United States District Court, N.D. Texas, Dallas Division
NS412, LLC and NATURALLY SLIM, INC.
CHANTEL RAY FINCH a/k/a CHANTEL RAY
MEMORANDUM OPINION AND ORDER
GREN SCHOLER, UNITED STATES DISTRICT JUDGE
Order addresses Defendant Chantel Ray Finch's
("Defendant") Motion to Dismiss or, in the
Alternative, Transfer Venue [ECF No. 7], For the reasons
stated below, the Court denies the Motion.
NS412 LLC and Naturally Slim, Inc. ("Plaintiffs"),
along with their affiliates, provide a behavioral-based
nutritional intervention program under the mark NATURALLY
SLIM® ("NS Program"). Compl. ¶ 1. The NS
Program is a technology-based, modeled behavior program that
is designed and administered by experienced professionals,
Id., ¶ 15. The NS Program includes video
lessons and digital materials that are available to users
online via a secure login. Id. ¶ 16.
own 79 copyright registrations and have 117 pending
applications for copyright registrations for the NS Program
materials. Id. ¶ 18. They also own 14 federal
trademark registrations used in connection with the NS
Program. Id. Plaintiffs and their affiliates require
users of the program to agree, both upon registration and
prior to viewing each video, that their access to the NS
Program is for personal use only and that they will not share
the contents with nonusers, Id. ¶ 17. A person
who desires to participate in the NS Program must create an
account. Resp. to Mot. to Dismiss ("Resp.") ¶
5. When a person registers for the NS Program, he or she is
presented with certain "Legal and Release Forms."
Id., ¶ 6. That person must agree to each item
by clicking a box. Id. After clicking all of the
boxes and entering an electronic signature, he or she can
access a list of program materials, Id. ¶ 8.
However, before the person can watch a video, he or she is
presented with a two-paragraph "Acknowledgement"
and must click "Agree" yet again. Id.
August 2018, Plaintiffs received an email from a user of the
NS Program. Compl. ¶ 2. That person alerted Plaintiffs
to a book titled Waist Away the Chantel Ray Way
("Book") and said the Book was "in many ways
very much identical" to the NS Program. Id.
(emphasis omitted). Soon after, Plaintiffs learned that
Defendant, the author and self-publisher of the Book, was a
registered user of the NS Program. Id. ¶ 3.
Defendant became a user of the NS Program on or about
September 27, 2017. Id. ¶ 19. According to
Plaintiffs, Defendant "contractually agreed to the
restrictions placed on each [u]ser pertaining to access to
and use of the NS Program." Id. ¶ 20.
Plaintiffs purchased the Book and "realized that it was
substantially similar to the NS Program and even used certain
of Naturally Slim, Inc.'s federally registered
trademarks." Id. ¶ 4.
on the foregoing allegations, Plaintiffs bring causes of
action for breach of contract, fraud in the inducement,
copyright infringement, and unfair competition. Defendant
moves to dismiss the Complaint, arguing that this Court does
not have personal jurisdiction over her. In the alternative,
Defendant requests that the Court either dismiss the
Complaint for improper venue or transfer the action to the
Eastern District of Virginia.
Validity of Forum Selection Clause
argues that the Court lacks personal jurisdiction over her.
The plaintiff bears the burden of making a prima facie
showing that a court has personal jurisdiction over a
defendant. Monkton Ins. Servs., ltd. v. Ritter, 768
F.3d 429, 431 (5th Cir. 2014). In considering a motion to
dismiss pursuant to Rule 12(b)(2), the court must accept the
plaintiffs "uncontroverted allegations, and resolve in
its favor all conflicts." Alpine View Co. v. Atlas
Copco AB, 205 F.3d 208, 215 (5th Cir. 2000). The court
may consider "affidavits, interrogatories, depositions,
oral testimony, or any combination of the recognized methods
of discovery." Stuart v. Spademan, 772 F.2d
1185, 1192 (5th Cir. 1985) (citation omitted).
contend that Defendant is bound by a forum selection clause
contained in the NS Program's Terms and Conditions and
that the clause "is dispositive of [Defendant's]
challenges to personal jurisdiction and venue." Resp.
\;see also CDx Holdings, Inc. v. Goldenson, Civ. A.
No. 3:12-CV-394-N-BH, 2012 WL 13018985, at *6 (N.D. Tex. Oct.
26, 2012) ("Personal jurisdiction is subject to waiver.
A common method of waiver is a contractual forum selection
clause." (citation omitted)). Because the forum
selection clause, if applicable and enforceable, would
foreclose Defendant from challenging personal jurisdiction,
Court will analyze the validity of the clause first. See
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 589
(1991) ("Because we find the forum selection clause to
be dispositive of th[e] question, we need not consider
petitioner's constitutional argument as to personal
jurisdiction," (citation omitted)).
within the NS Program's Terms and Conditions is the
following forum selection clause:
This Agreement shall be construed in accordance with the laws
of the State of Texas, without regard to any conflict of law
provisions. Any dispute arising under this Agreement shall be
resolved exclusively by the state ...