Opinion
No. 3:03-CV-1901-M.
May 28, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant First Summit Financial, Inc.'s ("FSF") Motion to Dismiss for Lack of Personal Jurisdiction, filed on September 8, 2003. The Court grants in part and otherwise denies Defendant's Motion.
I. BACKGROUND
Plaintiffs bring suit against FSF, alleging the following facts: Plaintiff Rodney Dockery is a resident of Dallas, Texas, and the sole owner and president of Plaintiff Dockery House Publishing, Inc. ("Dockery House"), a Texas corporation with its principal place of business in Dallas County, Texas. In 2001, Plaintiffs' then-employee Defendant Robert Nightengale identified Defendant William R. Pickering, the president of FSF, as a potential publishing transaction client. Plaintiffs and Pickering began discussing the establishment of an organization that would provide a variety of services to individuals in connection with their retirement. Among the organization's offerings would be financial and insurance services coordinated and marketed through Pickering and FSF. Plaintiffs and Pickering, on behalf of himself and FSF, participated in the development of the business plan and the identification of potential investors and industry partners. In November 2002 or January 2003, Pickering traveled to Dallas, Texas, to meet with Plaintiffs at Dockery's home. Pickering, individually and on behalf of FSF, agreed to form a partnership/joint venture to engage in a preliminary investigation and initial establishment of the retirement services business. Marketing materials were prepared identifying Plaintiffs as "strategic partners" with Pickering and FSF. Plaintiffs and Pickering later agreed to act as fiduciaries to each other, and determined to further the partnership/joint venture by creating a Delaware corporation to be called Platinum Privileges, Inc. Defendant Platinum Privileges, Inc. ("Platinum") was established in April 2002, after which a series of events transpired giving rise to this action. In particular, Plaintiffs allege that they were wrongfully excluded from decisions concerning the corporation, including the changing of its name, the election of its board of directors, and the issuance of stock.
In Plaintiffs' Second Amended Original Complaint at para. 4.07, Plaintiffs indicate: "At a meeting at Plaintiff Dockerys [sic] House in November 2002 or January 2003, Plaintiffs and Defendant Pickering, individually and on behalf of Defendant FSF agreed that they would conduct the preliminary investigation and initial establishment of such organization as a partnership/joint venture."
See Plaintiffs' Supplemental Appendix in Support of Plaintiffs' Amended Response to Defendant FSF's Motion to Dismiss, filed February 10, 2004, at p. 0062 (Platinum Privileges Business Plan p. 18).
Based on these alleged facts, Plaintiffs assert claims against FSF seeking: (1) a declaratory judgment defining certain facets of the Dockery/Pickering partnership/joint venture and Platinum, (2) damages for breach of the partnership/joint venture agreement, (3) access to the books and records of Platinum, (4) damages for tortious interference with existing and prospective contractual obligations, and (5) damages for civil conspiracy and aiding and abetting breach of fiduciary duty.
II. MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
On September 8, 2003, FSF filed a Motion to Dismiss for Lack of Personal Jurisdiction. On September 29, 2003, Plaintiffs filed a Motion for Extension of Time to Respond to FSF's Motion. At a hearing on October 3, 2003, the Court indefinitely extended Plaintiffs' time to respond to FSF's Motion to Dismiss pending adjudication of Plaintiffs' Motion to Remand After denying Plaintiffs' Motion to Remand, the Court, on January 14, 2004, ordered Plaintiffs to respond to FSF's Motion to Dismiss by February 10, 2004. Accordingly, Plaintiffs filed a Response to FSF's Motion to Dismiss on February 10, 2004, and FSF filed a Reply to Plaintiffs' Response on February 25, 2004. Thus, FSF's Motion to Dismiss is now ripe for consideration.
When a nonresident defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing personal jurisdiction over the nonresident. Lewis v. Fresne, 252 F.3d 352, 358 (5th Cir. 2001). Here, FSF is not incorporated in Texas nor is its principal place of business in Texas. Plaintiff must establish personal jurisdiction over FSF based on its activities in Texas.
The Court may exercise personal jurisdiction over a nonresident defendant if (1) the Texas long-arm statute creates personal jurisdiction over the defendant, and (2) the exercise of personal jurisdiction is consistent with the Constitution's due process requirements. Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002). Because the Texas long-arm statute reaches to Constitutional limits, the Court need only engage in the due process analysis. Id. at 470. Personal jurisdiction over a non-resident defendant comports with the requirements of due process if (1) the nonresident purposefully avails itself of the benefits and protections of the forum state by establishing minimum contacts with the state, and (2) the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. Lewis, 252 F.3d at 358. The non-resident's contacts with the forum state must be sufficient for the non-resident to have reasonably expected to be haled into court there. Id.
The "minimum contacts" analysis may support a finding of either general or specific jurisdiction. The Court may exercise general jurisdiction only where the nonresident maintains continuous and systematic contacts with the forum state. Helicopteros Nacionales, S.A. v. Hall, 466 U.S. 408, 416 (1984). In order to assert specific jurisdiction, the Court must find that the nonresident's contacts arise from or are directly related to the cause of action asserted. Lewis, 252 F.3d at 358. The Court must conduct the minimum contacts analysis separately for each cause of action asserted because Plaintiffs are obligated to secure jurisdiction over FSF with respect to each claim brought. Stelax Indus., Ltd. v. Donahue, No. 3:03-CV-923-M, 2004 WL 733844, at *2 (N.D. Tex. Mar. 25, 2004); BeautiControl, Inc. v. Burditt, No. 3:01-CV-0744-M, 2001 WL 1149360, at *2 (N.D. Tex. Sept. 26, 2001); Denmark v. Tzimas, 871 F. Supp. 261, 266 (E.D. La. 1994); 4A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE 3d § 1069.7 (2002) ("[I]t is important to remember that a plaintiff also must secure personal jurisdiction over a defendant with respect to each claim she asserts.").
Where, as here, the Court decides a motion to dismiss for lack of personal jurisdiction without an evidentiary hearing, Plaintiffs may "satisfy [their] burden by presenting a prima facie case for jurisdiction." Gardemal v. Westin Hotel Co., 186 F.3d 588, 592 (5th Cir. 1999). In determining whether Plaintiffs have satisfied this burden, "uncontroverted allegations in the plaintiff[s'] complaint must be taken as true, and conflicts between the facts contained in the parties' affidavits must be resolved in the plaintiff[s'] favor." Id. The Court will thus look at the facts contained in Plaintiffs' Second Amended Original Complaint and in the affidavits of Rodney Dockery, William R. Pickering, and Terry Ronning (the business records custodian for Dockery House) to determine whether Plaintiff has presented a prima facie case for jurisdiction.
Filed on March 15, 2004, with Plaintiffs' Second Amended Complaint.
Filed on February 10, 2004, with Plaintiffs' Supplemental Appendix in Support of Plaintiffs' Amended Response to Defendant First Summit Financial, Inc.'s Motion to Dismiss.
Filed on February 10, 2004, with Plaintiffs' Supplemental Appendix in Support of Plaintiffs' Amended Response to Defendant First Summit Financial, Inc.'s Motion to Dismiss.
A. GENERAL JURISDICTION
As noted, the Court may exercise general jurisdiction only if FSF maintains continuous and systematic contacts with Texas. See Helicopteros Nacionales, S.A., 466 U.S. at 416. In his affidavit, Pickering avers that FSF is a Florida corporation with its sole place of business in Lake Mary, Florida. Pickering further submits that FSF has no assets in Texas; has never owned or leased real or personal property in Texas; has never maintained an office, mailing address, or telephone number in Texas; and has never conducted any business in Texas. Plaintiffs' Second Amended Original Complaint at paragraph 2.07 confirms that FSF is a Florida-based business. Contrary to Pickering's affidavit, however, Plaintiffs assert that FSF engages in business in Texas. Even resolving this contradiction in favor of Plaintiffs, as the Court must, Plaintiffs have failed to allege sufficient facts to establish the continuous and systematic contacts with Texas necessary for an assertion of general jurisdiction. Id.; Gardemal, 186 F.3d at 592.
B. SPECIFIC JURISDICTION
1. Alleged Contacts with Texas
Before undertaking the specific jurisdiction analysis for each of Plaintiffs' claims against FSF, the Court finds it helpful to take an inventory of FSF's alleged contacts with Texas. Based on the facts contained in Plaintiffs' Second Amended Original Complaint and in the affidavits of Dockery, Pickering, and Ronning, including the documents filed with Ronning's affidavit, the Court finds only four contacts. First, Pickering allegedly acted on behalf of FSF at either a November 2002 or January 2003 meeting between Pickering and Dockery at Dockery's home in Dallas. The Court will refer to this contact as the "Dallas Meeting." Second, Plaintiffs received in Texas a copy of a letter, dated November 14, 2001, written on FSF letterhead from Pickering to Ken Rea, a collaborator on the predecessor project to Platinum known as Seniority America. The Court will refer to this contact as the "Rea Letter." Third, Plaintiffs received in Texas a copy of a letter written on FSF letterhead from Pickering to Tony David, Director of the Newcourt Capital Group in Atlanta, Georgia. The Court will refer to this contact as the "David Letter." Fourth, Plaintiffs received in Texas a copy of an apparently unexecuted promissory note that indicates Pickering and FSF as joint and several borrowers of $250,000 to be used for Platinum. The Court will refer to this contact as the "Promissory Note."
In considering FSF's alleged contacts with Texas, the Court will not look to certain evidence filed with the Supplemental Appendix in Support of Plaintiffs' Amended Response to FSF's Motion to Dismiss. First, Plaintiffs submit as Appendix 2 excerpts from a hearing before Magistrate Judge Sanderson in which Pickering testified about a meeting held on July 7, 2002, at Dockery's home in Dallas. As noted, para. 4.07 of Plaintiffs' Second Amended Original Complaint alleges that Pickering acted on behalf of FSF at either a November 2002 or January 2003 meeting at Dockery's house. Nowhere do Plaintiffs allege that Pickering acted on behalf of FSF at the meeting in Dallas on July 7, 2002. Thus, the Court will not consider Pickering's testimony about that meeting in adjudicating FSF's Motion to Dismiss. Second, the Court will not consider the Platinum business plan, submitted as Appendix 3, because nowhere do Plaintiffs specifically allege that the plan was distributed by or on behalf of FSF to anyone in Texas. Third, the Court will not consider the letter, filed with Ronning's affidavit in Appendix 4, sent from Bertus Sieckmeijer to Pickering. While a copy of the letter was received by Plaintiffs in Texas, Plaintiffs have not alleged, and there is no other indication, that it was sent by or on behalf of FSF, nor does the letter contain any reference to FSF. Fourth, the Court will not consider the handwritten note, filed with Ronning's affidavit in Appendix 4, from Pickering to Dockery because Plaintiffs have not alleged, and there is no other indication, that Pickering was writing on behalf of FSF or that FSF had anything to do with the note (which does not mention FSF).
Copies of the Rea Letter, David Letter, and Promissory Note were filed with Ronning's affidavit.
2. Declaratory Judgment
When considering specific personal jurisdiction for a declaratory judgment action, the Court should focus on "the relationship among the defendant, the forum, and the litigation." Silent Drive, Inc. v. Strong Indus., Inc., 326 F.3d 1194, 1203-1204 (Fed. Cir. 2003) (citing Calder v. Jones, 465 U.S. 783, 788 (1984)). Specifically, the Court should ask whether the defendant's contacts with the forum arise out of or relate to the underlying controversy. Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73 (1985)); see also Lewis, 252 F.3d at 358. "[A] single act by the defendant directed at the forum state can be enough to confer personal jurisdiction if that act gives rise to the claim being asserted." Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999). For a single act to be sufficient, it must create a "substantial connection" with the forum; single acts "may not be sufficient to establish jurisdiction if `their nature and quality and the circumstances of their commission' create only an `attenuated' affiliation with the forum." Burger King Corp., 471 U.S. at 475-76 (internal citation omitted).
Plaintiffs request a declaratory judgment defining "the rights, duties and responsibilities of the parties in conjunction with the formation, ownership, interests, and operation of the Dockery/Pickering Partnership/Joint Venture and Platinum including but not limited [to]:
A. The existence of the Partnership/Joint Venture;
B. The right to manage the Partnership/Joint Venture;
C. The right to conduct the day-to-day affairs of the Partnership/Joint Venture;
D. The right to conduct the operations of Defendant Platinum on behalf of the Partnership/Joint Venture;
E. The ownership and shareholders of the Defendants [sic] Platinum;
F. The identity of the directors of Defendant Platinum and their authority to act on Platinum's behalf;
G. The identity of the officers of the Defendant Platinum and their authority to act on its behalf; and
H. The validity of any contractual agreement to which Platinum is allegedly a party.
I. Plaintiffs' right to redemption and indemnification in the Texas Revised Partnership Act Article 6132(b)-4.06 and 7.01(a)."
Plaintiffs' Second Amended Original Complaint para. 5.02.
Additionally, Plaintiffs request the Court declare that FSF has no interest in and to the partnership/joint venture.
Plaintiffs' Second Amended Original Complaint para. 5.03.
The formation of the partnership/joint venture and the creation and activities of Platinum are at the core of the controversy underlying Plaintiffs' request for declaratory judgment. Although the copies of the Rea Letter, David Letter, and Promissory Note were sent to Dockery in Texas, they made it to Texas by the mere fortuity of Plaintiffs' location in Texas rather than being purposefully directed to Texas by FSF with the expectation of invoking the benefits and protections of Texas law. Both the Rea Letter and David Letter were directed to individuals in states other than Texas (New Jersey and Georgia, respectively) who are not parties to this action. The Rea Letter contains only one reference to Dockery and his involvement with Seniority America, a business venture that is not at issue in this action, and the David Letter refers to Dockery only by implication. Neither letter makes any reference to the Dockery/Pickering partnership/joint venture, Platinum, or FSF. While both letters were written on FSF letterhead, there is no other indication that they were sent on behalf of FSF. Pickering refers to himself individually throughout the Rea Letter without ever indicating that he was writing on behalf of FSF. Pickering refers to himself, his partner, and his attorney as "we" in the David Letter, but does not refer to FSF, and even signs the letter as a representative of Platinum, not FSF. While the Promissory Note references Pickering and FSF as joint and several borrowers of funds to be used for Platinum, neither Pickering nor any other agent of FSF signed the Promissory Note, and Plaintiffs do not allege any intent of FSF to perform the Promissory Note. As such, there is no evidence that FSF took any affirmative action whatsoever in connection with the Promissory Note, much less that FSF purposefully availed itself of the benefits and protections of Texas law in connection with it. Finally, Plaintiffs do not allege, nor is there any other indication, that any of these documents were sent to Plaintiffs by FSF. Thus, the Rea Letter, David Letter, and Promissory Note are insufficient to confer personal jurisdiction over FSF for Plaintiff's request for declaratory judgment.
FSF's only other contact with Texas is the Dallas Meeting, at which Pickering allegedly acted on behalf of FSF. This contact directly relates to the controversy underlying Plaintiffs' request for declaratory judgment, but only as to the partnership/joint venture and not as to Platinum. As noted, Plaintiffs allege that at the Dallas Meeting the parties discussed, inter alia, FSF's involvement in the "preliminary investigation and initial establishment" of the retirement services business. Plaintiffs also allege that they and Pickering created Platinum, but there are no allegations that FSF was involved in the creation or operation of Platinum. Thus, the only reasonable inference is that FSF's role in the partnership/joint venture did not extend beyond initial planning stages — and even if it did eventually go beyond that point, there are no facts indicating that FSF had any contacts with Texas after the initial formation of the partnership/joint venture.
Plaintiffs' Second Amended Complaint at para. 4.07.
Although the Dallas Meeting constitutes a single contact, in this case that single contact is sufficient to confer jurisdiction because its nature and quality and the circumstances of its commission created a substantial rather than attenuated connection between FSF and Texas. See Latshaw, 167 F.3d at 211; Burger King Corp., 471 U.S. at 475-76. FSF did not merely enter into an alleged contractual relationship with both an individual and a corporate Texas resident via telephone or mail, but instead FSF, through its representative, was present in Texas to discuss the consummation of a business relationship. That single contact with Texas cannot be said to have been merely attenuated rather than substantial. In contrast, in Electric Gas Technology, Inc. v. Universal Communication Systems, Inc., a non-resident defendant's contact with Texas was considered attenuated despite its presence in Texas, because the defendant's visit was undertaken to perform due diligence for a proposed acquisition of a company not a party to and not related to the action before the court. Elec. Gas Tech., Inc. v. Universal Communication Sys., Inc., No. 3:03-CV-1798-G, 2003 WL 22838719, at *4-5 (N.D. Tex. Nov. 24, 2003). While the court there found the contact insufficient to confer jurisdiction because it did not relate to the claim brought, FSF's presence at the Dallas Meeting directly relates to and in fact gave rise to Plaintiffs' basis for seeking a declaratory judgment as to FSF. Thus, Plaintiffs have alleged a prima facie case of minimum contacts between FSF and Texas sufficient to confer personal jurisdiction for Plaintiffs' declaratory judgment claims, but only for those claims relating to the formation of the partnership/joint venture. Specifically, the Court may assert personal jurisdiction over FSF for Plaintiffs' declaratory judgment claims contained in points A, B, and C listed on page 8, supra, as well as Plaintiffs' claim regarding FSF's interest in and to the partnership/joint venture, but not for those claims contained in points D, E, F, G, H, and I, at page 8, supra.
3. Breach of Partnership/Joint Venture Agreement
Plaintiffs' second claim against FSF is for breach of the partnership/joint venture agreement. "[E]ntering into a contract with an out-of-state party, without more, is not sufficient to establish minimum contacts." Latshaw, 167 F.3d at 211. "Rather, in a breach of contract case, to determine whether a party purposefully availed itself of a forum, a court must evaluate `prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing.'" Id. (internal citation omitted).
In the present case, none of FSF's contacts with Texas is sufficient to confer personal jurisdiction over it for Plaintiffs' claim for breach of the partnership/joint venture agreement. Plaintiffs allege that the breach occurred when Pickering and FSF conducted or attempted to conduct the business of Platinum, issued shares of stock of Platinum, elected the board of directors of Platinum, and changed the name of the corporation without Plaintiffs' approval or consent. Plaintiffs also complain that Pickering and FSF ousted or attempted to oust Plaintiffs from the partnership/joint venture and/or the business of Platinum. The Court cannot assert personal jurisdiction over FSF for these claims because neither the Rea Letter nor the David Letter arises from or relates to the Pickering/Dockery partnership/joint venture agreement or the alleged breach thereof. While the Promissory Note relates to the partnership/joint venture as it would have provided funding for that entity, Plaintiffs fail to allege any factual connection between the unexecuted Note and the operation of Platinum that allegedly breached the partnership/joint venture agreement. Plaintiffs allege that the Dallas Meeting was held in part to discuss FSF's involvement in the formation of the partnership/joint venture, but Plaintiffs do not allege that the parties contemplated — at the Dallas Meeting or otherwise — FSF having any involvement in the operation of Platinum. Thus, no minimum contacts with Texas exist which confer personal jurisdiction over FSF for Plaintiffs' claim for breach of the partnership/joint venture agreement.
4. Request for Access to Books and Records of Platinum
As noted, FSF's alleged contacts with Texas did not extend to any actions involving the operation of Platinum. Thus, the Court cannot assert personal jurisdiction over FSF for Plaintiffs' request for access to books and records of Platinum.
5. Tortious Interference with Existing and Prospective Contractual Obligations
Plaintiffs' claim for tortious interference with existing and prospective contractual obligations is based on alleged interference with agreements between Plaintiffs and prospective industry partners and investors, as well as magazine advertisers. While the alleged effects of these intentional torts have been felt by Plaintiffs in Texas, "[f]oreseeable injury alone is not sufficient to confer specific jurisdiction, absent the direction of specific acts toward the forum." Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 212 (5th Cir. 1999). Plaintiffs have not alleged that the acts constituting tortious interference occurred in Texas. Furthermore, none of FSF's alleged contacts with Texas bear any relation to Plaintiffs' tortious interference claim. Thus, Plaintiffs have failed to present facts sufficient to confer jurisdiction over FSF for Plaintiffs' tortious interference claim.
6. Civil Conspiracy and Aiding and Abetting Breach of Fiduciary Duty
Plaintiffs' civil conspiracy and aiding and abetting breach of fiduciary duty claims are both predicated on FSF's alleged breach of the partnership/joint venture agreement. Civil conspiracy is defined as "a combination of two or more persons to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means." Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996). Conspiracy is a derivative tort that depends on participation in some underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable. Id. Thus, Plaintiffs' claim for aiding and abetting breach of fiduciary duty is merely a conspiracy claim with the underlying tort specifically identified.
The aiding and abetting breach of fiduciary duty claim relates to the breach of the partnership/joint venture agreement because Plaintiffs' assertion is that FSF contributed to Pickering's breach of fiduciary duty. That breach allegedly occurred when Pickering denied Plaintiffs their alleged rights to consent to operations of Platinum — the same conduct forming the basis of Plaintiffs' claim for breach of the partnership/joint venture agreement.
None of FSF's contacts with Texas arise out of or relate to any alleged conspiracy involving FSF. The Rea Letter predates the formation of the partnership/joint venture agreement and thus cannot be related to an alleged conspiracy to breach that agreement. The David Letter alludes to conversations between Pickering, Dockery, and their attorney. Even if Pickering was acting on behalf of FSF in those communications, FSF could not have conspired with Plaintiffs, and Plaintiffs do not allege that the attorney referred to in the letter had anything to do with the alleged conspiracy. While the Promissory Note may be seen as evidence of collaboration between Pickering and FSF, it does not evidence a conspiracy to undertake lawfully an unlawful purpose nor to undertake unlawfully a lawful purpose. Additionally, as noted, the Promissory Note does not aver any affirmative action on the part of FSF. Finally, the Dallas Meeting related solely to the initial formation of the partnership/joint venture and not to any of the torts by which Plaintiffs were allegedly harmed. Thus, the Court cannot assert personal jurisdiction over FSF for Plaintiffs' claims for civil conspiracy and aiding and abetting breach of fiduciary duty.
7. Fairness Factors
"Once a plaintiff has established minimum contacts, the burden shifts to the defendant to show the assertion of jurisdiction would be unfair." Wien Air Alaska, Inc., 195 F.3d at 215. The interests to balance in this determination are "the burden on the defendant having to litigate in the forum, the forum state's interests in the lawsuit, the plaintiff's interests in convenient and effective relief, the judicial system's interests in the lawsuit, the plaintiff's interests in convenient and effective relief, the judicial system's interest in efficient resolution of controversies, and the state's shared interest in furthering fundamental social policies." Id. To show that an exercise of jurisdiction is unreasonable once minimum contacts are established, a defendant must make a "compelling case" against it. Id. (quoting Burger King Corp., 471 U.S. at 477).
In the present case, the Court has found minimum contacts exist solely for Plaintiffs' request for declaratory judgment as related to the partnership/joint venture. Before asserting personal jurisdiction over FSF for that claim, the Court must undertake a fairness analysis. Three factors weigh in favor of Texas's assertion of personal jurisdiction over FSF for Plaintiffs' request for declaratory judgment. First, FSF has not argued that it would be burdened by having to litigate in this forum. Second, Texas has an interest in declaring Plaintiffs' rights as related to the partnership/joint venture because Dockery is a Texas resident and Dockery House is a Texas corporation with its principal place of business in Texas. Third, Plaintiffs have an interest in this case proceeding in Texas because Dockery resides in Texas and Dockery House is headquartered in Texas. One factor weighs against Texas's assertion of personal jurisdiction. Because the Court lacks personal jurisdiction over FSF with respect to all but one of Plaintiffs' claims, Plaintiff will be forced to pursue its other claims against FSF in another forum. It is not an efficient resolution of the controversies between Plaintiffs and FSF for the litigation between the same parties to be pursued in multiple fora. The balance of these factors, however, shows that FSF has not made a "compelling case" that the exercise of jurisdiction offends traditional notions of fair play and substantial justice. Therefore, to the extent that Plaintiffs have established a prima facie case of minimum contacts between FSF and Texas as to Plaintiffs' request for declaratory judgment, the Court will assert personal jurisdiction over FSF.
Note that in paragraph 8 of his affidavit, Pickering asserts: "It will be extremely inconvenient and expensive for me to defend myself in the State of Texas, including the travel and lodging costs and loss of time to devote to my work in Florida." Because Pickering does not refer to FSF, the Court must infer that Pickering was speaking on behalf of himself only and not FSF when he asserted this potential burden of litigating in Texas. Furthermore, Pickering is an individual defendant in this suit, and even if the Court were to dismiss all of Plaintiffs' claims against FSF, Pickering would nonetheless be forced to litigate in this forum.
Some courts have suggested that once a court has established personal jurisdiction with respect to one claim, it might be appropriate to exercise so-called pendent personal jurisdiction over claims arising from a common nucleus of operative facts. The exercise of pendent personal jurisdiction in this case, however, would not comport with the requirements of due process. See Stelax Indus., Ltd., No. 3:03-CV-923-M, 2004 WL 733844, at *8-9.
III. CONCLUSION
The Court grants in part and otherwise denies FSF's Motion to Dismiss for Lack of Personal Jurisdiction. All of Plaintiffs' claims against FSF are dismissed without prejudice for lack of personal jurisdiction except Plaintiffs' request for declaratory judgment to define the rights, duties, and responsibilities of the parties as related to: (1) the existence of the partnership/joint venture, (2) the right to manage the partnership/joint venture, (3) the right to conduct the day-to-day affairs of the partnership/joint venture, and (4) the interest of FSF in and to the partnership/joint venture.
The Court recognizes that this ruling does not promote the interests of efficiency or economy and encourages the parties to consider whether one of the following solutions would better serve those interests: (1) Plaintiffs should consider moving to dismiss without prejudice the claims that remain pending in this court and filing a new lawsuit in a forum where all of the claims against all Defendants can be tried together; or (2) FSF should consider waiving its contest to personal jurisdiction with respect to the claims dismissed in this Order so that FSF will not be forced to defend Plaintiffs' claims in two fora. The parties shall, by June 15, 2004, confer and submit a brief joint report detailing whether the parties have devised a solution that better promotes the interests of efficiency and economy.