United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS, SENIOR UNITED STATES DISTRICT JUDGE
before the Court in this intellectual property dispute are
two motions to dismiss. The first motion is Defendants MMTC
Texas, Inc.'s (“MMTC Texas) and Tesla Shen
Mendez's (“T. Mendez”) Motion to Dismiss and
Supporting Authorities (the “12(b)(6) Motion”)
[Doc. # 13], wherein MMTC and T. Mendez argue that all claims
alleged in Plaintiff Federation of State Massage Therapy
Boards' Complaint [Doc. # 1] should be dismissed for
failure to state a claim pursuant to rule 12(b)(6) of the
Federal Rules of Civil Procedure. The second motion is
Defendants Jorge Mendez's (“J. Mendez”) and
Mendez Master Training Center, Inc.'s
(“MMTC”) Motion to Dismiss and Brief in Support
(the “Jurisdiction Motion, ” and, together with
the 12(b)(6) Motion, the “Dismissal Motions”)
[Doc. # 14]. In the Jurisdiction Motion, Defendants J. Mendez
and MMTC contend that the Court lacks personal jurisdiction
over them and, as a result, all claims in the Complaint
against them should be dismissed. Plaintiff filed timely
responses to the Dismissal Motions, to which Defendants filed
a single reply. See Plaintiff's Opposition to
Defendants MMTC Texas's and T. Mendez's Motion to
Dismiss (the “12(b)(6) Response”) [Doc. # 15];
Plaintiff's Opposition to Defendants J. Mendez's and
MMTC's Motion to Dismiss (the “Jurisdiction
Response”) [Doc. # 16]; and Defendants' Response to
Plaintiff's Opposition to Motion to Dismiss, with
Supporting Authorities [Doc. # 17]. The Dismissal Motions are
now ripe for decision. Having considered the parties'
briefing, the applicable legal authorities, and all
appropriate matters of record, the Court concludes that the
Dismissal Motions should be denied, but that
Plaintiff must file and amended complaint.
develops and administers the national licensing examination
that assesses competence in massage and bodywork in the
United States and its territories, known as the Massage &
Bodywork Licensing Exam (“MBLEx”). According to
Plaintiff, its MBLEx questions are protected by U.S.
copyright law and are registered with the U.S. Copyright
office. MBLEx results are used by licensing agencies
throughout the United State, including in Texas, when
evaluating applicants for licensure. These jurisdictions
require applicants to obtain a passing result on the MBLEx to
obtain a license to practice massage and bodywork.
group of Defendants in this case is comprised of two
corporate entities and several individuals. The corporate
Defendants are MMTC and MMTC Texas. MMTC is a California
corporation with its principal place of business in Torrance,
California. MMTC Texas is a Texas corporation with its
principal place of business in Houston, Texas. Plaintiff
alleges in the Complaint that MMTC has “business
operations in Texas” at the same address as MMTC Texas.
Individual Defendants T. Mendez and J. Mendez are residents
of Texas and California, respectively, and are each alleged
to be the “owner and operator” of both MMTC and
core of Plaintiff's Complaint is that Defendants T.
Mendez and J Mendez, through their businesses MMTC and MMTC
Texas and with the assistance of the other named Defendants,
have impermissibly obtained and reproduced MBLEx questions,
including the answers thereto, and sold them to prospective
MBLEx takers. As a result, Plaintiff argues that Defendants
have undermined the integrity of the MBLEx itself and the
massage and bodyworks licensing processes that rely on it.
Plaintiff contends further than Defendants' publication
of its confidential MBLEx questions has forced it to retire
hundreds of questions from use in the examination and incur
significant costs to develop new, uncompromised exam
threshold issue, Defendants MMTC and J. Mendez have moved to
dismiss the Complaint in its entirety on the grounds that
they are not subject to personal jurisdiction in Texas. The
Court addresses Defendants' jurisdictional arguments in
Legal Standard for Personal Jurisdiction
has the burden of establishing that this Court has personal
jurisdiction over each Defendant. See Int'l Energy
Ventures Mgmt., LLC v. United Energy Group, Ltd., 800
F.3d 143, 151 (5th Cir. 2015). On a motion to dismiss, a
plaintiff is required to present only a prima facie
case for personal jurisdiction. Walk Haydel & Assoc.,
Inc. v. Coastal Power Prod. Co., 517 F.3d 235, 241 (5th
Cir. 2008). Where, as here, the Court did not conduct a full
evidentiary hearing, the Court will consider the evidence
presented by the parties “to help it resolve the
jurisdictional issue, ” but will “construe all
disputed facts in Plaintiff's favor and consider them
along with the undisputed facts.” Id.
in Texas may exercise personal jurisdiction over a
nonresident if “(1) the Texas long-arm statute
authorizes the exercise of jurisdiction, and (2) the exercise
of jurisdiction is consistent with federal and state
constitutional due-process guarantees.” DeJoria v.
Maghreb Petroleum Expl., S.A., 804 F.3d 373, 388 (5th
Cir. 2015) (citing Moncrief Oil Int'l, Inc. v. OAO
Gazprom, 414 S.W.3d 142, 149 (Tex. 2013)). In Texas, the
long-arm statute extends to the limits of federal
constitutional due process. See Companion Prop. &
Cas. Ins. Co. v. Palermo, 723 F.3d 557, 559 (5th Cir.
may be general or specific. Where a defendant has
“continuous and systematic general business
contacts” with the forum state, Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415
(1984), the court may exercise “general”
jurisdiction over any action brought against that defendant.
Id. at 414 n.9. Where contacts are less pervasive,
the court may still exercise “specific”
jurisdiction “in a suit arising out of or related to
the defendant's contacts with the forum.”
Id. at 414 n.8. Plaintiff does not assert that the
Court has general personal jurisdiction over MMTC or J.
Mendez. Therefore, this case presents only the question of
personal jurisdiction comports with due process when (1) the
nonresident defendant has minimum contacts with the forum
state, and (2) asserting jurisdiction complies with
traditional notions of fair play and substantial
justice.” DeJoria, 804 F.3d at 388 (citing
Moncrief, 414 S.W.3d at 150). A defendant
establishes minimum contacts with a state when he
purposefully avails himself “of the privilege of
conducting activities within the forum state, thus invoking
the benefits and protections of its laws.” Id.
(citations omitted). “In addition to minimum contacts,
due process requires the exercise of personal jurisdiction to
comply with traditional notions of fair play and substantial
justice.” Id. (quoting Moncrief, 414
S.W.3d at 154).
Personal Jurisdiction over MMTC
argues that as a California corporation, it lacks the
requisite contacts with Texas to be subject to jurisdiction
in this Court. MMTC contends further that to the extent it
has any contacts with Texas, those contacts are not
sufficiently related to the claims in this lawsuit to warrant
the Court's exercise of personal jurisdiction over it.
The Court is not persuaded by these assertions.
Complaint, Plaintiff alleges that MMTC has business
operations in Texas at the same address as MMTC Texas.
Complaint [Doc. # 1], ¶¶ 5-6 at ECF 2. Plaintiff
further alleges that MMTC has employees or agents in Texas.
See Id. ¶ 7 at ECF 2-3 (alleging that Defendant
T. Mendez, a Texas resident, is an “owner, operator,
and director” of MMTC); id. ¶ 12 at ECF 3
(alleging that “John Doe” Defendants are agents
or employees of MMTC, and that some of those individuals are
believed to be residents of Texas). According to the
Complaint, Defendant T. Mendez and the “John Doe”
Defendants have participated in providing Defendants'
purportedly illicit MBLEx-preparation services at a
“school” located in Houston, Texas. See
Id. ¶ 18 at ECF 5 (“Defendants regularly
advertise the sale of MBLEx questions and other fraudulent
services, offering to help customers obtain state massage and
bodywork licenses in Texas and elsewhere within a mere ten
days. Their MBLEx-preparation services are available online
and through the mail, as well as in person at their
“schools” located in Houston, Texas, and various
cities in California.”). There is also an allegation
that another agent of MMTC, Defendant Sun, has on at least
one occasion attempted to direct a prospective
“student” to MMTC's offerings in Texas.
See Id. ¶ 53 at ECF 15 (“Defendant Sun
told the investigator that Defendants were currently offering
live MBLEx preparation classes in Houston and Los Angeles . .
. . She also explained that Defendants' classroom
building in Houston offers living accommodations for an
Defendants challenge the veracity of Plaintiff's
allegations with respect to MMTC and its agents, Defendants
failed to produce any competent evidence in connection with
the Jurisdiction Motion that discredits Plaintiff's
assertions that MMTC intentionally conducts business in the
state of Texas. For example, Plaintiffs have not produced an
affidavit from T. Mendez or any another corporate
representative of MMTC averring that MMTC has no operations
or employees in the state of Texas. Absent such evidence, at
this early stage of this case the Court is bound to accept as
true the well-pled allegations in Plaintiff's Complaint.
Accepting those allegations as true, the Court concludes that
Plaintiff has made a prima facie showing that MMTC
itself conducts business, including offering
MBLEx-preparation services, in the state of Texas and has
promoted its Texas-based operations to potential customers.
Consequently, Plaintiff ...