United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Defendant Legendary Q Brands, LLC's
Special Appearance and Motion to Dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(2) and 12(b)(6) (Dkt. #9).
After reviewing the relevant pleadings, the Court finds that
the motion to dismiss under Rule 12(b)(2) should be granted.
brought this suit seeking to reduce to judgment the
outstanding federal tax liabilities assessed against
Defendant Billy R. Sims (“Sims”) and enforce the
federal tax liens and obtain remedies under 28 U.S.C. §
3001 et seq., upon certain real and personal property,
including certain contracts held by Sims' holding
company, BS20, Inc. (“BS20”) and contracts with
Legendary Q Brands, LLC (“Legendary”). Sims is a
resident of Lewisville, Texas. He is a former American
college and professional football player. BS20 is an
S-Corporation, incorporated in 2011 under the laws of
Oklahoma. Sims is the 100% shareholder of BS20.
is an Oklahoma limited liability company, with its principal
place of business in Tulsa, Oklahoma. The sole member of
Legendary is Jeff Jackson, who is a resident of Oklahoma.
Legendary is the owner and franchisor of Billy Sims BBQ
restaurants (Dkt. #1 at p. 5).
primary business of Legendary is the operation and management
of Billy Sims BBQ restaurants throughout the States of
Oklahoma, Kansas, Iowa, Missouri, and Colorado.
alleges that in 2009, 2010, and partially in 2011, Legendary
paid Sims a salary, contract payments, royalties, appearance
fees, franchise fees and/or profits interest directly to Sims
to use Sims' name, nicknames, image, voice, likeness,
personality, history and memorabilia (collectively
“publicity rights”) in order to market the Billy
Sims BBQ restaurants (Dkt. #1 at p. 5). On May 13, 2011, Sims
signed a Consent to Register the names Billy Philly, Billy
Burger, Billy Dog and Billy Chili with the United States
Patent and Trademark Offices for Legendary. (Dtk. #9, Exhibit
2 at p. 22)
October 2012, Legendary executed an Operating and Licensing
Agreement (“Licensing Agreement”) with BS20 to
continue to use those same publicity rights to market the
Billy Sims BBQ restaurants (Dkt. #9, Exhibit 2). The
Licensing Agreement was executed in Oklahoma and is governed
by Oklahoma law. Id. The Licensing Agreement between
BS20 and Legendary was executed prior to the foreclosure of
the federal tax liens against Defendant Sims (Dkt. #1 at
2013, Legendary entered into a franchise agreement with
Quality Brands, LLC (“Quality Brands”), to open a
Billy Sims BBQ franchise restaurant (Dkt. #21 at p. 2).
Quality Brands is a limited liability company organized under
the laws of Oklahoma and the franchise agreement between
Legendary and Quality Brands is governed by Oklahoma law
(Dkt. #21, Exhibit 3). Quality Brands selected Texarkana,
Texas, as the location for its franchise store, which
Legendary approved under the terms of the franchise agreement
(Dkt. #23 at p. 2). Quality Brands leased the premises
located at 3747 Mall Lane, Texarkana, Texas, and opened its
Billy Sims BBQ restaurant.
2014, Quality Brands transferred its franchisee interest in
the Texarkana restaurant to David and Melanie Price, as owner
of Blue Ribbon BBQ, LLC (Dkt. #21, Exhibit 3; Dtk. #23 at p.
2). As part of this asset purchase, Blue Ribbon BBQ, LLC,
took over the lease agreement for the Texarkana restaurant
and oversaw the operations of the Texarkana restaurant.
Texarkana restaurant was the only Billy Sims BBQ franchise
restaurant located in the State of Texas. In May 2015, the
Texarkana restaurant permanently closed. There have been no
other Billy Sims franchise restaurants located in Texas
alleges Sims has outstanding federal income tax liabilities
for the 2001, 2004-2011, and 2014 tax years. On July 13,
2017, Plaintiff filed this suit to reduce to judgment and
collect the outstanding tax assessments against Sims (Dkt.
#1). Plaintiff also seeks to enforce the federal tax liens
upon Sims' property, including Sims' rights to
payments owed from Legendary and any rights Legendary
obtained from Sims and BS20 to use Sims' personal assets.
Thus, because Legendary has an interest in Sims' assets,
Plaintiff named Legendary as a defendant.
August 3, 2017, Legendary filed its motion to dismiss for
lack of personal jurisdiction and for failure to state a
claim. (Dtk. #9). Plaintiff filed its response on August 17,
2017 (Dkt. #17). On August 24, 2017, Legendary filed its
reply (Dtk. #21). Plaintiff filed its sur-reply on August 31,
2017 (Dkt. #23).