United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER SENIOR JUDGE.
breach of contract action, third-party defendants Daniel Zang
(“Zang”) and Mark Gorman (“Gorman”),
officers of Maiden Biosciences, Inc. (“Maiden”),
move under Fed.R.Civ.P. 12(b)(2) to dismiss the claims of
defendants-third-party plaintiffs MPM Medical, Inc.
(“MPM”) and RBC Life Sciences, Inc.
(“RBC”) for lack of personal jurisdiction. MPM
and RBC oppose the motions and seek leave to amend their
third-party complaint. For the reasons that follow, the court
grants Zang's and Gorman's motions to dismiss, denies
MPM and RBC's request for leave to amend, and dismisses
the third-party actions of MPM and RBC against Zang and
Gorman without prejudice by Rule 54(b) final judgment.
case is the subject of several prior memorandum opinions and
orders. See Maiden Biosciences, Inc. v. MPM Med.,
Inc., 2019 WL 2075585, at *1 (N.D. Tex. May 10, 2019)
(Fitzwater, J.); Maiden Biosciences, Inc. v. MPM Med.,
Inc., 2019 WL 935478, at *1 (N.D. Tex. Feb. 26, 2019)
(Fitzwater, J.); Maiden Biosciences, Inc. v. MPM Med.,
Inc., 2018 WL 2416071, at *1 (D. Md. May 29, 2018). The
court will therefore recount only the background facts and
procedural history that are pertinent to this decision.
Maiden, a Maryland corporation, is a biotechnology company
that manufactures wound dressing. Maiden and MPM, a Texas
corporation and wholly-owned subsidiary of RBC that
distributes medical devices, entered into a supply agreement
whereby MPM would purchase an annual minimum quantity of
wound dressing and pay for a separate order of custom-made
products. When MPM allegedly failed to uphold its end of the
bargain, Maiden filed suit against MPM and RBC for breach of
contract in the District of Maryland.
their May 10, 2019 second amended answer to plaintiffs'
second amended complaint and defendants' first amended
counterclaim,  MPM and RBC allege that Gorman and Zang
obtained MPM's trade secrets and used this information to
poach MPM's Primary Collagen Purchaser
(“PCP”) by offering the PCP a much lower price
than MPM charged. MPM and RBC assert that MPM lost sales and
a prospective asset purchase as a result. MPM and RBC assert
counterclaims against Maiden, and third-party claims against
Gorman and Zang, for misappropriation of trade secrets, under
the Defend Trade Secrets Act, 18 U.S.C. §§
1836-1839, and the Texas Uniform Trade Secrets Act, Tex. Civ.
Prac. & Rem. Code § 134A.001, et seq. (West
2019). MPM and RBC also assert claims for breach of fiduciary
duties, conversion and civil theft, breach of contract,
fraud, interference with actual or prospective business
relationships, and promissory estoppel.
1, 2019 and July 3, 2019, respectively, Zang and Gorman moved
to dismiss these claims for lack of personal jurisdiction
under Rule 12(b)(2). MPM and RBC did not respond to these
motions. Instead, without leave of court, MPM and RBC filed
on July 22, 2019 a second amended counterclaim and first
amended third-party claim. This pleading was filed 59 days
after Maiden and RBC filed their May 24, 2019 answer to
defendants' amended counterclaim, 73 days after MPM and
RBC filed their May 10, 2019 second amended answer to
plaintiffs' second amended complaint and defendants'
first amended counterclaim, and 83 days after the April 30,
2019 deadline for filing a motion for leave to amend
pleadings set forth in the scheduling order, as amended.
Then, on August 5, 2019, Zang and Gorman moved anew to
dismiss for lack of personal jurisdiction, contending that
the untimely filings and failures to respond provide
independent bases to dismiss the claims against them. MPM and
RBC have timely responded to the second round of Zang's
and Gorman's dismissal motions filed on August 5, 2019,
and in their response they request leave to amend their
answer under Rule 15(a)(2). Maiden opposes the requests for
leave to amend.
preliminary matter, the court considers whether it should
address the motions to dismiss filed on July 1 and July 3,
2019, the motions to dismiss filed on August 5, 2019, or all
four. The court holds that it must consider the motions filed
on July 1 and 3, but not the motions filed on August 5. This
is because the August 5 motions address the July 22, 2019
second amended counterclaim and first amended third-party
claim of MPM and RBC, which was improperly filed without
leave of court and therefore can be disregarded. See,
e.g., Johnson v. Karr, 2017 WL 2362043, at *1 (N.D. Tex.
May 31, 2017) (Fitzwater, J.) (disregarding improperly-filed
amended third-party complaint). This is also because the
court decides below that the request of MPM and RBC for leave
to amend should be denied. See infra § VI(B).
Because the July 22, 2019 pleading can be disregarded and the
court is denying the request of MPM and RBC for leave to
amend, the court will only consider the motions to dismiss
that are addressed to the May 10, 2019 second amended answer
to plaintiffs' second amended complaint and
defendants' first amended counterclaim, i.e., the first
round of motions to dismiss filed on July 1 and July 3, 2019.
court now turns to the motions to dismiss for lack of
personal jurisdiction under Rule 12(b)(2). “When a
nonresident defendant presents a motion to dismiss for lack
of personal jurisdiction, the plaintiff bears the burden of
establishing the district court's jurisdiction over the
nonresident.” Stuart v. Spademan, 772 F.2d
1185, 1192 (5th Cir. 1985) (citing Thompson v. Chrysler
Motors Corp., 755 F.2d 1162, 1165 (5th Cir. 1985);
D.J. Invs., Inc. v. Metzeler Motorcycle Tire
Agent Gregg, Inc., 754 F.2d 542, 545 (5th Cir. 1985)).
The determination whether a federal district court has in
personam jurisdiction over a nonresident defendant is
bipartite. The court first decides whether the long-arm
statute of the state in which it sits confers personal
jurisdiction over the defendant. If it does, the court then
resolves whether the exercise of jurisdiction is consistent
with due process under the United States Constitution.
See Mink v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th
Cir. 1999). Because the Texas long-arm statute extends to the
limits of due process, the court need only consider whether
exercising jurisdiction over the defendant would be
consistent with the Due Process Clause of the Fourteenth
Amendment. See id.; Alpine View Co. v. Atlas
Copco AB, 205 F.3d 208, 214 (5th Cir. 2000).
The Due Process Clause of the Fourteenth Amendment permits
the exercise of personal jurisdiction over a nonresident
defendant when (1) that defendant has purposefully availed
[it]self of the benefits and protections of the forum state
by establishing “minimum contacts” with the forum
state; and (2) the exercise of jurisdiction over that
defendant does not offend “traditional notions of fair
play and substantial justice.” To comport with due
process, the defendant's conduct in connection with the
forum state must be such that [it] “should reasonably
anticipate being haled into court” in the forum state.
Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir.
1999) (footnotes omitted) (first quoting Int'l Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945); then
quoting World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980)). To determine whether
exercising jurisdiction would satisfy traditional notions of
fair play and substantial justice, the court examines
“(1) the defendant's burden; (2) the forum
state's interests; (3) the plaintiff's interest in
convenient and effective relief; (4) the judicial
system's interest in efficient resolution of
controversies; and (5) the state's shared interest in
furthering fundamental social policies.” Ruston Gas
Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 421 (5th
defendant's contacts with the forum may support either
specific or general jurisdiction over the defendant.
Mink, 190 F.3d at 336. “For the court properly
to assert specific personal jurisdiction, the defendant must
have ‘purposefully directed' his activities at
residents of the forum, and the litigation must result from
alleged injuries that ‘arise out of or relate to'
the defendant's activities directed at the forum.”
Archer & White, Inc. v. Tishler, 2003 WL
22456806, at *2 (N.D. Tex. Oct. 23, 2003) (Fitzwater, J.)
(quoting Burger King Corp. v. Rudzewicz, 471 U.S.
462, 472 (1985)). “General jurisdiction exists when a
defendant's contacts with the forum state are unrelated
to the cause of action but are ‘continuous and
systematic.'” Id. (quoting Mink,
190 F.3d at 336).
district court usually resolves the jurisdictional issue
without conducting a hearing.” Ham v. La Cienega
Music Co., 4 F.3d 413, 415 (5th Cir. 1993) (footnote
When a court rules on a motion to dismiss for lack of
personal jurisdiction without holding an evidentiary hearing,
it must accept as true the uncontroverted allegations in the
complaint and resolve in favor of the plaintiff any factual
conflicts posed by the affidavits. Therefore, in a no-hearing
situation, a plaintiff ...