United States District Court, W.D. Texas, Austin Division
SPARKS, UNITED STATES DISTRICT JUDGE
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Defendant OmniWest, LLC
(OmniWest)'s Motion to Dismiss [#9], Plaintiff Clarity
Research and Consulting, LLC (Clarity)'s Response [#17]
in opposition, OmniWest's Reply [#19] in support, and
Clarity's Sur-Reply [#20] in opposition. Having reviewed
the documents, the governing law, and the file as a whole,
the Court now enters the following opinion and orders.
brings this action against OmniWest for breach of contract,
misappropriation of trade secrets, tortious interference with
contracts, tortious interference with prospective business
relationships, business disparagement, and conspiracy.
See Not. Removal [#1-1] Ex. A (Orig. Pet.)
is a scientific and clinical research company, incorporated
under Delaware law, that partners with healthcare providers
to develop, administer, and execute research studies.
Id. ¶ 13. Its principal place of business is
located in Austin, Texas. Id. ¶ 1.
is an Arizona limited liability company that
"coordinates and administers medical study services
between companies that develop medical studies and
participating healthcare providers." Mot. Dismiss [#9]
at 2. Its principal place of business is located in
Scottsdale, Arizona. Orig. Pet. ¶ 2.
entered into a Subcontractor Master Management and
Administrative Services Agreement (Agreement) with Safe
Harbor Compliance and Clinical Services, LLC (Safe Harbor),
effective August 1, 2015. Resp. [#17] at 3; see Id.
[#17-1] Ex. A (Agreement). Safe Harbor "supervises and
coordinates the management and administration of healthcare
research and medical study services for various healthcare
provider customers . ..." Agreement at 1. As part of the
Agreement, OmniWest was "to assist [Safe Harbor] with
the coordination, supervision, management and
administration" of certain healthcare clinical trial
studies. Id. The Agreement lists OmniWest's
"Duties and Responsibilities":
(b) . . . [OmniWest] shall use reasonable efforts to perform
its duties in a competent and timely fashion.
(d) [OmniWest] represents and warrants . . . each
professional who shall provide professional services for the
Studies . . . shall (i) be, as applicable, duly licensed as
required by state and federal law, (ii) have certification,
training and credentialing appropriate for the professional
services performed . . ., and (iii) have professional
insurance coverage ....
(e) ... [OmniWest] shall procure and maintain[ ]
comprehensive general liability insurance coverage and
workers' compensation insurance coverage with insurance
Id. at 2; see also Reply [#19] at 2. In
general, the Agreement required OmniWest to "USE
REASONABLE JUDGMENT IN RENDERING THE SERVICES FOR [SAFE
HARBOR] . . . ." Agreement at 3. The Agreement also
included a "Confidential Information" clause,
prohibiting OmniWest and Safe Harbor from disclosing, using,
copying, or permitting to be copied confidential information;
a "Patient Information" clause, requiring OmniWest
and Safe Harbor to "comply with all applicable privacy
and security laws and regulations"; and a
"Materials" clause, providing OmniWest will submit
for review and approval all materials of Safe Harbor before
using, distributing, or display any such materials.
Id. at 3; see also Sur-Reply [#20] at 2.
Finally, the Agreement included the following forum selection
This Agreement shall be construed and enforced in accordance
with the laws of the State of Texas, excluding any conflict
of law provision which would refer to the law of another
jurisdiction, and the Parties agree that venue of any
litigation under this Agreement shall be in Travis County,
Agreement at 6.
January 1, 2016, OmniWest, Safe Harbor, and Clarity entered
in a First Amendment to the Agreement (Amendment). Resp.
[#17-1] Ex. B (Amendment). The Amendment assigned the
Agreement from Safe Harbor to Clarity and incorporated a
"Code of Conduct": OmniWest "hereby consents
to the assignment of the Agreement to [Clarity] such that all
references to [Safe Harbor] in the Agreement and Code of
Conduct. . . shall be changed to Clarity upon assignment of
the Agreement from [Safe Harbor] to Clarity . . . ."
Amendment at 1-2.
the parties executed the Amendment, Mark Jablonski and Scott
Yost, members of OmniWest, visited Clarity's offices in
Austin, Texas, approximately five times. Resp. [#17-1]
(Hurwitz Aff.) ¶ 7. The purpose of these meetings was to
discuss: "(1) issues related to the Agreement between
Clarity and OmniWest; (2) business operations of Clarity and
OmniWest; (3) training on studies and protocols for OmniWest;
(4) business opportunities for Clarity and OmniWest; and (5)
administrative issues related to Clarity and OmniWest's
relationship." Id. Further, in performing its
duties under the Agreement, OmniWest recruited no less than
21 compensated study investigators located in Texas.
Id. ¶ 8.
2016, Clarity claims it discovered OmniWest violated the
Agreement. Orig. Pet. ¶¶ 21-33. Specifically,
Clarity alleges OmniWest used Clarity's confidential
customer/investigator information and lists to attempt to
lure away its customers/investigators to its competitors and
has made "disparaging remarks to [Clarity's]
customers/investigators indicating that it is going out of
business, no longer conducting research studies, and is
filing for bankruptcy." Id. ¶¶ 25,
filed its Original Petition in state court on January 20,
2017, alleging breach of contract, misappropriation of trade
secrets, tortious interference with contracts, tortious
interference with prospective business relationships,
business disparagement, and conspiracy claims against
OmniWest, Jablonski, Yost, and Muhovic. See Orig.
Pet. ¶ 35-49. OmniWest timely removed to this Court on
March 3, 2017. As noted above, on March 28, 2017, this Court
granted Clarity's unopposed motion to dismiss its claims
against Jablonski, Yost, and Muhovic without
prejudice. See Order of Mar. 28, 2017 [#18]
March 10, 2017, OmniWest moved to dismiss Plaintiffs Original
Petition for lack of personal jurisdiction and improper venue
under 28 U.S.C. § 1406. Mot. Dismiss [#9] at 1. In the
alternative, OmniWest moved to transfer the case under 28
U.S.C. § 1404(a) or dismiss the case under the doctrine
of forum non conveniens. Id. The motion has been
fully briefed and is now ripe for this Court's review. In
addition, although not discussed by either party, the Court
will determine whether subject matter jurisdiction exists
over this dispute.
moves to dismiss Clarity's Original Petition based on
lack of personal jurisdiction under Federal Rule of Civil
Procedure 12(b)(2). To determine whether a federal district
court has personal jurisdiction over a nonresident defendant,
the court considers first whether exercising jurisdiction
over the defendant comports with due process. Religious
Tech. Or. v. Liebreich, 339 F.3d 369, 373 (5th Cir.
2003). If the requirements of due process are satisfied, the
court then determines whether the exercise of jurisdiction is
authorized by the jurisdictional "long-arm" statute
of the state in which the court sits. Id. Because
the Texas long-arm statute has been interpreted as extending
to the limit of due process, the two inquiries are the same
for district courts in Texas. Id; see also Tex. Civ.
Prac. & Rem. Code §§ 17.001-093.
Process Clause requires a nonresident defendant be properly
subject to the personal jurisdiction of the court in which
the defendant is sued. World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 291 (1980). The Supreme Court has
articulated a two-pronged test to determine whether a federal
court may properly exercise jurisdiction over a nonresident
defendant: (1) the nonresident must have minimum contacts
with the forum state, and (2) subjecting the nonresident to
jurisdiction must be consistent with "traditional
notions of fair play and substantial justice."
Int'l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945); Freudensprung v. Offshore Technical Servs.,
Inc., 379 F.3d 327, 343 (5th Cir. 2004).
defendant's "minimum contacts" may give rise to
either general personal jurisdiction or specific personal
jurisdiction, depending on the nature of the suit and the
defendant's relationship to the forum state.
Freudensprung, 379 F.3d at 343. A court exercises
general jurisdiction over the defendant if the defendant has
"continuous and systematic contacts" with the
forum, regardless of whether those contacts are related to
the cause of action asserted in the case. Id.
Specific jurisdiction, by contrast, is based on the
proposition "that 'the commission of some single or
occasional acts of the [defendant] in a state' may
sometimes be enough to subject the [defendant] to
jurisdiction in that State's tribunals with respect to
suits relating to that in-state activity." Daimler
AG v. Bauman, 134 S.Ct. 746, 754 (2014) (quoting
Int'l Shoe, 326 U.S. at 318).
plaintiff has the burden of making a prima facie case by
showing a defendant has sufficient "minimum
contacts" with the forum state to justify the
state's exercise of either specific or general
jurisdiction. Freudensprung, 379 F.3d at 343. If the
plaintiff does so, the burden shifts to the defendant to show
such an exercise offends due process because it is not
consistent with traditional notions of fair play and
substantial justice. Id. Finally, when a court rules
on a 12(b)(2) motion to dismiss for lack of personal
jurisdiction without holding an evidentiary hearing, it must
accept the non-moving party's jurisdictional allegations
as true and resolve all factual disputes in its favor.
Guidry v. U.S. Tobacco Co., 188 F.3d 619, 625 (5th
claims it lacks the substantial, continuous, or systematic
contact with Texas required to establish general personal
jurisdiction. Mot. Dismiss [#9] at 4-5. OmniWest is
incorporated under Arizona law and ...