Azarax, Inc. v. Wireless Communications Venture Llc et al

MOTION to Dismiss for Lack of Jurisdiction

W.D. Tex.September 5, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION AZARAX, INC., § as successor in interest to § 14 BIZ HOLDINGS and CONVEY § COMMUNICATIONS S.A. de C.V., § § Plaintiff, § § v. § CIVIL ACTION NO. 1:16-CV-528-LY § WIRELESS COMMUNICATIONS § VENTURE, LLC; STEVE KATKA; § CHERYL SCAPANSKI; WILLIAM § SYVERSON; CHRISTIAN § BORRMAN; ANTONIO GARZA; § STINSON LEONARD STREET LLP; § BENTON COOPERATIVE § TELEPHONE COMPANY; § CENTRAL LTE HOLDINGS LLC; § AND CENTRAL STEARNS COMSIS, § INC. D/B/A ALBANY MUTUAL § TELEPHONE ASSOCIATION; § § Defendants. § DEFENDANT GARZA’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION TO THE HONORABLE LEE YEAKEL, UNITED STATES DISTRICT JUDGE: Defendant Antonio Garza hereby files this his Motion to Dismiss for Lack of Personal Jurisdiction and would respectfully show the following: I. OVERVIEW Plaintiff Azarax, Inc. (“Azarax”) is the successor in interest to a Mexican company called Convey Communications S.A. de C.V. (“Convey Mexico”). Plaintiff’s primary claims in this case arise out of a dispute between Convey Mexico and its former lawyers and alleged co- venturers, all of whom are based in Minnesota. Plaintiff asserts various business tort claims Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 1 of 19 DEFENDANT GARZA’S MOTION TO DISMISS FOR LACK 2 OF PERSONAL JURISDICTION relating to a contract Convey Mexico made with another Mexican company, Nextel Mexico. Plaintiff has also sued Defendant Antonio Garza, the movant here. Garza is Nextel Mexico’s former general counsel and a resident of Mexico City, Mexico. In support of its claims against Garza, Plaintiff makes only conclusory allegations of a conspiracy between Garza and the Minnesota defendants. Though the conclusory allegations are wholly unsupported, even if they had support, Plaintiff alleges no facts that would support the exercise of personal jurisdiction over Garza in Texas (or any other state in the United States), and indeed there are no such facts. The Minnesota Defendants in this case filed a Motion to Dismiss for Lack of Personal Jurisdiction, in which they pointed out the absence of facts in this case to support the exercise of personal jurisdiction over them in Texas. The Court granted Plaintiff an extension until September 2, 2016 to file its response. Plaintiff chose to make no substantive response, however, and has essentially conceded the absence of any case-related facts that would support the assertion of personal jurisdiction in Texas. Plaintiff and the Minnesota Defendants have now stipulated to a transfer of this case to the United States District Court for the District of Minnesota. Garza has not joined and does not join in that stipulation. Instead, by this motion, Garza asks that the Court dismiss him from this case prior to taking any action concerning transfer of this case to the United States District Court for the District of Minnesota. II. BACKGROUND A. Facts Concerning Defendant Garza Defendant Garza lives and works in Mexico. Garza Declaration ¶ 3. He is licensed to practice law in Mexico. Id. He is not licensed to practice law in Texas or Minnesota. Id. ¶ 4. Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 2 of 19 DEFENDANT GARZA’S MOTION TO DISMISS FOR LACK 3 OF PERSONAL JURISDICTION Garza has never lived in Texas or Minnesota. Id. He owns no real or personal property in Texas or Minnesota. Id. ¶ 5. He has only ever been to Texas on approximately seven occasions in his life, none of which have been related to this lawsuit and never for more than a few days. Id. ¶ 7. Garza has never been to Minnesota. Id. No act or communication attributed to Garza in the Complaint occurred in Texas, Minnesota, or any other location in the United States (as to the alleged events that occurred at all). Id. ¶ 9. B. Facts Concerning the Minnesota Defendants and Defendant Borrman The following facts concerning the Minnesota Defendants, which are set forth in their Motion to Dismiss for Lack of Personal Jurisdiction, are undisputed. Plaintiff’s claims against the Minnesota Defendants arise out of agreements between companies based in Mexico and Minnesota. See Minnesota Defendants’ Motion to Dismiss, D.E. 6 at 2. Defendants Wireless Communications Venture, Benton Cooperative Telephone, Central Stearns Comsis, Inc., Albany Mutual Telephone Association, Central LTE Holdings LLC, are all based in Minnesota. Id. at 3. Defendants Cheryl Scapanski and Steven Katka also reside in Minnesota, Id., as does Defendant William Syverson, who works in the St. Cloud Minnesota office of Defendant Stinson Leonard Street LLP. Id. at 4. None works or resides in Texas. Plaintiff’s complaint identifies Defendant Christian Borrman as a resident of London in the United Kingdom. Complaint at 2. C. Facts Alleged by Plaintiff Concerning its Claims Against Garza In support of its claims against Garza, Plaintiff alleges that in August and September of 2014, (i) Defendant Garza exchanged various emails with Convey representative Nicolas Barerra, (ii) that he attended a meeting or meetings with some or all of the Minnesota Defendants, and (iii) that he had communications with others at Nextel Mexico about those communications and meetings. Complaint ¶¶ 32-43. None of these meetings or communications Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 3 of 19 DEFENDANT GARZA’S MOTION TO DISMISS FOR LACK 4 OF PERSONAL JURISDICTION is alleged to have any connection to the state of Texas. Id. Garza was in Mexico for the entirety of this period. Garza Declaration ¶ 9. Garza never traveled to Texas or Minnesota for any of these meetings or communications, or any reason related to Convey Mexico, Barrera, or any of the other defendants in the lawsuit. Id. ¶ 7, 12.1 Garza was in Mexico for all phone or email communications concerning Nextel Mexico’s business dealings with Convey Mexico. Id. ¶ 10. He does not know where other individuals participating in phone and email communications were located when they were made, but Garza has never met any of the individuals mentioned in the lawsuit (including representatives of the Plaintiff and Minnesota Defendants) anywhere in the United States. Id. Aside from scant allegations of some emails and meetings in Mexico about the business relationship between Nextel Mexico and Convey Mexico, Plaintiff alleges no facts concerning Garza whatsoever. Plaintiff makes no allegations that would support its assertion that Garza conspired to commit any of the business torts that Plaintiff alleges were committed by the other defendants in the lawsuit. III. ARGUMENT A. Standard for Deciding a Motion Under Rule 12(b)(2) “The plaintiff has the burden of establishing that the court has personal jurisdiction.” Int’l Energy Ventures Mgmt., L.L.C. v. United Energy Group, Ltd., 818 F.3d 193, 211 (5th Cir. 2016). In resolving a motion to dismiss, the Court “accept[s] the plaintiff’s uncontroverted allegations, and resolve[s] in his favor all conflicts between the facts contained in the parties’ affidavits and other documentation.” Id. 1 Nor, as noted above, has Garza ever traveled to Minnesota at all. Garza Declaration ¶ 6. Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 4 of 19 DEFENDANT GARZA’S MOTION TO DISMISS FOR LACK 5 OF PERSONAL JURISDICTION B. To be Consistent with Federal Due Process, the Exercise of Personal Jurisdiction Requires Minimum Contacts and Must Be Reasonable—i.e., Consistent with Fair Play and Substantial Justice. Where, as here, the plaintiff seeks to invoke the Court’s diversity jurisdiction, personal jurisdiction is available over a defendant only “ if (1) the state’s long-arm statute applies, as interpreted by the state’s courts; and (2) if due process is satisfied under the fourteenth amendment to the United States Constitution.” Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 609 (5th Cir. 2008). “Because the Texas long-arm statute extends to the limits of federal due process, the two-step inquiry collapses into one federal due process analysis.” Id. The due process analysis asks (i) whether the defendant has “‘minimum contacts’ with the forum state (i.e. [whether] the defendant has purposely availed himself of the protections of the forum state),” and (ii) whether “exercising jurisdiction is consistent with ‘traditional notions of fair play and substantial justice.’” Hazim v. Schiel & Denver Book Publishers, 15-20586, 2016 WL 2609772, at *2 (5th Cir. May 5, 2016). In performing the “minimum contacts” inquiry, the Court considers whether either “specific jurisdiction or general jurisdiction” is available. Id. Specific jurisdiction only applies in cases in which the plaintiff’s asserted cause of action arises out of or is related to the nonresident defendant’s contacts with the forum state. Id. General jurisdiction applies when non-resident defendants’ affiliations with the forum State are “so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Id. at *3. C. Garza Lacks Minimum Contacts with Texas (or Minnesota) that Would Support the Exercise of General Jurisdiction Over Him. The test for “continuous and systematic contacts” necessary to support a finding of “general jurisdiction” is “a difficult one to meet, requiring extensive contacts between a defendant and a forum.” Johnston, 523 F.3d at 609 (citing Submersible Sys., Inc. v. Perforadora Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 5 of 19 DEFENDANT GARZA’S MOTION TO DISMISS FOR LACK 6 OF PERSONAL JURISDICTION Cent., S.A., 249 F.3d 413, 419 (5th Cir. 2001)). “[E]ven repeated contacts with forum residents by a foreign defendant may not constitute the requisite substantial, continuous and systematic contacts required for a finding of general jurisdiction ....” Id. (quoting Revell v. Lidov, 317 F.3d 467, 471 (5th Cir. 2002)). “Random, fortuitous, or attenuated contacts are not sufficient to establish jurisdiction.” Id. at 610 (quoting Moncrief Oil Int'l Inc. v. OAO Gazprom, 481 F.3d 309, 312 (5th Cir. 2007)). “The contacts must be reviewed in toto, and not in isolation from one another.” Id. (citing Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 779 (5th Cir.1986); Religious Tech. Ctr. v. Liebreich, 339 F.3d 369, 374 (5th Cir. 2003)). “[V]ague and overgeneralized assertions that give no indication as to the extent, duration, or frequency of contacts are insufficient to support general jurisdiction.” Id. Here, there are not even vague or overgeneralized assertions regarding Garza’s contacts with Texas. On the contrary, Plaintiff has failed to make allegations that would connect Garza to Texas at all. The same is true for Minnesota. And although Garza does not dispute that he has made brief visits to Texas for reasons unrelated to this lawsuit (seven total trips in his lifetime, one of which was a family vacation roughly five years ago, and one of which was a personal visit to a friend approximately 20 years ago, see Garza Declaration ¶ 7), those contacts are nowhere near sufficient to render him subject to personal jurisdiction in Texas. See Johnston, 523 F.3d at 611 (declining to find minimum contacts to support general jurisdiction where the defendant’s employees made “periodic trips” into Texas to service equipment and traveled to Texas to attend trade conventions and where “over a period of five years, [the defendant] sold approximately $140,000 worth of goods and related service contracts to ten different customers located in Texas”); Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1544 (10th Cir. 1996) (finding no general jurisdiction over a nonresident defendant in Colorado despite the fact that he Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 6 of 19 DEFENDANT GARZA’S MOTION TO DISMISS FOR LACK 7 OF PERSONAL JURISDICTION owned a joint bank account in Colorado, once lived there for a four-year period, once owned property there, and often visited there, several times a year); Wilson v. Belin, 20 F.3d 644, 650– 51 (5th Cir. 1994) (rejecting general jurisdiction in Texas over a nonresident defendant who carried malpractice insurance through a Texas law firm for one year, did three legal projects in Texas in three years, gave a seminar in Texas, served as a pro bono consultant to a Dallas historical society, wrote a letter-to-the-editor which appeared in a Texas newspaper and a book which was circulated in Texas, and gave interviews to Texas reporters in Texas); Core–Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1490 (9th Cir. 1993) (holding that a Swedish resident could not be subjected to general jurisdiction in California based on attending five conferences there in four years). D. Garza Lacks Minimum Contacts with Texas (or Minnesota) that Would Support the Exercise of Specific Jurisdiction Over Him. The inquiry into minimum contacts under the “specific jurisdiction” analysis “focuses on the relationship among the defendant, the forum, and the litigation.” Walden v. Fiore, 134 S.Ct. 1115 (2014). The Fifth Circuit “applies a three-step analysis for the specific jurisdiction inquiry: (1) whether the defendant has minimum contacts with the forum state, i.e., whether it purposely directed its activities toward the forum state or purposefully availed itself of the privileges of conducting activities there; (2) whether the plaintiff’s cause of action arises out of or results from the defendant’s forum-related contacts; and (3) whether the exercise of personal jurisdiction is fair and reasonable.” Monkton Ins. Services, Ltd. v. Ritter, 768 F.3d 429, 432–33 (5th Cir. 2014). The last of these three factors—reasonableness of exercising personal jurisdiction—is addressed in the following section. But the Court need not even reach that part of the analysis, however, because there are no minimum contacts connected to this lawsuit that would support the exercise of personal jurisdiction over Garza at all. Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 7 of 19 DEFENDANT GARZA’S MOTION TO DISMISS FOR LACK 8 OF PERSONAL JURISDICTION Any connection Garza has to the facts alleged in this lawsuit is through Mexico, not Texas or anywhere else in the United States. Garza was in Mexico during the entire time of all the alleged communications and meetings referenced in the complaint. Garza Declaration ¶ 9. Garza never traveled to Texas, Minnesota, or any part of the United States for any reason related to the allegations in this lawsuit. Id. ¶ 7. Garza has no knowledge of where others may have been located when they communicated with him by email or phone, but he was in Mexico for all such communications, and any in-person communications occurred in Mexico. Id. ¶¶ 7, 9-10. Garza did not attend or participate in the meetings in Texas or Minnesota or any other location in the United States, that are alleged to have occurred in the papers filed in this case. Id. ¶ 12. Furthermore, the business dealings between Convey Mexico, Nextel Mexico, and the other entities referenced in the complaint were solicited by others, not Garza. Id. ¶ 11. Garza did not seek out or request the participation of any particular person, much less a person or entity located in Texas or Minnesota. Id. Indeed, Garza does not have, and has never had, any personal interest in any of the business dealings referenced in the Plaintiff’s Complaint. On the contrary, he was acting solely in his capacity as an officer of Nextel Mexico in participating in communications about such business dealings. Id.; cf. Ten Mile Indus. Park v. W. Plains Serv. Corp., 810 F.2d 1518, 1527 (10th Cir. 1987) (“Where the acts of individual principals of a corporation in the jurisdiction were carried out solely in the individuals’ corporate or representative capacity, the corporate structure will ordinarily insulate the individuals from the court’s jurisdiction.”).2 2 To the extent that Plaintiff’s theory is that Garza conspired to interfere with Nextel Mexico’s own contract, such a claim is not remotely plausible, factually or legally. As a factual matter, Plaintiff does not allege when if ever the Convey Mexico contract was terminated, nor does it plead that Garza played any role in its termination. But there would be no basis for legal liability even if Garza participated in terminating the contract. See Souter v. Scott & White Mem’l Hosp., Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 8 of 19 DEFENDANT GARZA’S MOTION TO DISMISS FOR LACK 9 OF PERSONAL JURISDICTION The Supreme Court has made clear that “it is the defendant, not the plaintiff or third parties who must create contacts with the forum state.” Walden, 134 S.Ct. at 1125. As the foregoing discussion demonstrates, Plaintiff cannot possibly show that Garza took any action to create contacts with Texas, Minnesota, or any other state in the United States that would give rise to specific jurisdiction in this case. Although there were apparently meetings between other parties in the United States—most of which are alleged to have occurred in Minnesota, and one at the Dallas-Fort Worth International Airport—Garza did not attend any of these meetings. Garza Declaration ¶ 12. Indeed, even if Garza had attended the meetings (which he did not), that would still be insufficient under Fifth Circuit law, especially where, as here, there is no allegation that the contract at issue was governed by the law of the forum state or otherwise connected to the forum state. See Marathon Oil Co. v. A.G. Ruhrgas, 182 F.3d 291, 295 (5th Cir. 1999) (holding that attendance at three meetings in Houston, along with correspondence and phone communications with Texas residents, were an insufficient basis to support a finding of specific or general jurisdiction in Texas). Finally, Plaintiff may attempt to justify specific jurisdiction here based on an analysis supported by its tort claims. Indeed, under some circumstances, courts have authorized personal jurisdiction against defendants who have purposefully directed tortious acts towards the resident of a forum state. See Dontos v. Vendomation NZ Ltd., 582 F. App’x 338, 343 (5th Cir. 2014) (“[W]hen a nonresident defendant commits a tort within the state, or an act outside the state that causes tortious injury within the state, that tortious conduct amounts to sufficient minimum contacts with the state by the defendant to constitutionally permit courts within that state, 105 F.3d 656 (5th Cir. 1996) (“[A]n agent cannot be personally liable for tortious interference with his principal’s contracts.”); Knight v. Sharif, 875 F.2d 516, 526 (5th Cir. 1989) (“A party to a contract cannot be charged with interfering with his own contract.”). Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 9 of 19 DEFENDANT GARZA’S MOTION TO DISMISS FOR LACK 10 OF PERSONAL JURISDICTION including federal courts, to exercise personal adjudicative jurisdiction over the tortfeasor and the causes of actions arising from its offenses or quasi-offenses.”). The tort analysis is inapplicable here for at least two reasons. First, as noted above, Plaintiff states no concrete facts that would support its allegation that Garza committed any tort but instead makes only conclusory and unsupported allegations of a conspiracy. See Brown v. Tull, 218 F.3d 743, at *4 (5th Cir. 2000) (unpublished table op.) (explaining that courts do not credit “[m]ere conclusory allegations of conspiracy”). Furthermore, even if Plaintiff had properly pleaded a conspiracy claim, the alleged victim was Convey Mexico, a company formed and headquartered in Mexico, not Texas. The fact that Convey Mexico later assigned its claims to Azarax, a shell company headquartered in Texas, cannot transform the prior events into a basis for personal jurisdiction over Garza in Texas now (much less Minnesota). Simply put, Garza made no contacts related to the transactions at issue in this case that would put him on notice that he “should have reasonably expected to be haled into Texas court,” nor Minnesota court, nor any other court in the United States. Johnston, 523 F.3d at 618. E. Plaintiff’s Attempt to Hale Garza into a United States District Court Does Not Meet the Reasonableness Test for Fair Play and Substantial Justice. Even if the minimum contacts test were met—either under a general or specific jurisdiction rubric—Plaintiff would still need to show that the exercise of personal jurisdiction over Garza would be reasonable and that it would comport with “fair play and substantial justice.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985). In conducting this part of the analysis, courts consider such factors as “the burden on the defendant,” “the forum State’s interest in adjudicating the dispute,” “the plaintiff’s interest in obtaining convenient and effective relief,” “the interstate judicial system's interest in obtaining the most efficient resolution of controversies,” and the “shared interest of the several States in furthering fundamental Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 10 of 19 DEFENDANT GARZA’S MOTION TO DISMISS FOR LACK 11 OF PERSONAL JURISDICTION substantive social policies.” Id. at 477. In a case like this one, where the defendant is a resident of another country, the “fair play and substantial justice” factors play a particularly prominent role in the analysis. This is because, as courts have recognized, “defending a lawsuit in a foreign country can impose a substantial burden on a nonresident alien.” Core-Vent, 11 F.3d at 1488. Here, Garza has literally no ongoing relationship with or connection to Texas, so requiring him to litigate here would present a substantial burden. The burden analysis also considers the comparative burden on plaintiff of bringing its claims in an alternate forum. Core-Vent, 11 F.3d at 1488-89. According to its own allegations, Plaintiff is the successor-in-interest to a Mexican company that was doing business in Mexico at the time of the events at issue, and whose claims arise out of a dispute over a contract made and subject to being performed in Mexico. No reason exists why Plaintiff could not have brought its claims against Garza in Mexico. Nor does Texas, Minnesota, or any other state in the United States have a greater interest in adjudicating Plaintiff’s claims against Garza, as compared to Mexico. The dispute between Plaintiff and Garza, if any, arises out of facts that occurred in Mexico, concerns parties that were then both residents of Mexico, and likely must be resolved under Mexican law.3 Finally, to the extent that interests of efficiency or judicial economy can play any role in the analysis of a case involving an international defendant such as this one, Plaintiff has proffered no showing as to why adjudication of the claims in a federal court in the United States serves the interests of efficiency or judicial economy, as compared to adjudication of these claims in Mexico. 3 See Docket Entry No. 6-2 at p. 32 (translation of Convey Mexico - Nextel Mexico contract providing for application of the law of the Federal Court of Mexico City). Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 11 of 19 DEFENDANT GARZA’S MOTION TO DISMISS FOR LACK 12 OF PERSONAL JURISDICTION Ultimately, the only facts connecting this case to Texas are that the Plaintiff—which is merely a successor-in-interest to the Mexican real party-in-interest—maintains an address in Texas and has chosen a Texas-based law firm to represent it. But those facts have no proper role in the analysis and should not subject Garza to being sued in a Texas court, nor any other court sitting in the United States. Because subjecting Garza to suit in a Texas (or Minnesota) court would be inconsistent with traditional notions of fair play and substantial justice, the Court should decline to exercise personal jurisdiction over him and dismiss him from this lawsuit. F. The Court Should Dismiss Garza Before Entertaining the Plaintiff’s and Minnesota Defendants’ Stipulation Concerning Transfer. Plaintiff and the Minnesota Defendants have stipulated to the transfer of this case to the United States District Court for the District of Minnesota pursuant to 28 U.S.C. § 1406(a). That provision permits a transfer of a case “to any district or division in which it could have been brought” if a transfer would be “in the interest of justice.” Id. Garza has not joined in the stipulation and asks that this Court resolve this Motion to Dismiss prior to entertaining any transfer of this case to Minnesota. Neither Plaintiff nor the Minnesota Defendants have even attempted—much less made— any showing that it would be in the interest of justice to transfer the claims against Garza to the United States District Court for the District of Minnesota. Given that Plaintiff’s claims against Garza are both conclusory and entirely lacking in any factual basis to support personal jurisdiction over him, the claims are essentially frivolous. It would not be in the interest of justice to defer resolution of his motion to dismiss until after a transfer of this case to another court. Furthermore, as burdensome as being haled into Court in Texas is for Garza, requiring him to participate in litigation in Minnesota would be even more so. First, this Court is nearly Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 12 of 19 DEFENDANT GARZA’S MOTION TO DISMISS FOR LACK 13 OF PERSONAL JURISDICTION 1,000 miles from Mexico City, where Garza resides and works. The distance to the United States District Court for the District of Minnesota is approximately twice that. Second, Garza has already retained the undersigned Texas counsel to represent him in connection with this suit and present this Motion to Dismiss. A transfer of this case to Minnesota prior to a resolution of this Motion to Dismiss would needlessly prolong the proceedings against Garza and potentially require his counsel to associate additional co-counsel in Minnesota. But there are no facts to support personal jurisdiction over Garza in Minnesota either. Thus, transferring the claims against Garza to Minnesota would not further the “interest of justice,” but would instead work directly against it. See In re Ski Train Fire in Kaprun, Austria on November 11, 2000, 257 F. Supp. 2d 648, 651 (S.D.N.Y. 2003) (“To transfer these actions to jurisdictions which may ultimately be found to lack personal jurisdiction would be grossly inefficient and would undermine the goals of the transfer statutes, which are to permit transfer only to a district in which the action ‘could have been brought.’”). For the foregoing reasons, Garza respectfully requests that this Court enter an order dismissing him from this case prior to taking any action on Plaintiff’s and the Minnesota Defendants’ stipulation concerning a transfer of this case to Minnesota. IV. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant Antonio Garza respectfully requests that the Court: (i) grant this his Motion to Dismiss for Lack of Personal Jurisdiction; and (ii) enter an order dismissing the claims against him. Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 13 of 19 DEFENDANT GARZA’S MOTION TO DISMISS FOR LACK 14 OF PERSONAL JURISDICTION Respectfully submitted, /s/ Matthew C. Powers Matthew C. Powers State Bar No. 24046650 mpowers@gdhm.com GRAVES, DOUGHERTY, HEARON & MOODY, P.C. 401 Congress Avenue, Suite 2200 Austin, Texas 78701 (512) 480-5725 Telephone (512) 536-9938 Facsimile COUNSEL FOR DEFENDANT ANTONIO GARZA Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 14 of 19 DEFENDANT GARZA’S MOTION TO DISMISS FOR LACK 15 OF PERSONAL JURISDICTION CERTIFICATE OF SERVICE I hereby certify that on the 5th day of September 2016, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following: Michael D. Sydow Texas Bar No. 19592000 michael.sydow@thesydowfirm.com THE SYDOW FIRM 5020 Montrose Boulevard, Suite 450 Houston, Texas 77006 (713) 622-9700 [Telephone] (713) 552-1949 [Telecopier] Attorneys for Plaintiff Mark T. Mitchell State Bar No. 14217700 mmitchell@gardere.com Frederick W. Sultan, IV State Bar No. 00797524 fsultan@gardere.com GARDERE WYNNE SEWELL LLP 3000 One American Center 600 Congress Avenue Austin, Texas 78701 (512) 542-7072 [Telephone] (512) 542-7272 [Facsimile] Attorneys for Defendants Wireless Communications Venture, LLC; Steve Katka; Cheryl Scapanski; William Syverson; Stinson Leonard Street LLP; Benton Cooperative Telephone Company; Central LTE Holdings LLC; Central Stearns Comsis, Inc.; and Albany Mutual Telephone Association /s/ Matthew C. Powers Matthew C. Powers Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 15 of 19 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION AZARAX, INC., as successor in interest to 14 BIZ HOLDINGS and CONVEY COMMUNICATIONS S.A. de C.V., Plaintiff, v. CIVIL ACTION NO. 1:16-CV-528-LY WIRELESS COMMUNICATIONS VENTURE, LLC; STEVE KATKA; CHERYL SCAPANSKI; WILLIAM SYVERSON; CHRISTIAN BORRMAN; ANTONIO GARZA; STINSON LEONARD STREET LLP; BENTON COOPERATIVE TELEPHONE COMPANY; CENTRAL LTE HOLDINGS LLC; AND CENTRAL STEARNS COMSIS, INC. D/B/A ALBANY MUTUAL TELEPHONE ASSOCIATION; Defendants. DECLARATION OF ANTONIO GARZA UNDER 28 U.S.C. 1746 1. My name is Antonio Garza. I am over the age of 18, have never been convicted of a felony or a crime involving moral turpitude, and am otherwise legally competent to make this Declaration. 2. I am the former Vice President, General Counsel, and head of Telco Management for Comunicaciones Nextel de Mexico, S.A. de C.V. ("Nextel Mexico"). I was employed by Nextel Mexico in this role at all times during the time of the allegations described in Plaintiff's Complaint in this lawsuit. 1 Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 16 of 19 3. I currently live and work in Mexico City, Mexico, and I am licensed to practice law in Mexico. During the entirety of the period referenced by the Plaintiff in the Complaint in this lawsuit, I lived and worked in Mexico City, Mexico. 4. I have never lived in Texas or Minnesota. I am not licensed to practice law in either state. 5. I do not own any real property or personal property in Texas or Minnesota. 6. I have never been to Minnesota. 7. I have been to Texas seven times in my life. None of the trips lasted longer than a few days. One of those occasions was approximately 20 years ago to visit a friend. One was approximately five years ago for a family vacation. The other five trips were work related, but none had any connection to the events and allegations referenced in Plaintiff's complaint or this lawsuit. I have never traveled to Texas or Minnesota for any purpose related to Convey Mexico, Nicolas Barrera, the other defendants in the lawsuit, any of the allegations in Plaintiff's complaint, or any purpose otherwise related to the lawsuit. 8. I have never had any dealings with Azarax, Inc. ("Azarax") or any person purporting to represent that entity. I never heard of Azarax prior to receiving notice of this lawsuit. 9. I have reviewed the allegations in Plaintiff's complaint in this lawsuit. I did not have any reason to enter into any conspiracy with the other defendants in this lawsuit (or anyone else), and I did not participate in any conspiracy. Furthermore, with respect to the acts and communications attributed to me in the complaint, none occurred in Texas, Minnesota, or any other location in the United States (to the extent the particular act alleged occurred at all). I was 2 Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 17 of 19 not in Texas (or Minnesota), and to the best of my recollection I was in Mexico for the entirety of the August - September 2014 timeframe referenced in Plaintiffs complaint. 10. I do not know where others may have been located when they communicated with me by email or phone about Convey Mexico or the matters referenced in the Complaint, but I was in Mexico for all such communications, and any in-person communications occurred in Mexico. I have never met any of the individuals mentioned in the lawsuit, including representatives of the Plaintiff and Minnesota Defendants, anywhere in the United States of America. 11. I did not seek out or solicit any business dealings between Convey Mexico, Nextel Mexico, and the other entities referenced in the complaint. I did not seek out or request the participation of any particular person in any such business dealings, much less a person or entity located in Texas or Minnesota. I do not have, and have never had, any personal interest in any of the business dealings referenced in the Plaintiff's Complaint. Rather, I was acting solely in my capacity as an officer of Nextel Mexico in participating in any communications concerning Convey Mexico or the business dealings referenced in the complaint. 12. The complaint and other papers filed in this lawsuit make reference to meetings between others in the United States, including in Minnesota and at the Dallas-Fort Worth International Airport. I did not attend any of these meetings. 13. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on September 5, 2016. Antonio 3 Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 18 of 19 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION AZARAX, INC., as successor in interest to § 14 BIZ HOLDINGS and CONVEY § COMMUNICATIONS S.A. de C.V., § Plaintiff, § § v. § CIVIL ACTION NO. 1:16-CV-528-LY § WIRELESS COMMUNICATIONS § VENTURE, LLC; STEVE KATKA; § CHERYL SCAPANSKI; WILLIAM § SYVERSON; CHRISTIAN § BORRMAN; ANTONIO GARZA; § STINSON LEONARD STREET LLP; § BENTON COOPERATIVE § TELEPHONE COMPANY; § CENTRAL LTE HOLDINGS LLC; § AND CENTRAL STEARNS COMSIS, § INC. D/B/A ALBANY MUTUAL § TELEPHONE ASSOCIATION; § Defendants. § ORDER ON DEFENDANT GARZA’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION On this date, the Court considered Defendant Antonio Garza’s Motion to Dismiss for Lack of Personal Jurisdiction. Having considered the motion, along with any responses and replies on file, as well as the case file as a whole, the Court now enters the following orders: IT IS ORDERED that Defendant Antonio Garza’s Motion to Dismiss for Lack of Personal Jurisdiction is GRANTED; and IT IS ORDERED that all claims asserted against Antonio Garza in the above- styled cause are DISMISSED. THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE Case 1:16-cv-00528-LY Document 14 Filed 09/05/16 Page 19 of 19