United States District Court, W.D. Texas, Austin Division
KEITH BELL, PH. D., Plaintiff,
THE MOAWAD GROUP, LLC and TREVOR MOAWAD, Defendants.
SPARKS UNITED STATES DISTRICT JUDGE
REMEMBERED on the 6th day of June 2017, the Court held a
hearing in the above-styled cause, and the parties appeared
by and through counsel. Before the Court are Defendants'
Motion to Dismiss [#5], Plaintiffs Response [#11] in
opposition, and Defendants' Reply [#15] in support, as
well as Plaintiffs Motion for Limited Jurisdictional
Discovery [#13], Defendants' Response [#14] in
opposition, and Plaintiffs' Reply [#17] in support.
Having reviewed the documents, the governing law, and the
file as a whole, the Court now enters the following opinion
case involves claims for copyright infringement. Plaintiff
Keith Bell, a resident of Texas, describes himself as an
"internationally recognized sports psychologist and
sports performance consultant." Am. Compl. [#10] ¶
9. He is also the author of the copyrighted book, Winning
Isn't Normal. Id. ¶ 13. Defendants The Moawad
Group, LLC (Moawad Group) and Trevor Moawad (together,
Defendants) provide consulting services in the fields of
sports performance, mental condition, and brand management to
professional and collegiate athletes. Id. ¶ 26.
Trevor Moawad is a resident of Arizona and the sole manager
of the Moawad Group. Id. ¶ 4. The Moawad Group,
which was formed in 2014, is an Arizona limited liability
company with its principle place of business in Arizona.
Id. ¶ 2; see also Mot. Dismiss [#5-1]
(Trevor Moawad Decl.) ¶ 5.
provides a litany of factual allegations to prove Defendants
have sufficient minimum contacts with Texas to justify the
exercise of personal jurisdiction. According to Bell, both
Defendants have "a long-standing and close business
relationship with a renowned sports performance center
located in Texas" known as the Michael Johnson
Performance (MJP). Id. ¶ 31. Indeed, Defendants
admit to "[p]erforming limited services for MJP on a
couple occasions in [the past] two years." Reply [#15]
at 7. MJP displays Trevor Moawad's staff biography on its
website as providing "mental skills." Am. Compl.
[#10-1] Ex. F (MJP Staff Website) at 18-20. Moreover, the
Moawad Group's website displays a testimonial from the
owner of MJP. Id. Ex. D (Moawad Group's Website)
Trevor Moawad's contacts with Texas, Bell alleges that
between 2002 and 2006, Trevor Moawad served as a sports
psychologist "and/or mental conditioning
coordinator" for the women's soccer team at Texas
A&M University. Am. Compl. [#10] ¶ 32; Reply [#15-1]
Ex. (Trevor Moawad Supp. Decl.) ¶¶ 8-9. The Moawad
Group's website displays testimony from a member of the
women's soccer coaching staff at Texas A&M. Am.
Compl. [#10] ¶ 34. In 2012, while working as an employee
of a different company, Trevor Moawad traveled with the
University of Alabama football team to a college football
bowl game in Texas. Id. ¶ 33; Reply [#15] at 7.
In 2013, Trevor Moawad traveled to Austin, Texas to promote
his consulting services at a South by Southwest panel. Am.
Compl. [#10] ¶ 35; id. [#10-1] Ex. G (SXSW Ad)
at 22. Bell further alleges Trevor Moawad, in conjunction
with the Moawad Group, maintains public social media accounts
on Twitter, Instagram, and Facebook to promote their
consulting services; at least some of their followers on
these social media accounts reside in Texas. Am. Compl. [#10]
lawsuit, Bell alleges Defendants reproduced, displayed, and
distributed a 219-word excerpt from Bell's Winning
Isn't Normal on Twitter, Instagram, and Facebook in
violation of Bell's copyright. Id. ¶ 43.
Bell alleges this excerpt, which remained posted on
Defendants' social media accounts from May 11, 2016, to
December 6, 2016, represents "the heart of [his]
work" in Winning Isn 't Normal. Id.
¶¶ 43-44. According to Bell, Defendants posted the
image without Bell's authorization and used it to promote
their services and interact with their followers, some of
whom live in Texas. Id. ¶ 45. Specifically,
Bell maintains "one or more Texas residents" who
follow Defendants on social media "interacted] with the
infringing posts through retweets, likes, shares, and
comments." Id. ¶ 46.
February 3, 2017, Bell filed this lawsuit in the Western
District of Texas. See Compl. [#1]; see
also Am. Compl. [#10]. Thereafter, Defendants filed a
motion to dismiss for lack of personal jurisdiction and
improper venue; in the alternative, Defendants request this
case be transferred to the District of Arizona. Mot. Dismiss [#5]
at 1. The parties have fully briefed the motion, and it is
now ripe for the Court's consideration.
move to dismiss Bell's complaint 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. Ctr.
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, AAA 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 Tech. 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
"[e]ach defendant's contacts with the forum State
must be assessed individually, " Calder v.
Jones, 465 U.S. 783, 790 (1984), the Court addresses
Bell's claims against the Moawad Group and Trevor Moawad
The Moawad Group
advances two reasons in support of the Court's exercise
of jurisdiction over the Moawad Group. First, the crux of
Bell's allegation is that the Moawad Group posted an
allegedly infringing image on Facebook, Instagram, and
Twitter, and at least some of its followers on social media
live in Texas. Second, Bell points to the Moawad Group's
"long-standing and close business relationship"
with Texas-based MJP. The Court analyzes ...