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Bulkley & Associates, LLC v. Department of Industrial Relations

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

December 13, 2019

BULKLEY & ASSOCIATES, LLC Plaintiff,
v.
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD OF THE STATE OF CALIFORNIA, et al. Defendants,

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE

         Pending before the Court are Defendant's Motion to Dismiss for Lack of Personal Jurisdiction (FRCP 12(b)(2)) (Dkt. #12) and Bulkley & Associates, LLC's Motion for Temporary Restraining Order and Preliminary Injunction (Dkt. #6).

         After consideration, the Court is of the opinion that Defendant's Motion to Dismiss for Lack of Personal Jurisdiction (FRCP 12(b)(2)) (Dkt. #12) should be GRANTED and Bulkley & Associates, LLC's Motion for Temporary Restraining Order and Preliminary Injunction (Dkt. #6) should accordingly be DENIED as moot.

         BACKGROUND

         I. Factual Summary

         The facts at issue here are identical in every respect to those in this Court's decision in Bulkley & Assocs., LLC v. Occupational Safety & Health Appeals Bd. Of Cal., No. 4:18-cv-642, 2019 WL 2411544 (E.D. Tex. June 7, 2019) (Bulkley I), save one distinction. As explained in the following discussion, Plaintiff now claims to have evidence that Defendants established minimum contacts with the state of Texas by conducting an investigation there. Defendants unequivocally deny ever traveling to Texas or conducting an investigation there and provide affidavits declaring the same. The facts giving rise to this dispute, which are reproduced virtually verbatim from the Court's Bulkley I decision, are provided below.

         Plaintiff Bulkley & Associates, LLC is a Texas limited liability company that transports refrigerated goods. This can require travelling across state lines. At some point, a Bulkley delivery driver fell out of the back of his truck while driving through Salinas, California. This incident prompted the State of California Department of Industrial Relations, Division of Occupational Safety and Health (the “Division”) to issue three citations against Bulkley for “(a) fail[ing] to timely report the injury to [the appropriate California agency]; (b) fail[ing] to develop and implement an ‘Injury and Illness Prevention Program;' and (c) fail[ing] to require what California believes is appropriate foot protection for drivers working at customer locations and climbing in and out of refrigerated trailers” (Dkt. #9 at p. 5).

         Bulkley appealed the citations to the Occupational Safety and Health Appeals Board of the State of California (the “Appeals Board”). Bulkley argued that the Agency “lacked jurisdiction over Bulkley, both as a matter of California statutory law and federal constitutional law, ” since Bulkley “is not an employer of the State of California, is engaged in interstate commerce, and does not have a place of business in the State of California” (Dkt. #9 at p. 7). But the Appeals Board disagreed and “refused to set these citations aside” (Dkt. #9 at p. 8).

         Bulkley subsequently filed a writ of mandamus in the District Court of Hopkins County, Texas 62nd Judicial District (the “Hopkins County District Court”) seeking to overturn the Appeals Board decision. The Division and the Agency (collectively, the “California Public Entities”) subsequently removed the case to this Court, and the Court dismissed the action for lack of personal jurisdiction. Bulkley I, 2019 WL 2411544, at *6.

         II. Procedural History

         On September 25, 2019, this action was commenced in the District Court of Hopkins County, Texas. On October 8, 2019, this action was removed (Dkt. #1). On October 10, 2019, Plaintiff filed a motion for a temporary restraining order and preliminary injunction (Dkt. #6). On October 16, 2019, the California Public Entities filed a response (Dkt. #7). On October 21, 2019, Plaintiff filed a reply (Dkt. #8).

         On November 8, 2019, Plaintiff filed an amended complaint (Dkt. #11). On November 27, 2019, the California Public Entities filed a motion to dismiss for lack of personal jurisdiction (Dkt. #12). On December 11, 2019, Plaintiff filed a response (Dkt. #13).

         LEGAL STANDARD

         Federal 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, ...


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