Examination Management Services, Inc. v. Partners for Ins.

Full title: EXAMINATION MANAGEMENT SERVICES, INC. Plaintiff, v. PARTNERS FOR…

Court: United States District Court, N.D. Texas, Dallas Division

Date published: Feb 3, 2005

Civil Action No. 3:03-CV-1665-B (N.D. Tex. Feb. 3, 2005)

Opinion

Civil Action No. 3:03-CV-1665-B.

February 3, 2005

MEMORANDUM ORDER

JANE J. BOYLE, District Judge

Before the Court are 1) Defendants Partners for Insurance, L.L.C. ("PFI"), The Partners Group, Inc., Brian Erlich, and Jeffrey Slomovitz's (collectively, "Defendants") Motion to Dismiss for Lack of Personal Jurisdiction, Motion to Dismiss for Improper Venue, and Alternative Motion to Transfer Venue ("Defendants' Motion to Dismiss"), filed October 8, 2003; and 2) Defendants' Objections and Motion to Strike the Material in Support of Plaintiff's Response to Defendants' Motions ("Defendants' Objections" or "Motion to Strike"), filed November 12, 2003. After considering the pleadings, relevant briefing, and applicable law, for the reasons that follow the Court DENIES Defendants' Motion to Dismiss, OVERRULES Defendants' Objections, and DENIES Defendants' Motion to Strike.

I. Factual Background ¹

1 The background facts are derived from Plaintiff's Original Complaint (the "Complaint") and on undisputed facts gleaned from the parties' court papers and corresponding attachments. Where there may be a dispute over a stated fact the Court has so indicated by claiming the fact as one stated by that party to be true.

Plaintiff Examination Management Services, Inc. ("EMSI"), which operates principally out of Dallas, Texas, provides medical information and examination services to its customers, in part through independent contractors. (Pl.'s Orig. Compl. ["Compl."] ¶ 1; Pl.'s App. at 2). In exchange for services, EMSI allows independent contractors to use its name and service marks to service its customers. (Pl.'s App. at 3). Defendant Partners for Insurance, L.L.C. ("PFI") is a Michigan limited liability company that provides medical exams, drug screening and other services for insurance carriers, employers, and other groups located in Michigan. (Defs.' App. at 2). Defendant Jeffrey Slomovitz is PFI's President, and Defendant Brian Erlich is PFI's Vice-President. (Defs.' App. at 1, 40, 43; Pl.'s App. at 33). Both reside in Michigan. (Defs.' App. at 40, 43).

In January 2000, EMSI and PFI entered into an Independent Contractor Agreement (the "2000 Agreement") through which PFI performed medical services as an independent contractor for EMSI in Michigan. (Pl.'s App. at 3, 7-21). The next year, EMSI and all Defendants entered into a second Independent Contractor Agreement (the "2001 Agreement"), a Separate Guaranty Agreement (the "Guaranty Agreement"), and an Asset Purchase Agreement through which PFI acquired all of EMSI's assets in EMSI's Detroit, Michigan office. (Defs.' App. at 2-3); (Pl.'s App. at 3). EMSI alleges that in early 2003 Defendants stopped performing under the 2001 Agreement, in violation of the termination clause of the contract providing that either party could terminate the relationship after five years by giving 90 days notice. (Pl.'s App. at 5, 29). Defendants also allegedly indicated their intent to not comply with the Guaranty Agreement. (Pl.'s App. at 5).

EMSI filed this lawsuit against Defendants on July 23, 2003 for breach of contract and declaratory relief arising out of Defendants' alleged improper termination of the 2001 Agreement and Defendants' alleged statement of intent to not comply with the Guaranty Agreement. (Compl. ¶¶ 14-22). On September 8, 2003, PFI filed suit against EMSI in Michigan state court (the "Michigan Lawsuit"), alleging that EMSI, among other things, violated the Michigan Franchise Investment Act, committed fraud, and breached contracts. (Defs.' App. at 49, 52-59). EMSI has filed a motion to dismiss the Michigan Lawsuit based on the instant, first-filed suit in Texas. (Pl.'s App. at 44-94).

II. Motion to Dismiss for Lack of Personal Jurisdiction

A. Legal Standard

Although the plaintiff bears the burden of proof to show that a nonresident defendant is subject to the Court's jurisdiction, it need only establish a prima facie case of jurisdiction; poof by a preponderance of the evidence is not required. Jones v. Petty-Ray Geophysical, Geosource, Inc., 954 F.2d 1061, 1067 (5^th Cir. 1992).² All conflicts between the facts contained in the parties' affidavits and other documentation must be resolved in the plaintiff's favor. Cent. Freight Lines, Inc. v. APA Transp. Corp., 322 F.3d 376, 380 (5th Cir. 2003).

2 "The Court may determine the jurisdictional issue by receiving affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery." Stuart v. Spademan, 772 F.2d 1185, 1192 (5^th Cir. 1985).

In establishing jurisdiction, two preconditions must be met: (1) the nonresident must be amenable to service of process under Texas's long-arm statute; and (2) the assertion of jurisdiction over the nonresident must comport with the Due Process Clause of the Constitution. Jones, 954 F.2d at 1067. Because Texas's long-arm statute has been held to extend to the limits of due process, the Court need only determine whether jurisdiction over Defendants is constitutionally permissible. Id. at 1067-68 (citing Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990)). To meet the federal constitutional test of due process, two elements must be satisfied: (1) the defendant must have purposefully availed itself of the benefits and protections of the forum state by establishing "minimum contacts" with that state such that it should reasonably anticipate being haled into court there; and (2) the exercise of jurisdiction over the defendant must not offend traditional notions of fair play and substantial justice. Jones, 954 F.2d at 1068.

The "minimum contacts" test can be met by contacts giving rise to either general or personal jurisdiction. Gundle, 85 F.3d at 205. Specific jurisdiction exists when the nonresident defendant's contacts with the forum state arise from, or are directly related to, the cause of action. Id. (citation omitted). "General personal jurisdiction is found when the nonresident defendant's contacts with the forum state, even if unrelated to the cause of action, are continuous, systematic, and substantial." Marathon Oil Co. v. Ruhrgas, 182 F.3d 291, 295 (5^th Cir. 1999) (citation omitted). In either context, the Court considers the totality of the circumstances in conducting the minimum contacts analysis; no single factor is determinative. Stuart v. Spademan, 772 F.2d 1185, 1192 (5^th Cir. 1985). The analysis ultimately reduces to whether the nonresident defendant purposefully availed itself of the privilege of conducting business in this state, thereby invoking the benefits and protections of Texas law. Id. at 1191.

B. General Jurisdiction

Even EMSI does not contend that Defendants' actions in this state were so "systematic and continuous" such to confer general jurisdiction. None of the Defendants is a Texas resident, maintains offices, mailing address or telephone numbers in Texas, employs anyone in Texas, owns, rents, or leases any real property in Texas, pays taxes in Texas, or maintains any bank accounts in this state. (Defs.' App. at 5, 40-44). The Court thus finds that there is no basis upon which to assert general jurisdiction over Defendants.

C. Specific Jurisdiction

EMSI relies upon the following evidence in support of its contention that Defendants purposefully established contacts in Texas:

• In late 1999, Defendants Erlich and Slomovitz contacted EMSI in Texas seeking to become EMSI's independent contractor in Michigan. (Pl.'s App. at 3).

• Erlich and Slomovitz, on behalf of PFI, engaged in extensive negotiations with an EMSI representative located in Texas which culminated in the 2000 Agreement. (Pl.'s App. at 3).

• After providing services pursuant to the 2000 Agreement for a year or more, Slomovitz and Erlich again contacted EMSI representatives in Texas to inquire about purchasing EMSI's office assets and operations in Michigan, and, after extensive negotiations, EMSI and PFI entered into the Asset Purchase Agreement, and EMSI and all Defendants entered into the 2001 Agreement and the Guaranty Agreement. (Pl.'s App. at 3).

• Both the 2000 and 2001 Agreements expressly state that they are governed by Texas law. (Pl.'s App. at 14-15, 31).

• Slomovitz and Erlich, individually and on behalf of PFI and Partners Group, extensively negotiated the 2001 Agreement and the Guaranty Agreement with EMSI representatives located in Texas. (Pl.'s App. at 3).

• Slomovitz and Erlich traveled to Texas on multiple occasions in connection with the Guaranty Agreement and the provision of services under the 2001 Agreement; (Pl.'s App. at 3).

• PFI, through Slomovitz and Erlich, submitted bills for services to EMSI in Dallas, Texas on a regular basis from January 2000 through July 2003. (Pl.'s App. at 4).

• PFI received payments for the services of Slomovitz and Erlich on a continuous basis from EMSI's Dallas, Texas office under the 2000 and 2001 Agreements. (Pl.'s App. at 4).

• PFI, through Slomovitz and Erlich, continuously communicated by telephone and e-mail with EMSI's representatives in Dallas, Texas regarding the services to be performed under the 2000 and 2001 Agreements. (Pl.'s App. at 4).

• PFI through Slomovitz and Erlich, received daily support from EMSI's customer service representatives in Dallas, Texas from January 2000 through July 2003. (Pl.'s App. at 4).

• PFI, through Slomovitz and Erlich, directly benefitted from the credentialing, certification, and training provided by EMSI's Dallas, Texas office to PFI employees and subcontractors. (Pl.'s App. at 4).

• PFI requested and was provided with customer exam forms and other supplies directly from or through EMSI's Dallas, Texas office. (Pl.'s App. at 4).

• PFI regularly sought and accepted business referred from EMSI's offices in Waco and Dallas, Texas (Pl.'s App. at 3-4).

On the other hand, Defendants contend that their contacts arising out of their alleged failure to perform under the 2001 and Guaranty Agreements occurred in Michigan, not Texas. Specifically, Defendants maintain that:

• Negotiations for the 2001 and Guaranty Agreements were initiated by EMSI and that EMSI solicited PFI to enter into a contractual relationship. (Defs.' App. at 2).

• The 2001 and Guaranty Agreements provided that PFI would have the exclusive right to use "EMSI's name, symbols, service marks and system of operations" exclusively in Michigan and would perform services in Michigan for Michigan residents. (Defs.' App. at 3).

• The only action PFI took that was directed at Texas was to send "order tickets" to Texas so that EMSI "could handle the `administrative' task of billing the Michigan customers." (Defs.' App. at 12).

Defendants admit, however, that Slomovitz and Erlich traveled to Texas on November 17, 2002 to observe EMSI's operations in Texas. (Defs.' Supp. App. at 2, 5). EMSI claims that "[o]ne of the purposes of the meetings was to familiarize Erlich and Slomovitz with how EMSI conducts business so that Defendants could better serve EMSI's customers under the 2001 Agreement." (Pl.'s Supp. App. at 2). Erlich again traveled to Texas in April 2002 on behalf of PFI to observe the annual trade show sponsored by EMSI. (Defs.' Supp. App. at 5). According to EMSI, Erlich and his father met with John Reynolds, EMSI's Regional Vice President, and discussed the problems Defendants were having in connection with their performance of services under the 2001 Agreement. (Pl.'s Supp. App. at 3).

Construing all factual conflicts in EMSI's favor, as the Court must, the evidence shows that negotiations regarding the agreements at issue in this lawsuit took place in part in Texas, that PFI regularly sought and accepted business referred from EMSI, that PFI requested and was provided with supplies sent directly from or through EMSI's Texas office, and that Slomovitz and Erlich traveled to Texas in connection with PFI's provision of services under the agreements between the parties.³ State Street Cap. Corp. v. Dente, 855 F. Supp. 192, 196 (S.D. Tex. 1994) (finding personal jurisdiction where defendants entered into 3-year relationship with plaintiff involving continuing duties and sustained contacts with Texas company). Furthermore, the fact that both the 2000 and 2001 Agreements expressly state that they are governed by Texas law reflects that Defendants deliberately made contacts with Texas and could reasonably foresee litigation there. Id. (finding that choice-of-law clause, coupled with the 3-year relationship defendants established with Houston office "reinforce[d] their deliberate affiliation with the forum state. . . ."); Ganis Corp. of Cal. v. Jackson, 822 F.2d 194, 197 (1^st Cir. 1987) ("While not conclusive, a [choice of law provision] further tips the scales in favor of [plaintiff] since a contractual provision adopting a forum state's laws combined with the five-year duration of the relationship `reinforce[s] [the nonresident defendant's] deliberate affiliation with the forum State and the reasonable foreseeability of possible litigation there.'") (quoting Burger King Corp., 471 U.S. at 482). All of Defendants' activities, taken together, establish that they should have reasonably anticipated being haled into court in Texas. Burger King Corp., 471 U.S. at 474-75.

3 As EMSI points out, while it is Defendants' position in this lawsuit that "the terms reflected in the [2001 Agreement] are not terms of "exacting regulation . . ." (Defs.' Memo. in Supp. Mot. at 20-21), in the Michigan Lawsuit Defendants asserted that "EMSI controlled every material aspect of [PFI's] business." (Pl.'s App. at 99).

Next, the Court must determine whether the assertion of personal jurisdiction would comport with traditional notions of "fair play and substantial justice" by evaluating (1) the burden on the defendants, (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. See Electrosource, Inc. v. Horizon Battery Tech., Ltd., 176 F.3d 867, 874 (5^th Cir. 1999).

In evaluating the first factor, the Supreme Court has stated that when the defendant has conducted some business activity in the forum state, "it usually will not be unfair to subject [the defendant] to the burdens of litigating in another forum for disputes relating to such activity." Burger King Corp., 471 U.S. at 474. Although Defendants claim that they would be burdened by having to litigate in Texas because Defendants, their witnesses, and relevant documents are located in Michigan, Defendants previously sent representatives to Texas and are already represented by local counsel, so Defendants' burden will not be great. See e.g. Fossil, Inc. v. Knicks Mend-Rite Co., 1998 WL 158674, at *3 (N.D. Tex. March 25, 1998) (finding that Defendant would not be unduly burdened by litigating in Texas where it had obtained local counsel in Texas).

Second, Texas has an interest in "providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors." Burger King Corp., 471 U.S. at 473. And, Texas generally respects a parties' contractual choice-of-law clause unless the contract bears no reasonable relation to the chosen state or the law of the chosen state violates a fundamental public policy of Texas. Exxon Corp. v. Burglin, 4 F.3d 1294, 1298 n. 5 (5^th Cir. 1993). Here, the 2001 Agreement contains a choice-of-law clause designating Texas as the forum state. As discussed above, that agreement is reasonably related to Texas, and the application of Texas law obviously would not violate a fundamental policy of Texas.

Next, the Court finds that EMSI has an interest in obtaining convenient relief in Texas — its documents, witnesses, and attorneys are all here. See Fossil, 1998 WL 158674, at *3. The fourth factor, judicial efficiency, is neutral. Although Defendants claim that efficiency would be served if this suit were dismissed and all claims between the parties litigated in the Michigan Lawsuit, EMSI has moved to dismiss the Michigan Lawsuit and points out that any claims asserted by Defendants in the Michigan Lawsuit can be raised here by way of counterclaim. The Court additionally notes that this case was filed first. As for the shared interest of the states in furthering fundamental substantive social policies, the Court finds that this factor, too, is neutral. Although Defendants have exhaustively argued that Michigan's interests are implicated by the applicability of the Michigan Franchise Act, they have failed to show why jurisdiction in Texas would be unconstitutional. Burger King Corp., 471 U.S. at 483. In short, the collective interest of the several states appears indifferent to whether this case proceeds in a Texas or Michigan court.

For the reasons stated above, the Court finds that personal jurisdiction over Defendants would not offend traditional notions of fair play and substantial justice. Defendants' motion to dismiss for lack of personal jurisdiction is therefore DENIED.

III. Motion to Dismiss for Improper Venue

A. Legal Standard

Where subject matter jurisdiction is grounded solely on the diverse citizenship of the parties, venue is proper, among other places, in "a judicial district in which a substantial part of the events or omission giving rise to the claim occurred. . . ." 28 U.S.C. § 1391(a). This does not mean that venue must be fixed in a district in which a majority of events giving rise to the claim occurred, but rather that it may be established in any judicial district in which a substantial amount of events occurred. CIT Group/Commercial Serv., Inc. v. Romansa Apparel, Inc., 2003 WL 169208, at *3 (N.D. Tex. Jan. 21, 2003) ("[T]here may be more than one district in which a substantial part of the events giving rise to the claim occurred, and . . . venue would be proper in each such district.") (quoting Sidco Indus., Inc. v. Wimar Tahoe Corp., 768 F. Supp. 1343, 1346 (D. Or. 1991).

When a defendant raises the issue of proper venue, the plaintiff must identify facts establishing that venue is appropriate in the district in which the action is pending. Advance Dynamics Corp. v. Mitech Corp., 729 F.Supp. 519, 519 (N.D. Tex. 1990). In deciding whether venue is proper, the Court accepts uncontroverted facts alleged in the complaint as true and resolves conflicts in the parties' affidavits in favor of the plaintiff. McCaskey v. Cont'l Airlines, Inc., 133 F.Supp. 2d 514, 523 (S.D. Tex. 2001). When a case is filed laying venue in the wrong division or district, the district court may either dismiss the case or transfer it to any district or division of proper venue. 28 U.S.C. § 1406(a).

B. Application

Plaintiff alleges that Defendants negotiated the contracts at issue with an EMSI representative located in Texas, that Defendants took trips to Texas in connection with the contracts, that EMSI performed under the contracts in Texas, that Defendants regularly communicated with EMSI in Texas via mail, e-mail, and telephone, and that the effects of Defendants' alleged breach — in the form of monetary damages and customer dissatisfaction — were felt by EMSI in Texas. (Pl.'s App. at 2-4; Pl.'s Supp. App. at 6-8, 12).

In TIG Insurance Company v. NAFCO Insurance Company, Ltd., the court found that a substantial part of the events giving rise to the claims at issue took place in Texas where the plaintiff's end of interstate contract negotiations, which involved an exchange of communications between the plaintiff and a nonresident defendant, occurred in Texas, the contract was issued from Texas, and events which later gave rise to the dispute in question occurred in Texas. 177 F.Supp.2d 561, 567 (N.D. Tex. 2001). Similarly, in H.D. Vest Investment Securities, Inc. v. Schulz, the court found that venue was proper in the Northern District of Texas because that was where the stock trades at issue were processed, account applications were approved, settlement checks issued, and plaintiff executed the contract. 2002 WL 31016529, at * 2 (N.D. Tex. Sept. 6, 2002).

Like TIG and H.D. Vest, a substantial part of the events in this case occurred in this district, including communications and negotiations between the parties, daily business operations, mailing of bills and payments, meetings between the parties, and the handling of complaints flowing from Defendants' alleged breach of the agreements at issue. While many of the relevant events giving rise to EMSI's claims might have occurred in Michigan, a substantial part of them also occurred in Texas, making the Northern District of Texas a judicial district of proper venue. Defendants' motion to dismiss for improper venue is accordingly DENIED.

IV. Motion to Transfer Venue

A. Legal Standard

Even where a court has personal jurisdiction over a defendant, and venue is proper, it may nevertheless transfer a case to another district or division where the case could have been brought, if transfer would be convenient for the parties and in the interest of justice. 28 U.S.C. § 1404(a).⁴ The purpose of this rule is to "protect litigants, witnesses, and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (quoting Cont'l Grain Co. v. The FBL-585, 364 U.S. 19, 26, 27 (1960)). Transfer under § 1404 is discretionary with the district court. Jarvis Christian Coll. v. Exxon Corp., 845 F.2d 523, 528 (5^th Cir. 1988).

4 Although Defendants also moved for a transfer to the Eastern District of Michigan on grounds of improper venue under 28 U.S.C. § 1406(a), the Court will only consider Defendants' motion to transfer under § 1404(a) in light of the Court's finding that the Northern District of Texas is not an improper venue.

In deciding whether to transfer a case, a court must consider a mix of private and public interests, keeping in mind that the plaintiff's choice of forum should generally be respected. Walter Fuller Aircraft Sales, Inc. v. Republic of Philippines, 965 F.2d 1375, 1389 (5^th Cir. 1992). Among the private interests to be considered are the ease of access to sources of proof, the availability of compulsory process for the attendance of unwilling witnesses, and the cost of obtaining the attendance of willing witnesses. Id. Public interests to be considered include the relative congestion of the court's docket, the interest in having controversies resolved in a local forum, the familiarity of the court with the governing law, and the unfairness of burdening citizens in an unrelated forum with jury duty. Id.

The burden of demonstrating why a transfer of venue is appropriate rests with the movant. Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5^th Cir. 1989). A plaintiff's choice of forum is given "substantial weight." Enserch Int'l Exploration, Inc. v. Attock Oil Co., Ltd., 656 F.Supp. 1162, 1167 n. 15 (N.D. Tex. 1987) (citing Stabler v. New York Times, Inc., 569 F.Supp. 1131, 1137 (S.D. Tex. 1983)). A case should not be transferred simply to shift the burden of inconvenience from the defendant to the plaintiff. Van Dusen, 376 U.S. at 646.

B. Application

First, the Court weighs heavily the fact that EMSI has chosen to litigate its claims in the Northern District of Texas. Walter Fuller, 965 F.2d at 1389; Enserch, 656 F.Supp. at 1167 n. 15. Next, considering the accessibility and location of sources of proof, the Court notes that both EMSI and Defendants claim that their evidence lies chiefly in Texas and Michigan, respectively. (Pl.'s App. at 5, Pl.'s Supp. App. at 8; Defs.' App. at 41, 44). Thus, this factor is neutral, and the Court should not transfer this case if the only result would be a shift of inconvenience from Defendants to EMSI. Van Dusen, 376 U.S. at 646. Next, the Court looks to the availability of compulsory process for the attendance of unwilling witnesses. See Walter Fuller, 965 F.2d at 1389. Defendants, who bear the burden of proof, have not alleged that any witnesses are unwilling. And as for the cost of obtaining the attendance of willing witnesses, the Court finds, again, that this factor is neutral in light of the parties' competing claims that their preferred forum is more convenient for their witnesses. (Pl.'s App. at 5; Pl.'s Supp. App. at 8; Defs.' App. at 7, 41, 44). In short, the Court is not persuaded that private interests compel a transfer of this case to Michigan.

Nor do the public factors. A comparison of the dockets of both courts reveals that they are equally congested — Defendants have shown that the median time interval from filing to trial in civil cases during or after pretrial in the Eastern District of Michigan is 13.6 months compared to 13.4 months in the Northern District of Texas. (Defs.' App. at 75). With respect to the governing law, the Court declines to opine at this time with respect to which law controls this case, as that matter is the subject of EMSI's pending declaratory judgment. Nevertheless, Defendants concede that the 2001 Agreement provides that Texas law shall govern and that this is a public interest factor weighing in favor of maintaining venue in Texas. (Defs.' Mot. at 34). In short, Defendants have identified no factor weighing strongly in favor of transfer to Michigan, and their motion to do so is accordingly DENIED.

V. Motion to Strike

Defendants have also objected to and moved to strike certain evidence relied on by EMSI in support of its response to Defendants' motion to dismiss. Specifically, Defendants object to certain testimony contained in the affidavit of John Reynolds and the e-mail from Anthony Falisi that is attached to the Reynolds Affidavit. As the Court did not consider the Falisi e-mail in its determination of Defendants' motion to dismiss, the Court denies Defendants' motion to strike that piece of evidence as moot.

Defendants seek to strike testimony provided in the Reynolds Affidavit on the grounds that the affidavit contains statements that are hearsay, are made without personal knowledge, lack foundation, and assume facts not in evidence. Defendants specifically object to Reynolds's statements that Defendants contacted EMSI in Texas to form the 2000 and 2001 Agreements, that Slomovitz and Erlich traveled to Texas on multiple occasions in connection with the Guaranty Agreement and the 2001 Agreement, and that PFI, through Slomovitz and Erlich, continuously communicated by telephone and e-mail with EMSI's representatives in Dallas, Texas regarding the services to be performed under the 2000 and 2001 Agreements.

Since the filing of Defendants' objections, EMSI submitted a supplemental affidavit of John Reynolds ("Supplemental Affidavit"). The Court finds that when the Supplemental Affidavit is considered together with the Reynolds Affidavit, Defendants' objections are unfounded. For example, in the Supplemental Affidavit Reynolds makes clear that as EMSI's Regional Vice President he was personally involved in the negotiation of EMSI's relationship with Defendants that ultimately led to the agreements at issue between the parties. (Pl.'s Supp. App. at 2). Furthermore, while Reynolds resides in Pennsylvania, he testifies that he acted as a liaison between EMSI's Dallas headquarters and Defendants. (Pl.'s Supp. App. at 2). And, Reynolds states that he was personally present during EMSI's meetings with Slomovitz and Erlich which took place in 2002 and 2003 and that he has traveled to EMSI's Dallas headquarters on at least 10 separate occasions since January 2000. (Pl.'s Supp. App. at 3). Based on these averments and Reynolds's role as EMSI's Regional Vice President, the Court finds that Reynolds has adequately established his personal knowledge regarding communications exchanged and contacts between EMSI's Dallas office and Defendants, and that the statements are not hearsay. Accordingly, the Court OVERRULES Defendants' objections and DENIES their motion to strike the Reynolds Affidavit.

VI. Conclusion

For the reasons stated in this order, the Court DENIES Defendants' Motion to Dismiss, OVERRULES Defendants' Objections and DENIES Defendants' Motion to Strike.

SO ORDERED.