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Bell v. Moawad Group, LLC

United States District Court, W.D. Texas, Austin Division

June 30, 2017

KEITH BELL, PH. D., Plaintiff,



         BE IT 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 and orders.


         This 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.

         Bell 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) at 10.

         Regarding 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] ¶¶ 38-40.

         In this 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.

         On 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.[1] Mot. Dismiss [#5] at 1. The parties have fully briefed the motion, and it is now ripe for the Court's consideration.


         I. Personal Jurisdiction

         Defendants 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.

         The Due 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).

         A 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).

         The 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 Cir. 1999).

         Because "[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 in turn.

         A. The Moawad Group

         Bell 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 ...

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