United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Percy O. Tejeda’s Motion
to Dismiss for Lack of Personal Jurisdiction (Dkt. #30).
Having considered the motion and the relevant pleadings, the
Court finds that Motion to Dismiss should be granted in part
and denied in part.
McAfee, LLC filed suit against Defendants Jennifer E. Kinney
(“Kinney”), Alan P. Coe (“Coe”),
Percy O. Tejeda (“Tejeda”) (collectively
“Individual Defendants”), and Tanium, Inc.
(“Tanium”) after the Individual Defendants left
their employment with Plaintiff to join Plaintiff’s
alleged competitor, Tanium. Tejeda was the first of the
Individual Defendants to leave Plaintiff and join Tanium.
times during Tejeda’s employment with Plaintiff, Tejeda
resided in California and worked for Plaintiff in California.
While working for Plaintiff, Tejeda signed an employment
agreement (“Tejeda’s Employment
Agreement”). It contained the following relevant
3. Confidential Information and McAfee
During and after my McAfee employment, I will hold in strict
confidence and not disclose or use any Confidential
Information connected with McAfee business or the business of
any McAfee’s suppliers, customers, employees, or
contractors. . . . For purposes of this Agreement,
Confidential Information includes, without limitation: . . .
personnel information (e.g. organizational charts, employee
lists, skill sets, employee health information, names, phone
numbers, email addresses, personnel files, employee
compensation except where the disclosure of such personnel
information is permissible under local labor law such as the
right of employees to discuss compensation and working
conditions under the US National Labor Relations Act), and
other non-public McAfee data and information of a similar
5. Non-Solicitation and Misappropriation of Trade
McAfee has a legitimate business interest in its continuing
employment and customer relationships and in protecting those
relationships from unlawful interference. Accordingly, I
agree that during my employment and for twelve (12) months
after my employment ends, I will not solicit, directly or
indirectly, any employee to leave his/her employment with
McAfee. During the twelve (12) months after my employment
ends, this applies to any employees that were employed with
McAfee as of my separation date from the Company and with
whom I had business contact or about whom I had access to
Confidential Information during my previous two years of
employment with the Company prior to my separation.
(Dkt. #1, Exhibit 1 at pp. 20–21). Kinney had a
substantially similar, if not identical, employment agreement
Tejeda, still residing in California, works for Tanium in
California. After leaving McAfee and while working for
Tanium, Tejeda reached out by electronic communication, to
Kinney, who, at the time, lived and worked for Plaintiff in
Texas. According to Plaintiff, these communications were
intended to induce Kinney to disclose Plaintiff’s
confidential information in violation of her employment
agreement, to, in fact, obtain Plaintiff’s confidential
information, and to recruit Kinney to work for Tanium.
17, 2019, Tejeda filed the present motion to dismiss for lack
of personal jurisdiction (Dkt. #30). On July 31, 2019,
Plaintiff filed its response to the motion (Dkt. #52). On
August 7, 2019, Tejeda filed his reply (Dkt. #59). No.
sur-reply was filed.
Rule of Civil Procedure 12(b)(2) requires a court to dismiss
a claim if the court does not have personal jurisdiction over
the defendant. Fed. R. Civ. P. 12(b)(2). After a non–
resident defendant files a motion to dismiss for lack of
personal jurisdiction, it is the plaintiff’s burden to
establish that in personam jurisdiction exists.
Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir.
1990) (citing WNS, Inc. v. Farrow, 884 F.2d 200, 202
(5th Cir. 1989)).
satisfy that burden, the party seeking to invoke the
court’s jurisdiction must “present sufficient
facts as to make out only a prima facie case
supporting jurisdiction,” if a court rules on a motion
without an evidentiary hearing. Alpine View Co. v. Atlas
Copco AB, 205 F.3d 208, 215 (5th Cir.
2000). When considering the motion to dismiss,
“[a]llegations in [a] plaintiff’s complaint are
taken as true except to the extent that they are contradicted
by defendant’s affidavits.” Int’l Truck
& Engine Corp. v. Quintana, 259 F. Supp. 2d 553');">259 F. Supp. 2d 553, 557
(N.D. Tex. 2003) (citing Wyatt v. Kaplan, 686 F.2d
276, 282–83 n.13 (5th Cir. 1982)); accord Black v.
Acme Mkts., Inc., 564 F.2d 681, 683 n.3 (5th Cir. 1977).
Further, “[a]ny genuine, material conflicts between the
facts established by the parties’ affidavits and other
evidence are resolved in favor of plaintiff for the purposes
of determining whether a prima facie case
exists.” Int’l Truck & Engine Corp,
259 F. Supp. 2d at 557 (citing Jones v. Petty-Ray
Geophysical Geosource, Inc., 954 F.2d 161, 1067 (5th
Cir. 1992)). However, if a court holds an evidentiary
hearing, a plaintiff “must establish jurisdiction by a
preponderance of the admissible evidence.” In re
Chinese Manufactured Drywall Prods. Liab. Lit., 742 F.3d
576, 585 (5th Cir. 2014) (citing Walk Haydel &
Assocs., Inc. v. Coastal Power Prod. Co., 517 F.3d 235,
241–42 (5th Cir. 2008)).
conducts a two–step inquiry when a defendant challenges
personal jurisdiction. Ham v. La Cinega Music Co., 4
F.3d 413, 415 (5th Cir. 1993). First, absent a controlling
federal statute regarding service of process, the court must
determine whether the forum state’s long–arm
statute confers personal jurisdiction over the defendant.
Id. And second, the court establishes whether the
exercise of jurisdiction is consistent with due process under
the United States Constitution.
Texas long–arm statute confers jurisdiction to the
limits of due process under the Constitution.
Command–Aire Corp. v. Ont. Mech. Sales and Serv.
Inc., 963 F.2d 90, 93 (5th Cir. 1992). Therefore, the
sole inquiry that remains is whether personal jurisdiction
offends or comports with federal constitutional guarantees.
Bullion, 895 F.2d at 216. The Due Process Clause
permits the exercise of personal jurisdiction over a
non–resident defendant when the defendant has
established minimum contacts with the forum state “such
that maintenance of the suit does not offend traditional
notions of fair play and substantial justice.”
Int’l Shoe Co. v. Washington, 326 U.S. 310,