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Rex Real Estate I, L.P. v. Rex Real Estate Exchange Inc.

United States District Court, E.D. Texas, Sherman Division

June 19, 2019

REX REAL ESTATE I, L.P.
v.
REX REAL ESTATE EXCHANGE, INC.

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE.

         Defendant Rex Real Estate Exchange, Inc. has filed a Motion to Dismiss or Transfer for Improper Venue (the “Motion to Dismiss or Transfer”) (Dkt. #15) and a Motion for Hearing on the Motion to Dismiss or Transfer (Dkt. #32). After careful consideration, the Court concludes that the Motion to Dismiss or Transfer will be granted to the extent described herein, rendering the request for a hearing moot.

         BACKGROUND

         Plaintiff Rex Real Estate I, L.P. and Defendant Rex Real Estate Exchange, Inc. are real estate companies that conduct business in Texas. Plaintiff conducts business throughout the state, though primarily focuses on North Texas. Defendant, on the other hand, primarily operates in Austin, San Antonio, and Houston, though also operates in cities outside of Texas (Defendant's “Service Areas”). Plaintiff alleges that Defendant uses Plaintiff's “unique and proprietary trademarks, service marks and tradenames ‘REX' and ‘REX REAL ESTATE'” in attempts to market to and solicit customers (Dkt. #1 at pp. 2-3).

         Defendant's website (the “Website”) “allows sellers to list residential homes for sale and allows potential buyers to browse the homes that are listed” (Dkt. #15, Exhibit 2 at p. 2). Although the Website is accessible from any location, “[i]f a user tries to list a home [outside of its Services Areas] for sale, ” the Website “reject[s] the user's attempt” to do so (Dkt. #15, Exhibit 2). Defendant's Website will assist those outside its Service Areas to purchase a home in those areas, but no resident in the District has purchased a home through the Website (Dkt. #15, Exhibit 2).

         Defendant now seeks to either dismiss the action, or transfer it the Western District of Texas, Austin Division, arguing that it lacks any meaningful ties to the District. Defendant notes that it does not have a physical office in the District, does not employ District residents, and runs ads in newspapers and on radio stations in Austin and San Antonio-even if Eastern District residents may be exposed to some advertisements due to the reach of some of those media outlets.

         LEGAL STANDARDS

         Federal Rule of Civil Procedure 12(b)(3) allows a party to move to dismiss an action for “improper venue.” Fed.R.Civ.P. 12(b)(3). Once a defendant raises improper venue by motion, “the burden of sustaining venue will be on [the] Plaintiff.” Cincinnati Ins. Co. v. RBP Chem. Tech., Inc., No. 1:07-CV-699, 2008 WL 686156, at *5 (E.D. Tex. Mar. 6, 2008). “Plaintiff may carry this burden by establishing facts that, if taken to be true, establish proper venue.” Id. (citations omitted). The Court “must accept as true all allegations in the complaint and resolve all conflicts in favor of the plaintiff.” Mayfield v. Sallyport Glob. Holdings, Inc., No. 6:16-CV-459, 2014 WL 978685, at *1 (E.D. Tex. Mar. 5, 2014) (citing Ambraco, Inc. v. Bossclip, B.V., 570 F.3d 233, 237-38 (5th Cir. 2009)). In determining whether venue is proper, “the Court may look beyond the complaint to evidence submitted by the parties.” Ambraco, 570 F.3d at 238. If venue is improper, the Court must dismiss, “or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a); Fed.R.Civ.P. 12(b)(3).

         DISCUSSION

         Defendant moves to dismiss the case or transfer it to the Western District of Texas, arguing that venue is improper under 28 U.S.C. § 1391. Section 1391(b) allows civil actions to be brought in either:

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

28 U.S.C. ยง 1391(b). Plaintiff has failed to establish that this District is proper under any of these prongs-even accepting its allegations as true and resolving ...


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