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CAUSE NO

VIEWS: 4 PAGES: 16

									                          CAUSE NO. 10-945-C26


PURITAN FINANCIAL GROUP, INC.  §           IN THE DISTRICT COURT
                               §
v.                             §
                               §           OF WILLIAMSON COUNTY, TEXAS
MICHAEL FISHER, THE ESTATE     §
SERVICES GROUP, and AMERICAN §
ASSOCIATION OF FAMILY BENEFITS §           26th JUDICIAL DISTRICT


                SUBJECT TO SPECIAL APPEARANCE
                DEFENDANTS’ MOTION TO DISMISS
              FOR LACK OF PERSONAL JURISDICTION
         AND ALTERNATIVELY PLEA FOR ABATEMENT OR STAY
                  AND POINTS AND AUTHORITIES


TO THE HONORABLE JUDGE OF SAID COURT:

      COME NOW Defendants Michael Fisher, The Estate Services Group and

American Association of Family Benefits (hereinafter “Fisher”), in the above

styled and numbered cause and subject to Fisher’s Special Appearance

moves to dismiss the claims asserted against them in Plaintiff’s Verified

Original Petition for lack of personal jurisdiction and in the alternative moves

for abatement or stay based on prior pending action.

      Fisher does not resident in Texas and lacks sufficient contacts with

Texas to give rise to either specific or general jurisdiction. Further, the

imposition of personal jurisdiction over Fisher by a Texas court would offend

traditional notions of fair play and substantial justice. Guardian Royal

Exchange Assur., Ltd. V. Englsh China Clays, P.L.C., 815 S.W. 2d 223 (Tex.


DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION            1
AND PLEAING ALTERNATIVELY FOR ABATEMENT OR STAY AND POINTS AND AUTHORITIES
1991) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105

S.Ct. 2174, 2183-84, 85 L.Ed. 2d 528 (1985)).

      In the alternative, Fisher moves for abatement, or stay, of the

proceedings pursuant to a prior pending action. The imposition of having to

defend two causes of action involving the same parties in the same capacity

and the same subject matter is vexatious and oppressive and would offend

principles of wisdom and justice.

      In support of this motion Fisher states and affirms as follows:


                                    I. FACTS


      Plaintiff concedes in Paragraph 3 of Plaintiff’s Verified Original Petition

that Fisher is not a resident of Texas; does not maintain a regular place of

business in Texas; and does not have a designated agent for service in

Texas. Fisher is a permanent resident of the United States; and is domiciled

in California, not Texas (Fisher Decl., ¶¶ 1 and 2, incorporated hereto, and

attached as Exhibit A). Fisher has never been a resident of Texas (Fisher

Decl., ¶ 3).

      Fisher is President of R. D. Financial Services, Inc., a California

corporation that does business as The Estate Services Group (Fisher Decl., ¶

4). The American Association of Family Benefits does not do business in

Texas and never has (Fisher Decl., ¶ 5).     Fisher is not required to maintain,

and does not not maintain registered agent for service in Texas (Fisher

DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION            2
AND PLEAING ALTERNATIVELY FOR ABATEMENT OR STAY AND POINTS AND AUTHORITIES
Decl., ¶ 7). Fisher is not currently, and never has, been engaged in

business in Texas (Fisher Decl., ¶ 8). Fisher has never been employed in

Texas, nor has he engaged in business in Texas (Fisher Decl., ¶ 9). Fisher

has never owned or leased real or personal property in Texas (Fisher Decl.,

¶ 10).   He has never maintained a bank account in Texas (Fisher Decl., ¶

11). Fisher has never maintained an office, address, directory listing,

answering service or telephone number in Texas (Fisher Decl., ¶ 12). He

has never maintained a place of business, an office, or other facilities in

Texas (Fisher Decl., ¶ 13). Fisher has never paid any taxes to the state of

Texas (Fisher Decl., ¶ 14). With the exception of this lawsuit, Fisher has

never been a defendant in a lawsuit filed in state or federal court in Texas

(Fisher Decl., ¶ 15). The only time that Fisher has been personally present

in Texas was when he traveled there in April or May of 2005 Those trips

occurred more than 5 years ago (Fisher Decl., ¶ 16). Fisher has no business

or personal reasons to travel to, or to be in, Texas (Fisher Decl., ¶ 17). Any

travel to Texas in connection with this lawsuit would be a significant

inconvenience and burden to Fisher (Fisher Decl., ¶ 18), contrary to

requirements of fair play and substantial justice.



                     II. ARGUMENT AND AUTHORIES


A.    This Court Lacks Personal Jurisdiction Over Fisher.


DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION            3
AND PLEAING ALTERNATIVELY FOR ABATEMENT OR STAY AND POINTS AND AUTHORITIES
      When a nonresident defendant files a motion to dismiss for lack of

person jurisdiction, the plaintiff has the burden to prove the existence of

personal jurisdiction over the defendant. See Holland, 221 S.W.3d at 642;

Jansen v. Fitzpatrick, 14 S.W.3d 426, 431 (Tex. App.--Houston [14th Dist.]

2000; Tex. Ass’n. of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.

1993). Fisher is not nor has he ever been a resident of Texas (Fisher Decl., ¶

3). Fisher is instead a permanent resident of the United States, domiciled in

California (Fisher Decl., ¶¶ 1 and 2). Accordingly, Plaintiff must prove that

Fisher purposefully established “minimum contacts” with Texas and that the

assertion of jurisdiction over Fisher in Texas would not “offend traditional

notions of fair play and substantial justice. Interational Shoe Co. v.

Washington, 326 U.W. 31, 316, S.Ct. 154; Guardian Royal, 815 S.W. 2d at

227. No personal jurisdiction exists unless Fisher purposefully availed

himself to the privilege of conducting activities within the forum state to

establish sufficient contact with the forum to confer personal jurisdiction.

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76, 105 S. Ct. 2174,

2183-84 (1985)); Xenos Yuen v. Fisher, 227 S.W.3d 193, 200 (Tex. App.--

Houston [1st Dist.] 2007, no pet.).

      When considering whether a defendant has purposefully availed

himself of a forum by establishing minimum contacts with that forum, the

court considers whether the defendant’s contact give rise to either general

jurisdiction or specific jurisdiction. Guardian Royal, 815 S.W. 2d at 226;

DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION            4
AND PLEAING ALTERNATIVELY FOR ABATEMENT OR STAY AND POINTS AND AUTHORITIES
Helicopteros Nacionales do Colombia, S.A. v. Hall, 466 ****; Preussag

Aktiengesellschaft, 16 S.W.3d at 114. To establish specific jurisdiction, the

plaintiff must show that the defendant purposefully directed his activities at

the forum, and the litigation must result from alleged injuries that “arise out

of or relate to” defendant’s activities directed at the forum. Guardian Royal,

815 S.W. 2d at 228; BMC Software, 83 S.W.3d at 796; Retamco Operating,

Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009); PHC-Minden,

L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 167 (Tex. 2007). An act or

acts “by which the defendant purposefully avails himself of the privilege of

conducting activities” in Texas “thus invokes the benefits of Texas law, and

constitutes sufficient contacts with Texas to confer personal jurisdiction.

Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex.

2005) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240

(1958); and Burger King, 471 U.S. 472-73, 475. In addition, the activities

must be purposeful, not random or isolated acts. Michiana Easy Livin'

Country, 168 S.W.3d at 785; First Oil PLC, 2008 WL 2186781, at *12. As a

result, a single act may give rise to only attenuated connection with the

forum that would be insufficient to support a court’s exercise of personal

jurisdiction and is inconsistent with the traditional notions of fair play and

substantial justice as contemplated by Int’l Shoe v. Washington, 326 U.S.

310, 316; PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 167

(Tex. 2007); O’Brien v. Lanpar Co., 399 S.W.2d 340, 342 (Tex. 1966)

DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION            5
AND PLEAING ALTERNATIVELY FOR ABATEMENT OR STAY AND POINTS AND AUTHORITIES
(quoting Int’l Shoe, 326 U.S. at 316 (1945); Retamco Operating, Inc. v.

Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009); PHC-Minden, 235

S.W.3d at 166; Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574

(Tex. 2007).

      Alternatively, a plaintiff seeking to establish general jurisdiction might

attempt to show that the defendant has “continuous and systematic”

contacts with the forum state. Guardian Royal, 815 S.W. 2d at 228;

Schlobohm v. Schapiro, 784 S.W. 2d 355, 357 (Tex. 1990);Preussag

Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 114 (Tex. App.--Houston

[1st Dist.] 2000, pet. dism'd w.o.j.). To support a finding of general

jurisdiction, the defendant must have substantial contacts with the forum

state. General jurisdiction therefore requires much stronger evidence of

contacts with the forum than specific jurisdiction. See Michiana Easy Livin'

Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005). For example, in

Helicopteros, 466 U.S. at 416, the Supreme Court concluded that a

defendant which had purchased approximately 80 percent of its helicopter

fleet, spare parts, and accessories for more than $4 million from Bell

Helicopter in Ft. Worth, sent prospective pilots to Ft. Worth for training, sent

maintenance personal to Ft. Worth for technical consultation, and received

over $5 million in payments drawn on a bank in Houston was not subject to

general jurisdiction in Texas.

      1.    No specific Personal Jurisdiction Exists Over Fisher in Texas.

DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION            6
AND PLEAING ALTERNATIVELY FOR ABATEMENT OR STAY AND POINTS AND AUTHORITIES
      In Plaintiff’s Verified Original Petition, Plaintiff attached Exhibits “A-E,”

which by Plaintiff’s own admission, are contacts made by Fisher to customers

in California and Arizona. Plaintiff’s Exhibits “A - E” therefore, fail to

establish that Fisher purposefully directed his activities at the forum state.

      Additionally, Plaintiff attached Exhibit “F” to its Verified Original

Petition and made a global allegation that Exhibit “F” was distributed by

Fisher to some or all of the names on Plaintiff’s client list. Plaintiff does not

indicate whether distribution included the forum state of Texas. Therefore,

Plaintiff’s Exhibit “F” fails to establish that Fisher purposefully directed his

activities at the forum state.

      Exhibit “G” to Plaintiff’s Verified Original Petition and again by

Plaintiff’s own admission, was distributed in California and Arizona.

Therefore, Plaintiff’s Exhibit “G” also fails to establish that Fisher

purposefully directed his activities at the forum state.

      Plaintiff’s Verified Original Petition identifies a single contact in Texas.

In paragraph 13 of Plaintiff’s Verified Original Petition, Plaintiff alleges an

isolated contact in the forum state attested to by Plaintiff’s agent and

attached as Exhibit “H” to Plaintiff’s Verified Original Petition. Fisher denies

that this contact took place (See, Fisher’s Affidavit ¶ 14, incorporated

hereto, and attached as Exhibit B). Similarly, Plaintiff’s Exhibit “H” fails to

establish that Fisher purposefully directed his activities at the forum state.



DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION            7
AND PLEAING ALTERNATIVELY FOR ABATEMENT OR STAY AND POINTS AND AUTHORITIES
      As described in more detail above, Fisher has had almost no contact

with the state of Texas, other than a trip there to hire an attorney in April or

May of 2005, more than5 years ago. Plaintiff’s petition on its face fails to

show the existence of specific jurisdiction over Fisher, and Fisher has

submitted evidence demonstrating his lack of contact with the state of Texas

(Fisher Decl. ¶¶ 1-18). Accordingly, specific jurisdiction over Fisher is

lacking in this case.

      2.    No General Personal Jurisdiction Exists Over Fisher in Texas.

      The contacts for general jurisdiction are considerably more demanding

and requires proof of contacts with the forum state such that defendants

contacts are continuous and systematic. Preussag Aktiengesellschaft, 16

S.W.3d at 114 (citing CSR, Ltd., 925 S.W. 2d at 595 114); see also

Helicopteros, 466 U.S. 408 (no general jurisdiction despite extensive

business contacts with Texas). Here, plaintiff bears the burden of proving

that Fisher’s contacts with the state of Texas are so “continuous” and

“systematic,” that a Texas court has personal jurisdiction over him

regardless of the subject of the suit, and despite the fact that Fisher has

never been a resident of Texas. But as noted above, Fisher has virtually no

contact with the state of Texas and has never been a resident of Texas

(Fisher Decl., ¶¶ 3 and 14). Accordingly, there is not the sort of “continuous

and systematic” contacts required for the existence of general jurisdiction.

See, e.g. Southern v. Glenn, 677 S.W. 2d 576, 583 (Tex. App. –San Antonio

DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION            8
AND PLEAING ALTERNATIVELY FOR ABATEMENT OR STAY AND POINTS AND AUTHORITIES
1984, writ ref’d n.r.e.) (upholding trial court’s dismissal for lack of personal

jurisdiction despite evidence that defendant resided in Texas, voted in the

1976 presidential election in Texas, and held a Texas driver’s license); Luker

v. Luker, 776 S.W. 2d 624, 625026 (Tex. App. –Texarcana 1989, writ

denied) (no minimum contacts where cause of action arose five months after

defendant ceased to be a Texas resident, even though defendant continued

to hold a Texas driver’s license, traveled to Texas three or four times a year,

and financed and automobile in Texas); Vosko v. Chase Manhattan Bank,

N.A. 909 S.W. 2d 95, 99 (Tex. App. –Houston [14th Dist] 1995, writ denied)

(holding prior contacts with Texas, including residence and driver’s license

that ended three years before cause of action arose did not confer person

jurisdiction); Al-Turki v. Taher, 958 S.W. 2d 258, 263 (Tex. App.—Eastland

1997, pet. Denied) (no general jurisdiction over shareholder of company

with principal place of business in Houston); Tuscano v. Osterberg, 82 S.W.

2d 457m 466-67 (Tex. App.—El Paso, no pet.) (no general jurisdiction over

corporate agents or employees of entity that does business in Texas).

Accordingly, general jurisdiction over Fisher is lacking in this case since he

never had systematic or continuous contacts with the forum state (See,

Fisher Decl., ¶¶ 1 - 18).



       III. PLEAING ALTERNATIVELY FOR ABATEMENT OR STAY
                BASED ON TO PRIOR PENDING ACTION


DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION            9
AND PLEAING ALTERNATIVELY FOR ABATEMENT OR STAY AND POINTS AND AUTHORITIES
      Abatement, also know as the prior pending action doctrine, holds that

where a claim involves the identical parties and the same subject matter as

a previously filed action so that the same facts and issues are presented,

resolution should occur through the prior action and the second suit should

be dismissed. Wyatt v. Shaw Plumbing Co., 760 S.W. 2d 245, 248. Texas

Courts consistently have recognized as a general proposition that it is

sufficient ground for abating a suit when another suit is pending within the

state with the same subject matter and the same parities. However, Texas

Courts have been divided when the second filed suit is pending in a sister

state. See, In Re AutoNation, Inc. et al., 228 S.W. 3d 663, (Tex. 2007).

      Plaintiff herein, brought suit on or about August 9, 2010, against

Michael Fisher, The Estate Services Group, and American Association of

Family Benefits (“Fisher”), in the Superior Court of The State of California,

County of Contra Costa Unlimited Jurisdiction (Case No. C10-02408) alleging

Defamation, trade libel, intention interference with prospective economic

advantage; negligence interference with prospective economic advantage;

intentional interference with contract; violation of Cal. Bus. & Prof. Code

§17200; declaratory relief/specific performance; and injunctive relief. (See,

attached Exhibit C.) On August 24, 2010, Plaintiff brought suit against the

same defendants in the same capacity in a separate action (Cause No. 10-

945C-26) and seeking relief for similar claims: tortuous interference with



DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION           10
AND PLEAING ALTERNATIVELY FOR ABATEMENT OR STAY AND POINTS AND AUTHORITIES
business relationships and perspective contractual relations; defamation/libel

and slander; and business disparagement.

      As a general rule, when cases involving the same facts and issues are

brought in different courts, the court with the first-filed case has dominant

jurisdiction, and the other case should be abated. Perry v. Del Rio, 66

S.W.3d 239, 252 (Tex. 2001); In re Sims, 88 S.W.3d 297, 303 (Tex. App.—

San Antonio 2002, orig. proceeding); Curtis v. Gibbs, 511 S.W. 2d 263, 267

(Tex. 1974); Lamar Sav. Ass’n. v. White, 731 S.W. 2d 715, 716 (Tex. App.—

Houston [1st Dist.] 1987, orig. proceeding); Wyatt v. Shaw Plumbing Co.,

760 S.W. 2d 245, 248 (Tex. 1988); and V.D. Anderson Co. v. Young, 128

Tex. 631, 101 S.W. 2d 798, 800 (1937).

      Abatement of a lawsuit due to the pendency of a previous lawsuit is

based on the principles of comity, convenience, and the necessity for an

orderly procedure in the trial of contested issues. Wyatt, 760 S.W.2d at 248.

If a party calls the second court's attention to the pendency of the first suit

by a plea in abatement, that court must sustain the plea. Curtis, 511 S.W.2d

at 267. Three exceptions exist to the general rule requiring abatement of

the second suit: (1) a party's conduct may estop him from asserting

dominant jurisdiction in another court; (2) the first court may lack power to

join parties to be joined if feasible; or (3) the party filing the first suit lacks

the intent to prosecute it. Wyatt, 760 S.W.2d at 248. If the second court

determines that one of the exceptions applies, it may assume dominant

DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION           11
AND PLEAING ALTERNATIVELY FOR ABATEMENT OR STAY AND POINTS AND AUTHORITIES
jurisdiction and proceed. Hartley v. Coker, 843 S.W.2d 743, 747 (Tex. App.-

-Corpus Christi 1992, no writ). None of the exceptions applies here (See,

Exhibits A - C). The court of dominant jurisdiction is California.

      In addition to having identical parties the claims involve a common

nucleus of operative facts and issues (See Fisher Affidavit attached as

Exhibit B). When the facts and issues are identical to the first litigation then

the second litigation should be abated, or stayed. In re State Farm Mut. Auto

Ins. Co., 192 S.W. 3d 897, 902 (Tex. App.—Tyler 2006) (orig. proceeding),

and Nowell v. Nowell, 408 S.W. 2d 550,553 (Tex. Civ. App.—Dallas 1966

writ dism’d w.o.j.). Justice will be served through abatement, or stay, of the

second filed Texas action. Texas Courts, as a general rule, stay the later filed

proceeding pending adjudication of the first suit. Evan v. Evans, 186 S.W. 2d

277, 278-79; Perry v.Del Rio, 67 S.W. 3 85 (Tex. 2001); and In re

AutoNation, Inc. et al., 228 S.W. 3d 663, 670 (Tex. 2007). Fisher seeks to

have the proceedings dismissed for lack of personal jurisdiction but in the

alternative pleas for abatement, or stay in the interests of wisdom and

justice.

                                 IV. CONCLUSION


      For the foregoing reasons, Fisher requests that this court dismiss the

claims against him for lack of personal jurisdiction, and, in the alternative

abate or stay the Texas proceedings.


DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION           12
AND PLEAING ALTERNATIVELY FOR ABATEMENT OR STAY AND POINTS AND AUTHORITIES
                                   Respectfully Submitted,




                                   By:
                                         Michael Fisher, Pro Se


                       CERTIFICATE OF SERVICE


     I certify that true and correct copy of the foregoing DEFENDANTS’

MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND

IN THE ALTERNATIVE ABATEMENT OR STAY AND POINTS AND

AUTHORITIES has been served upon all attorneys of record by certified

mail on the             day of                         2010.




                                          BY:
                                                Michael Fisher, Pro Se




DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION           13
AND PLEAING ALTERNATIVELY FOR ABATEMENT OR STAY AND POINTS AND AUTHORITIES
Attorneys for Plaintiff
Scott A. Shanes
State Bar No. 00784953
Marc F. Kirkland
State Bar No. 24046221
Strasburger & Price, LLP
2801 Network Blvd., Suite 600
Frisco, Texas 75034

Michael Zoll
State Bar No. 24049656
Strasburger & Price, LLP
600 Congress Ave., Suite 1600
Austin, Texas 78701-2974




DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION           14
AND PLEAING ALTERNATIVELY FOR ABATEMENT OR STAY AND POINTS AND AUTHORITIES
                                EXHIBIT A




DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION           15
AND PLEAING ALTERNATIVELY FOR ABATEMENT OR STAY AND POINTS AND AUTHORITIES
DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION           16
AND PLEAING ALTERNATIVELY FOR ABATEMENT OR STAY AND POINTS AND AUTHORITIES

								
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