United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
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).
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.
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.
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).
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).
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.
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).
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
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.