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denying requests to grant motions to dismiss as unopposed
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CIVIL ACTION NO. SA-06-CA-488-FB.
July 21, 2006
ORDER REGARDING MOTIONS TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Before the Court are motions to dismiss for lack of personal jurisdiction filed by defendants Dr. Fran Murphy (docket no. 6), St. John Fisher College (docket no. 7), and the Rochester Museum and Science Center (docket no. 8), plaintiff's response (docket no. 10) in opposition to the motions, and defendants' replies (docket nos. 12, 14 and 15). Defendants also filed an advisory (docket no. 11) arguing the Court should grant their motions to dismiss for lack of personal jurisdiction as unopposed pursuant to Local Rule CV-7 because plaintiff failed to timely respond to their motions. After careful consideration of the motions, the response, the replies, the pleadings on file and the entire record in this matter, the Court is of the opinion the motions to dismiss for lack of personal jurisdiction filed by Dr. Murphy and St. John Fisher College should be denied and the motion to dismiss for lack of personal jurisdiction filed by the Rochester Museum and Science Center should be granted. The Court is also of the opinion defendants' request to grant their motions to dismiss as unopposed should be denied.
PROCEDURAL BACKGROUND
Plaintiff, Jonas Perkins, brings this action for suit on a sworn account and violations of his civil rights pursuant to 42 U.S.C. § 1983. This case was removed from state court. The named defendants are St. John Fisher College and Dr. Fran Murphy, a professor at the college, the Rochester Museum and Science Center, its president, Kate Bennett, and its board of trustees. President Bennett and the board of trustees have not appeared in this action. Before the Court are motions to dismiss for lack of personal jurisdiction filed by Dr. Murphy, St. John Fisher College and the Rochester Museum and Science Center. Plaintiff filed a response, to which defendants replied. Also before the Court is defendants' request that their motions to dismiss be granted as unopposed pursuant to W. DIST. LOC. R. CV-7(d).LOCAL RULE CV-7(d)
Defendants state that this Court should grant their motions to dismiss as unopposed because plaintiff failed to file a timely response. They rely on Local Rule CV-7(d), which permits a court to grant a motion as unopposed if a party fails to respond timely to the motion. The Fifth Circuit Court of Appeals has "recognized the power of district courts to `adopt local rules requiring parties who oppose motions to file statements of opposition.'" Johnson v. Pettiford, 442 F.3d 917, 918 (2006) (quoting John v. Louisiana, 757 F.2d 698, 708 (5th Cir. 1985)). The Court has not, however, "approved the automatic grant, upon failure to comply with such rules, of motions that are dispositive of the litigation." Id. (internal quotation omitted). For example, in Ramsey v. Signal Delivery Serv., Inc., 631 F.2d 1210, 1213 (5th Cir. 1980), defendants filed a motion to dismiss for failure to exhaust administrative remedies. When plaintiff failed to respond timely, the District Court granted the motion as unopposed, citing a local court rule. Id. at 1213-14. On appeal, the Fifth Circuit vacated the judgment because the few months delay in responding to the motion to dismiss "did not constitute the type of extreme delay" which would warrant dismissal. Id. at 1214. Absent a "clear record of delay or contumacious conduct," the District Court should have considered whether less severe sanctions would suffice. Id. (internal quotation omitted). Similarly in Johnson, 442 F.3d at 917-18, the District Court dismissed petitioner's case solely because two months after the motion to dismiss was filed, petitioner had not filed a response. Id. at 919. The District Court did not explore whether less severe sanctions would suffice, nor was there a clear record of delay or contumacious conduct. Id. The Fifth Circuit Court of Appeals thus found the District Court erred in dismissing the petition. Id.; see also John, 757 F.2d at 709 (summary judgment could not be supported "solely on the ground that [plaintiff] failed to respond to defendant's motion for summary judgment.").
Rule CV-7(d) of the Local Rules of the United States District Court for the Western District of Texas provides: "If any party opposes a motion, the respondent shall file a response and supporting documents as are then available within eleven (11) days of service of the motion. The response shall contain a concise statement of the reasons and opposition to the motion and citations of the specific legal authorities upon which the party relies. The response is limited to ten (10) pages unless otherwise authorized by the Court. If there is no response filed within the time period prescribed by this rule, the Court may grant the motion as unopposed. W. DIST. LOC. R. CV-7(d) (emphasis added).
In this case, plaintiff filed his response just two days after the due date set in defendants' advisory. There is no clear record of delay or contumacious conduct, nor is any other evidence which would indicate this is the type of case which would warrant the severe sanction of dismissal. Under these circumstances and given Fifth Circuit precedent, this Court declines to grant defendants' motions to dismiss for lack of personal jurisdiction as unopposed.
FACTUAL BACKGROUND
Dr. Fran Murphy is a resident of the State of New York. St. John Fisher College is an educational institution and corporation located in Rochester, New York. Dr. Murphy is employed as a professor by St. John Fisher College. The Rochester Museum and Science Center, located in the same city as St. John Fisher College, is also an educational institution and corporation organized under the laws of the State of New York.
Plaintiff, a sculptor and resident of the State of Texas, is employed as an artist. He alleges Dr. Murphy, on behalf of St. John Fisher College, began an "open account" and ongoing business relationship with plaintiff when in January of 2002, he visited plaintiff's studio at Hemisfair Plaza, San Antonio, Bexar County, Texas. During this initial visit, Dr. Murphy, on behalf of St. John Fisher College, purchased a small bust of Martin Luther King, Jr. for $50 for a co-worker, also from St. John Fisher College. Dr. Murphy also saw a plaster model 1/3 life-size statue of civil rights activist Cesar Chavez and commissioned plaintiff to do a similar bronze statute for the college for $450. He further discussed with plaintiff the possibility of plaintiff doing a bronze sculpture of Father John R. Cavanaugh, an important individual in the history of St. John Fisher College. Dr. Murphy further arranged for the St. John Fisher College to purchase for its library from plaintiff a bronze piece, which plaintiff had in existence, of Martin Luther King, Jr., for $6,000. Additionally, and of import to this case, Dr. Murphy also saw a small Frederick Douglass clay model which he found "interesting."
St. John Fisher College, acting through Dr. Murphy, ultimately commissioned plaintiff to do the bronze sculpture of Father John R. Cavanaugh at a mutually agreeable price of $50,000. Plaintiff alleges that during this same time period Dr. Murphy was also discussing the possibility of him doing a Frederick Douglass bronze for the college. Plaintiff maintains Dr. Murphy made it clear St. John Fisher College wanted a Frederick Douglass bronze, but they wanted a much younger Frederick Douglass than the one Dr. Murphy had seen in plaintiff's studio in January of 2002, more in keeping with a historically accurate portrayal of Frederick Douglass during the time period he actually lived in Rochester, New York. Plaintiff states he did not have a picture of a young Frederick Douglass from which to work. He states that Dr. Murphy was specific that he wanted a young Frederick Douglass as he was pictured in a St. John Fisher College program issued on January 20, 2003. Plaintiff maintains "Dr. Murphy procured [for plaintiff] the photograph for this one of a kind bronze."
In April of 2003, Dr. Murphy, still representing St. John Fisher College, made a trip with his wife to San Antonio, Texas, and visited plaintiff's studio to see the progress on the Father Cavanaugh clay model which plaintiff was preparing to cast in bronze. Plaintiff contends Dr. Murphy also finalized on behalf of St. John Fisher College the requirements of the sculpture of the "youthful" Frederick Douglass, consummated plaintiff's commission to do this one of a kind bronze, and came to a mutually agreeable price of $40,000. Plaintiff further asserts time "was of the essence and the bronze was required to be delivered in a short time, for activities were scheduled by defendants, and others, to honor Frederick Douglass and other famous African Americans." Plaintiff worked on both the Father Cavanaugh and the Frederick Douglass bronze pieces simultaneously.
Plaintiff completed the pieces and personally delivered them to Dr. Murphy in upstate New York on June 10, 2003. Plaintiff states that Dr. Murphy invited him into his home and took him sailing. However, at some point during the day, Dr. Murphy apparently announced that payment would be made for the Father Cavanaugh piece, but not for the Frederick Douglass bronze. Plaintiff states he then "made it known that he could retain the piece and re-deliver it when payment was made." It is evident, however, that other arrangements were carried out which enabled the Rochester Museum and Science Center to exhibit the bronze. Plaintiff attaches to his complaint a loan form executed by Dr. Murphy, on behalf of St. John Fisher College, authorizing the Rochester Museum and Science Center to exhibit the Frederick Douglass bronze. The form values the piece at $40,000. It thus appears plaintiff left New York without the bronze and without the money, and now seeks to hold defendants liable for the $40,000 and for violations of his federal civil rights he maintains were incurred as a result of this process.
Defendants deny they offered to purchase the Frederick Douglass bronze. They contend, "when plaintiff delivered the commissioned statue of Father Cavanaugh to Rochester, New York, he brought the Frederick Douglass bronze attempting to sell it." Defendant Kate Bennett filed an affidavit on behalf of the Rochester Museum and Science Center. President Bennett states that, while in Rochester, plaintiff attended a dinner party held by [Dr. Murphy] wherein plaintiff made arrangements with the Rochester Museum and Science Center to show the bronze at an upcoming Frederick Douglass exhibit." She denies any implication from plaintiff that the museum orally offered to purchase the bronze when plaintiff brought it to New York.
PERSONAL JURISDICTION
Dr. Murphy, St. John Fisher College, and the Rochester Museum and Science Center move to dismiss this action on the ground that this Court lacks personal jurisdiction over them. The Due Process Clause of the Fourteenth Amendment guarantees no federal court may assume jurisdiction in personam of a non-resident defendant unless the defendant has meaningful "contacts, ties, or relations" with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945). Jurisdiction may be general or specific. When a defendant has "continuous and systematic general business contacts" with the forum state, Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408, 415 (1984), the Court may exercise "general" jurisdiction over any action brought against this defendant. Id. at 414. When contacts are less pervasive, the Court may still exercise "specific" jurisdiction "in a suit arising out of or related to the defendant's contacts with the forum." Id.
Here, defendants lack sufficient contacts with the State of Texas for the Court to exercise general jurisdiction. Dr. Murphy resides in the State of New York. Although he states that he travels to San Antonio once a year to speak at the Texas Superintendent Academy, there is no indication he conducts business here. Neither St. John Fisher College nor the Rochester Museum and Science Center conducts business, has employees or maintains operations in the State of Texas. Therefore, the Court must examine whether it may exercise specific personal jurisdiction over these defendants.
The Fifth Circuit Court of Appeals uses a three part test for determining when a court may exercise specific jurisdiction over a defendant: (1) the nonresident defendant must have purposefully availed himself or itself of the privilege of conducting activities in the forum by some affirmative act or conduct; (2) the plaintiff's claim must arise out of or result from the defendant's forum-related activities; and (3) the defendant's conduct must show the defendant "reasonably anticipates being hauled into court" in the forum state. Luv N' Care v. Insta-Mix, Inc., 438 F.3d 465, 469-70 (5th Cir. 2006) (quoting World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)). The plaintiff must establish each of these factors for jurisdiction to lie. Wyatt v. Kaplan, 686 F.2d 276, 280 (5th Cir. 1982).
With respect to the first factor, the Court finds Dr. Murphy and St. John Fisher College purposefully availed themselves of the privilege of conducting activities in the State of Texas through their communications with plaintiff and his submissions to the college. See id. (contacts are sufficient to withstand constitutional scrutiny where defendant knowingly benefits from availability of particular state's market); see also Johannsen v. Brown, 788 F. Supp. 465, 468 (D. Or. 1992) (New York magazine and individual defendants "had purposefully availed themselves of conducting business in State of Oregon though their correspondence with Johannsen [an Oregon artist and the plaintiff] and his submissions to Relix [a New York magazine and one of the defendants]."). The same cannot be said of the Rochester Museum and Science Center, however. Plaintiff alleges only that this New York defendant "displayed the Frederick Douglass bronze in a special Frederick Douglass display in its museum knowing that the property had not been paid for. . . ." This is not sufficient for the Court to conclude that the Rochester Museum and Science Center purposefully availed itself of the privilege of conducting activities in the State of Texas.
With respect to the second factor, it is undisputed the claim of plaintiff arises out of one of his submissions to Dr. Murphy and St. John Fisher College: the Frederick Douglass bronze. Defendants argue that "only the contacts that relate to or give rise to plaintiff's current suit in regards to the Frederick Douglass bust are relevant to the specific jurisdiction analysis." Plaintiff, however, would not have taken the Frederick Douglass bronze to New York were it not for his previous dealings with defendants, particularly the submission of the Father Cavanaugh statute. Inasmuch as the relevant events are inextricably intertwined, the Court declines to consider only the contacts which relate to the Frederick Douglass bronze when determining that plaintiff's claim arises out of or results from defendants' Texas-related activities.
Moreover, due process is satisfied when an artist's claim "arises out of one of his submissions" to defendant consumers.Johannsen, 788 F. Supp. at 468. In Johannsen, an Oregon artist brought an action against a New York magazine and individual defendants for copyright infringement. Id. at 467. During the 1980s, the plaintiff had submitted a number of pieces of graphic art to the defendant magazine. Id. In 1987, an individual defendant invited the plaintiff to create a cover for a future issue of the publication. Id. In his studio in the State of Oregon, plaintiff created a colored pencil and graphite illustration entitled "American Relix." Id. Plaintiff submitted "American Relix" to defendants and it was featured on the cover of the magazine. Johannsen, 788 F. Supp. at 467. Shortly thereafter, plaintiff learned poster reproductions had been made without his permission. Id. He filed suit in his home state of Oregon. Id. In addressing the New York defendants' motion to dismiss for lack of personal jurisdiction, the Court found the "arises out of" element was present because it was undisputed the claim of the artist arose out of "one of his submissions" to the magazine. Id. at 468. Similarly, in this case, plaintiff's claim arises out of one his submissions to Dr. Murphy and St. John Fisher College. This Court therefore finds the second factor has been met.
Once the plaintiff presents a prima facie case that the defendants purposefully availed themselves of the privilege of conducting activities in the forum state, and the claims in the complaint arise out of these forum related activities, the burden shifts to the defendants to show the exercise of personal jurisdiction would be unreasonable. Luv N' Care, 438 F.3d at 469-70, 473. The Court weighs five factors to determine whether the exercise of jurisdiction is reasonable: (1) the burden on the nonresident defendant; (2) the interest of the forum in adjudicating the dispute; (3) the interest of the plaintiff in securing effective relief; (4) the interest of the interstate judicial system in the efficient administration of justice; and (5) the shared interest of the several states in furthering fundamental social policies. Id. at 473.
In weighing these factors, the Court concludes neither Dr. Murphy nor St. John Fisher College have shown that the exercise of personal jurisdiction over them by this Court would be unreasonable. These defendants should have foreseen that any failure to compensate plaintiff would have injured him in the State of Texas. Id. at 474 (it is not unreasonable to ask defendants to defend themselves in forum state because defendants had availed themselves of benefits of that state); Johannsen, 788 F. Supp. at 468 (New York defendants should have foreseen any violation of artist's rights would have injured him in his home state). The State of Texas also has an interest in resolving account disputes to which its citizens are parties. Luv N' Care, Ltd., 438 F.3d at 474 (forum state "obviously has some legitimate interest in litigating matter" involving business transactions of its citizens); Johannsen, 788 F. Supp. at 468 (forum state has an interest in resolving dispute to which its artist/citizen is party). Moreover, the burden or inconvenience to defendants of adjudicating this dispute in Texas is no greater than the burden or inconvenience to plaintiff of adjudicating his claim in the State of New York. Johannsen, 788 F. Supp. at 468 (burden or inconvenience to defendants/consumers of adjudicating dispute in artist's state of residence no greater than burden or inconvenience to plaintiff/artist of adjudicating his claim in State of New York). Under these circumstances, traditional notions of fair play and substantial justice do not require that plaintiff's suit against Dr. Murphy and St. John Fisher College be dismissed for want of personal jurisdiction.
IT IS THEREFORE ORDERED that Defendant, Dr. Fran Murphy's Motion to Dismiss for Lack of Personal Jurisdiction (docket no. 6) and Defendant, St. John Fisher College's Motion to Dismiss for Lack of Personal Jurisdiction (docket no. 7) are DENIED;
IT IS FURTHER ORDERED that Defendant, Rochester Museum and Science Center's Motion to Dismiss for Lack of Personal Jurisdiction (docket no. 8) is GRANTED and this defendant DISMISSED as a party-defendant to this action.
It is so ORDERED.