible litigation there." Burger King, 471 U.S. at 482, 105 S.Ct. at 2187.
As set out above, Defendant used DT to solicit a replacement RMIS service provider. Defendant ultimately selected Plaintiff as its provider and entered into a contract with it for such services. With respect to the negotiations which preceded the signing of the contract, it appears that terms were negotiated over the Internet from RTI's Texas offices. Further, the contract itself was drafted by RTI.
The obligations imposed under the contract, which was entered into in Texas, were performable in Texas, except for TMLRMP's receipt of computer hardware and software in Tennessee. In addition to RTI's licensing of its software for use by TMLRMP, RTI was required to provide TMLRMLP with electronic updates to the RMIS and to provide customer service support via telephone, all of which were to emanate from RTI's offices in Texas. Further, the contract included a choice-of-law provision specifying that Texas state law governed the parties' agreement.
Crawford executed the contract on behalf of TMLRMP and then delivered the same to RTI's offices in Texas, where Allen executed the contract on behalf of RTI. See, e.g., Mayo v. Hartford Life Ins. Co., 220 F. Supp.2d 714, 747 (S.D. Tex. 2002) (citing Metropolitan Life Ins. Co. v. Greene, 93 S.W.2d 1241, 1245-46 (Tex.Ct.App. — El Paso 1936, no writ) (the place a contract is made is deemed to be the place of performance of the final act necessary to complete the contract to make it binding on the parties).
With respect to the parties' course of dealings, it is reasonably clear that TMLRMP's employees accessed the RMIS developed by RTI and received updates to the same through an Internet website created solely for that purpose. According to RTI, both parties knowingly and repeatedly transmitted computer files over the Internet via the VPN established between RTI's Texas-based computer servers and TMLRMP's Tennessee-based remote access locations.
In determining whether personal jurisdiction exists where minimum contacts are asserted based on Internet usage, the Fifth Circuit applies a sliding scale approach to determine the "nature and quality of [the] commercial activit[ies] [conducted by a defendant] over the Internet." Mink v. AAAA Dev. LLC, 190 F.3d 333, 336-37 (5th Cir. 1999) (citing Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997)). At one end of the spectrum, the exercise of personal jurisdiction is proper where a defendant conducts business by entering into contracts with residents of the forum state that "involve the knowing and repeated transmission of computer files over the Internet." Id. at 336 (quoting Zippo Mfg. Co., 952 F. Supp. at 1124). At the other end of the spectrum, the exercise of personal jurisdiction is inappropriate where a defendant operates a "passive" web site which only advertises services. Id. In the middle of the spectrum, where a defendant operates a web site that allows a user to exchange information with a host computer, "the exercise of jurisdiction is determined by the level of interactivity and commercial nature of the exchange of information that occurs on the Website." Id. (quoting Zippo Mfg. Co., 952 F. Supp. at 1124).
RTI's cites Mink for the proposition that personal jurisdiction is proper where a nonresident defendant enters into a contract with a resident of a forum state which involves "the knowing and repeated transmission of computer files over the Internet." As such, it is appropriate for the court to consider the facts which underlie Zippo Mfg. Co., as well as those which underlie cases on which the same relies for support.
In Zippo Mfg. Co, the court found that the defendant's conduct — i.e., contracting with over 3,000 individuals and seven Internet providers in Pennsylvania, the forum state — was sufficient to establish personal jurisdiction because such conduct constituted "doing business over the Internet." Id. at 1125-26 (citing CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996)).
In CompuServe, the Sixth Circuit Court of Appeals considered the significance of doing business over the Internet. In that case, Patterson, a Texas resident, entered into a contract to distribute software through CompuServe's Internet server located in Ohio. CompuServe, 89 F.3d at 1260. Patterson uploaded software files to CompuServe's server via the Internet. Id. at 1261. After Patterson threatened to sue CompuServe for marketing a product similar to his own, CompuServe sought a declaratory judgment in an Ohio federal district court. Patterson successfully obtained dismissal of the complaint for lack of personal jurisdiction, after which CompuServe appealed. On appeal, the Sixth Circuit found that Patterson had purposefully directed his business activities toward Ohio by knowingly entering into a contract with an Ohio resident to market his software to customers in other states, which required him to "repeatedly" transmit the same to Ohio; by advertising his software on CompuServe; and by initiating the events — i.e., making demands of CompuServe via both electronic and regular mail — which precipitated CompuServe's filing of a lawsuit against him. Id. at 1263-66.
TMLRMP argues that neither Mink nor the cases on which Mink relies (i.e., Zippo Mfg. Co., in turn, relying on CompuServe) are pertinent to the court's determination of the import of the parties' Internet use because the same was not for commercial profit — i.e., not for the purpose of "doing business." Instead, TMLRMP cites Pres-Kap, Inc. v. System One Direct Access, Inc., asserting that the facts of that case are analogous to those in the instant case, and, therefore, should inform this court's determination regarding the propriety of exercising personal jurisdiction over TMLRMP. 636 So.2d 1351 (Fla.App. 1994), review denied, 645 So.2d 455 (Fla. 1994).
In Pres-Kap, a Florida intermediate appellate court refused to exercise personal jurisdiction over a consumer — a New York corporation which owned and operated a travel agency — of an on-line (i.e., Internet) airline ticketing service which was owned and operated by a Delaware corporation. Pres-Kap, 636 So.2d at 1351-52. The New York-based defendant had leased computer equipment from the Delaware-based plaintiff which the New York corporation used to access the latter's airline ticketing computer located in Florida. Id. The lease contract was solicited, negotiated, and serviced in New York. Id. at 1352. The defendant's only contact with Florida consisted of logging onto the computer located in Florida and mailing payments for the leased equipment to Florida. Id. at 1353.
Although TMLRMP correctly points out that there are some similarities between itself and the New York-based defendant in Pres-Kap, the court finds that its reliance thereon is largely misplaced.
In the instant case, it is beyond doubt that TMLRMP frequently accessed RTI's prototype RMIS program and "repeatedly" transmitted, and received, electronic information to/from RTI's Texas-based computer servers over the Internet. However, these Internet transmissions were not made with an intent to derive a commercial benefit from such a course of conduct, rather they were central and critical to each party's performance of their respective obligations imposed under the contract: RTI was charged with creating a RMIS for TMLRMP, which, necessarily, required input from TMLRMP to ensure that such a system was both functional and consistent with its needs, and which RTI ultimately transmitted to TMLRMP over the Internet.
Although TMLRMP is correct in its assertion that such conduct, standing alone, cannot support the exercise of personal jurisdiction, RTI has produced evidence that it received an e-mail from Ms. Crawford wherein she unilaterally suspended performance under the contract. (Allen's Aff. at ¶ 16). RTI also produced documentary evidence of a letter Mr. Allen, RTI's president, received from an attorney retained by TMLRMP, wherein it was alleged that RTI had breached the parties' contract, and which demanded that RTI return $311,076.51 within seven (7) days from its receipt of the letter or be subjected to litigation. (Def.'s App. at 20-21).
In addition to these acts which TMLRMP purposefully directed at the State of Texas, which were absent in Pres-Kap, the parties in the instant case negotiated and executed their contract in Texas, where it was partially performable. The parties also included a choice-of-law clause which provided that the agreement was to be governed by the laws of the State of Texas. When the foregoing facts are considered in their totality, it is clear that TMLRMP did "purposefully" engage in, as well as "originate and maintain," contacts directed at the State of Texas, which were either related to or arose from its contract with RTI. American Greetings Corp. v. Cohn, 839 F.2d 1164, 1170 (6th Cir. 1988) (court found that where a nonresident defendant had made telephone calls and sent letters to plaintiff in Ohio, in which he threatened to bring a suit and sought money to release his claim, he had "originated and maintained" the required contacts with Ohio and thus satisfied both the minimum contacts and the "purposeful availment" prongs of the due process inquiry).
Accordingly, the court finds that, after employing a "highly realistic" approach with respect to consideration of the parties' contractual relations, based on RTI's First Amended Complaint, see n. 4, supra, RTI has pled facts sufficient to show that TMLRMP has purposefully directed contacts at the State of Texas, sufficient for the court to exercise specific personal jurisdiction over TMLRMP.
b. Traditional Notions of Fair Play and Substantial Justice
Since RTI has satisfied its burden of establishing minimum contacts between TMLRMP and the State of Texas, the burden shifts to TMLRMP to show that the assertion of jurisdiction is unfair and unreasonable. Central Freight, supra, 322 F.3d at 384 (citing Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir. 1999)). To satisfy its burden, a defendant must make a compelling case. Id. ( citing Burger King, 471 U.S. at 477, 105 S.Ct. at 2184). In determining the issue of fairness, a court must examine (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 shared interest of the several states in furthering fundamental substantive social policies. Id. (citing Burger King, 471 U.S. at 477, 105 S.Ct. at 2184 and Asahi Metal Indus. Co., Ltd v. Superior Court of California, 480 U.S. 102, 113, 107 S.Ct. 1026, 1033 (1987)).
In its Motion to Dismiss, TMLRMP argues that it would be burdened were it required to litigate this matter in Texas considering that it only has two officers, very few management and technical personnel, and lacks the financial resources to defend the case in Texas. TMLRMP also argues that the State of Texas has little interest in this case as compared with Tennessee.
After fully considering TMLRMP's contentions, the court finds that it has not made a compelling case demonstrating fundamental unfairness, as none of its arguments " persuasively demonstrate that traditional notions of fair play and substantial justice would be offended by the court asserting personal jurisdiction" over TMLRMP. Central Freight, at 384 (emphasis added) (internal quotation marks omitted). Further, it is presumptively not unreasonable to require a defendant to submit to the burdens of litigation in a forum state when the defendant has "deliberately engaged in significant activities within [that] state, . . . or has created continuing obligations between [it]self and residents of the forum," "[especially where] [it] manifestly has availed [it]self of the privilege of conducting business there, and . . . [its] activities are shielded by the benefits and protections of the forum's laws. . . ." Burger King, 471 U.S. at 475-76 (internal quotation marks omitted).
Not only has TMLRMP "purposefully" directed numerous contacts at the State of Texas, it has, by the terms of the contract, created, at least, five (5) years of continuing obligations between the parties in the form of customer service support via telephone, as well as the electronic transmission of software updates, both of which were to emanate from the State of Texas. Additionally, to the extent that TMLRMP contracted to have the laws of the State of Texas govern the parties' agreement, it invoked both the benefits and the protections of Texas' state laws. Accordingly, the court finds that its exercise of personal jurisdiction over TMLRMP would not offend traditional notions of fair play and substantial justice.
III. Conclusion
For the foregoing reasons, Defendant's Motion to Dismiss for Lack of Personal Jurisdiction is DENIED.