I report on issues when others have to deal with being in court so I thought I’d write about a very unusual event that happened to me as well. I thought, if I can write about others then I should be brave enough to cover my own issues also.
On October 7, 2011 Lloyd Ward and Lloyd Ward & Associates, PC filed suit against myself, my wife, and old non-profit company that closed in 2006, a UK company, GetOutOfDebt.org, Inc, which does not exist, and GetOutOfDebt.org.
The suit asks for $2,100,000 in damages.
Here is what the suit alleges:
Defendant Stephen Jeffery Rhode (hereinafter “Steve Rhode”) originated MYVESTA.ORG, INC., doing business as MYVESTA and MYVESTA.ORG (formerly known as Debt Counselors of America, Inc.) hereinafter “MYVESTA.” MYVESTA provided a toll free phone number (800) MYVESTA and an Internet website at www.myvesta.org. MYVESTA, and others working in concert or participation with it, engaged in the negotiation of individuals’ personal debt (primarily credit card debt). MYVESTA offered its “AllPaid” and “Debt Eliminator” programs to consumers stating that with its programs “all your debts can be paid off in the shortest amount of time, paying the least amount of interest.”
MYVESTA’s description of the services of its AllPaid program included the convenience of MYVESTA taking care of a consumer’s monthly bills and reconciling a consumer’s bank statements. MYVESTA, among other services, claimed that it arranged to receive money from the consumer for the purpose of paying a consumer’s creditors. MYVESTA stated that it will contact a consumer’s creditors and will investigate and help the consumer dispute account problems. Based upon the foregoing, the California Corporations Commissioner determined that MYVESTA engaged in the business of check selling, bill paying and prorating as defined in the Check Sellers, Bill Payers and Proraters Law without a license from the California Corporations Commissioner. The California Corporations Commissioner, pursuant to Financial Code section 12103, ordered MYVESTA.ORG, INC., doing business as MYVESTA.ORG and MYVESTA, (formerly known as Debt Counselors of America, Inc.), to cease doing business in the State of California in December of 2002 under a cease and desist order, which is attached hereto for illustration.
MYVESTA.ORG, INC., began operating “internationally,” under the non de plum of MYVESTA.ORG.UK, providing identical services as MYVESTA.ORG, INC. MYVESTA.ORG, INC., was incorporated in the State of Maryland, registered to do business in the State of Oregon, and through its Internet website, provided services throughout the United States. MYVESTA.ORG, INC., also operated under the names MYVESTA.ORG.UK and MYVESTAFOUNDATION.ORG. The officers, directors and owners of MYVESTA.ORG, INC.’s, along with its various names, were Defendants Steve Rhode and his wife Pamela S. Rhode. In March of 2004, MYVESTA.ORG, INC.’s corporate charter was revoked in both Maryland and Oregon for failure to file corporate forms and failure to pay required state fees. Since the revocation of those licenses and the issuance of the Cease and Desist Order from the California Corporations Commissioner, all MYVESTA.ORG entities’ website now forward and open to GETOUTOFDEBT.ORG’s website.
Defendant Steve Rhode also originated GETOUTOFDEBT.ORG, whose Internet website is located at www.getoutofdebt.org. GETOUTOFDEBT.ORG, and others working in concert or participation with it, engaged in the business of negotiation of individuals personal debt (primarily credit card debt). GETOUTOFDEBT. ORG, was a Maryland Corporation and again, the officers, directors and shareholders were Defendants Steve Rhode and his wife Pamela S. Rhode. GETOUTOFDEBT.ORG’s hosting services were located in San Antonio Texas, which allowed them to provide services throughout the United States. In November of 2004, GETOUTOFDEBT.ORG’s corporate charter was also revoked for failure to file corporate forms and failure to pay state fees.
Defendants Steve Rhode and his wife Pamela S. Rhode have continued to operate GETOUTOFDEBT.ORG (along with the MYVESTA.ORG entities’ websites which forward and open to GETOUTOFDEBT.ORG’s) without any proper corporate formalities. As all corporate charters have now been revoked by Maryland, Defendants Steve Rhode and his wife Pamela S. Rhode are personally liable for GETOUTOFDEBT.ORG and the various MYVESTA.ORG entities, and personally liable for any action of which these entities would be liable.
GETOUTOFDEBT.ORG, operates its website, claiming it as a “Blog” to “assist people in getting out of debt,” and includes a “Scam Report.” However, GETOUTOFDEBT.ORG, is actually a website which charges debt settlement companies a fee for advertising on the site, requires some website advertisers to retain Steve Rhode as a “consultant,” or “administrator,” while charging the same advertising sites fees for such “Services,” or even required the advertising website to place Steve Rhode on the company’s board of directors as a paid
GETOUTOFDEBT.ORG, then posts various “Scam Reports” on companies who do not advertise or employ Defendant Steve Rhode and encourages readers to “get their money back,” so that they may retain or hire the companies which do advertise or employ Defendant Steve Rhode. In fact, GETOUTOFDEBT.ORG has never posted a “Scam report” or alert on any of its advertisers or employers, though other competing “Consumer Protection Blog Sites,” sites have posted such alerts, including alerts about GETOUTOFDEBT.ORG itself.
GETOUTOFDEBT.ORG’s advertisers are competitors of Plaintiff Lloyd Ward & Associates PC (“LWA”), which provides representation and protection of persons regarding both compliance and collection efforts of creditors under the Federal Fair Credit Reporting Act (15 USCS ‘1692 et seq.). The primary difference being that Plaintiff LWA provides legal services, which Defendant Steve Rhode and GETOUTOFDEBT.ORG’s advertisers cannot provide.
Beginning in January of 2010, Defendant Steve Rhode, through GETOUTOFDEBT.ORG’s website (which is owned and operated by Defendant Steve Rhode and Defendant Pamela Rhode) began running “Scam Alerts,” regarding Plaintiffs LWA and Lloyd Ward (“Ward”) individually, and urging persons, including clients of Plaintiff LWA and Ward, to either (1) terminate the their existing contracts with Plaintiffs LWA and Ward and employ one of the advertisers/employers of Defendant Steve Rhode/GETOUTOFDEBT.ORG, or (2) not do business with Plaintiffs LWA or Ward and instead employ one of the advertisers/employers of Defendant Steve Rhode/GETOUTOFDEBT.ORG.
Defendants’ “Scam Alerts,” included statements that Plaintiffs LWA and Ward were not licensed to conduct business in manner in which LWA and Ward conducted business, that Plaintiffs were performing no services while collecting fees, and that Plaintiffs’ businesses were a “Fraud and sham.”
Such tactics were intentional and malicious and intended to both solicit clients from Plaintiffs LWA and Ward, and to enjoin clients from employing Plaintiff LWA and Ward. Further, such publications were made public via the Internet to thousands of viewers and clients, which contained statements made by Defendant Steve Rhode/GETOUTOFDEBT.ORG that were untrue, without merit, defamatory, slanderous and libel.
Beginning in March of 2010, in a further effort to convert clients of Plaintiffs LWA and Ward, Defendant Steve Rhode/GETOUTOFDEBT.ORG began publishing articles on how to obtain a full refund of all fees paid to Plaintiffs LWA and Ward, even though the fees had been earned under the terms of the employment contract for services provided by LWA and Ward.
Though Defendants’ website, Defendant Steve Rhode/GETOUTOFDEBT.ORG began instructing the clients of Plaintiffs LWA and Ward to file a bar complaint to obtain a “full refund” and even published a “HOW TO GET OUT OF A DEBT RELIEF PROGRAM AND GET A BIG REFUND.” That article provides at page 2, that the clients should draft letters to the State Attorney General, Better Business Bureau, and the Federal Trade Commission. The article, at page 3, instructs the client to threaten to file a state bar complaint against Plaintiffs should Plaintiffs LWA and Ward refuse to provide the client a full refund. At page 4, the article states that if Plaintiffs LWA and Ward still refuse to provide a full refund, the client should send the draft letters and file the state bar complaints.
A review of the March 2010 statement on the website made by Defendant Steve Rhode/GETOUTOFDEBT.ORG on a question of “How do I get my money back from Lloyd Ward Associates,” at page 2 specifically instructs “don’t miss the step about complaining to the State Bar.” After these articles were published there was a precipitous drop in both the debt negotiation business and the regular legal business of Plaintiffs LWA and Ward.
As a direct result of those actions, four (4) prior clients of Plaintiff LWA and Ward filed complaints with the State Bar of Texas following the publication of the article. The State Bar of Texas, upon review of the complaints have dismissed each complaint, but Plaintiffs LWA and Ward were forced to retain legal counsel to respond to such complaints. Defendants’ actions have damaged Plaintiffs’ reputation, good- will, and name and have resulted in a loss of clients to both LWA and Ward, and the loss of potential clients to advertisers/employers of Defendant Steve Rhode/GETOUTOFDEBT.ORG .
In June of 2011, Defendant Steve Rhode/GETOUTOFDEBT.ORG, published an article entitled “Lloyd Ward and Associates – UFAN – New Player in Deceptive Form 1012-R Mailer” claiming that Plaintiffs LWA and Ward were part of the “mass joinder” “scam,” with an organization called “UFAN,” and stated that Plaintiffs LWA and Ward were sending mailers in “an attempt to deceive and fool recipients that it is an official or government mailer.” Such allegations were untrue and without merit.
At no time have Plaintiffs LWA or Ward ever been a member or participated in organization under the acronym of UFAN. In fact, the actual mailer attached to the “scam report” article, does not contain Plaintiffs’ name. At no time did Defendant Steve Rhode/GETOUTOFDEBT.ORG contact Plaintiffs to verify such accusation, nor did they Plaintiffs’ even bother to check with UFAN or its website (which lists the attorneys who are a member of UFAN) to verify that Plaintiffs LWA and Ward were members.
As a result of that article, in July of 2011, Wells Fargo Bank NA filed a grievance with the Texas State Bar against Plaintiff Ward, based entirely upon the allegations contained within the June 2011 publication of Defendant Steve Rhode/GETOUTOFDEBT.ORG. Upon obtaining a letter from UFAN confirming that Plaintiff Ward was not a member and had never been a member of UFAN, Wells Fargo Bank NA withdrew its complaint and the State Bar of Texas dismissed the existing complaint.
Such actions of Defendant Steve Rhode/GETOUTOF DEBT.ORG have damaged the reputation of Plaintiffs LWA and Ward, and further has damaged the good will and name of Plaintiff LWA and Ward, and has resulted in the loss of clients, and in potential clients retaining attorneys other than Plaintiffs LWA and Ward.
As this progresses I’ll keep you posted on the matter.
If anyone wants to help me stand up and fight back against what sure feels like a suit to silence this site, donations towards the legal defense fund are gladly accepted.
Just published More Information About Marketing for Mass Joinder / Mass Tort Cases Under the Name of Lloyd Ward and Lloyd Ward & Associates that is related to this article.
TO THE HONORABLE UNITED STATES DISTRICT COURT:
Pursuant to Federal Rule of Civil Procedure 12(b)(2) and 12(b)(3), Defendants Stephen Jeffrey Rhode and Pamela S. Rhode moves this Court to dismiss all claims asserted against them for lack of personal jurisdiction. Defendants lack sufficient minimum contacts with the State of Texas for this Court to exercise personal jurisdiction over them. Further, the exercise of personal jurisdiction over Defendants would offend traditional notions of fair play and substantial justice. Alternatively, Defendants move the Court to dismiss this case for improper venue or alternatively, to transfer the venue of this case to the Eastern District of North Carolina, Western Division. The Complaint contains no venue facts which would warrant venue for this case in the Eastern District of Texas. Plaintiff Lloyd Ward is an attorney. Plaintiff Lloyd Ward & Associates, PC, is his law firm. Plaintiffs were well aware that this case should not have been brought in this Court. The case should be dismissed or alternatively, transferred to the district where Defendants reside. In the event that this case is not dismissed for jurisdictional or venue reasons, the entire case, or numerous of Plaintiffs’ alleged causes of action, should be dismissed for failure to state a claim. Finally, in the further alternative, Defendants move this Court to require Plaintiffs to provide a more definite statement of Plaintiffs’ claims. The Complaint is vague and ambiguous as to the real nature of Plaintiffs’ claims. Defendants cannot reasonably prepare a response.
Plaintiffs’ Complaint fails to specifically allege any statute or other authority which would warrant this Court exercising personal jurisdiction over Defendants. The Complaint does put forth conclusions that each Defendant “does business in the State of Texas” (Complaint, par. 3 and 4) but fails to support those conclusions with any facts. The Complaint alleges that Defendants do business under certain fictitious names – which they do not — and that the websites of the businesses under those names use a hosting service located in San Antonio, Texas. (Complaint, par. 5) That allegation apparently is the only basis on which Plaintiffs rely to have this Court assert personal jurisdiction over Defendants. The Complaint alleges no action by Defendants, or either of them, that occurred in the State of Texas. These facts and those that follow herein clearly show that Defendants lack sufficient minimum contacts with the State of Texas for this Court to exercise personal jurisdiction over them and that the exercise of personal jurisdiction over Defendants would offend traditional notions of fair play and substantial justice.
Plaintiffs’ claims arise out of statements alleged to have been made on the website known as Getoutofdebt.org. The gist of Plaintiffs’ complaints appears to be that because Defendants allegedly do business under certain fictitious names and because the businesses using those names have a website which is alleged to be hosted by a service in San Antonio, Texas, Defendants have done business in the State of Texas and are liable to Plaintiffs for any damages caused by the statements made on the website. But the “facts” upon which Plaintiffs rely to support their assertions are simply wrong. Attached hereto and/or filed herewith, and incorporated herein by reference as if set forth in full, are the Declaration of Steve Rhode supporting this motion and the Declaration of Pam Rhode supporting this motion. Among the facts evident from those declarations are the following:
Further, the Defendants do not do business under any of the fictitious names which Plaintiffs allege. Plaintiffs assert that Defendants do business as Myvesta.org, Inc., Myvesto.org, Inc., Myvestr.org, Myvesta.org.uk, Getoutofdebt.org Inc., and Getoutofdebt.org. (See, Complaint, style, introductory paragraph, and par. 5) (Among the names under which Plaintiffs assert that Defendants do business are Myvesto.org, Inc. and Myvestr.org. (Emphasis added solely to differentiate these names from other similar names listed in the Complaint) However, nowhere else in the Complaint is either of those alleged companies/names or any action allegedly taken using those names mentioned again. Plaintiffs do not even attempt to show that Defendants do business under those names.) They take a tortured, circuitous route to try to connect Defendants with each such alleged entity/name. But virtually every step along that route is a false step. Plaintiffs are wrong on virtually every fact. Examples of those falsehoods are as follows:
Plaintiffs claim that the charter of a company called Myvesta.org, Inc. was revoked by the states of Maryland and Oregon. (Complaint, par. 11) But as shown by Defendants’ Declarations, that statement is blatantly false. Myvesta.org, Inc. was chartered in the State of Maryland, but its charter was not revoked. The company was voluntarily dissolved in 2006. The authority of the company to do business was revoked in the State of Oregon in 2004 because the company did not file required reports, but the charter was not revoked. (Declarations of Steve Rhode, par. 3, and Pam Rhode, par. 3, and attached Articles of Dissolution) Indeed, Oregon could not revoke the charter as the company was not incorporated in Oregon.
Defendants have never done business under the name Myvesta.org.uk. That was merely a domain name for a company in the United Kingdom known as Myvesta UK Limited. (Declarations of Steve Rhode, par. 3, and Pam Rhode, par. 3)
Defendants know of no entity known as Getoutofdebt.org, Inc. and do not do business under that name. (Declarations of Steve Rhode, par. 3, and Pam Rhode, par. 3)
Getoutofdebt.org is not an entity. It is merely a domain name owned by a Delaware corporation known as Myvesta Foundation. Defendants do not own the domain name and do not do business under the name Getoutofdebt.org. (Declarations of Steve Rhode, par. 3, and Pam Rhode, par. 3)
From all of these facts, it is clear that Defendants do not do business under the fictitious names as alleged by Plaintiffs. As such, Plaintiffs’ entire argument for liability and for jurisdiction falls apart. Plaintiffs’ argument rests upon its assertion that Defendants are personally liable for the actions of Getoutofdebt.org and what Plaintiffs call “the various Myvesta.org entities.” (Complaint, par. 13) And that personal liability apparently results from the alleged revocation of the charter of Myvesta.org, Inc. But that charter was never revoked, Plaintiffs do not do business as Getoutofdebt.org – that website is owned by a Myvesta Foundation, a Delaware corporation, Plaintiffs cannot, therefore, be vicariously or otherwise liable for any actions of Getoutofdebt.org (All of Plaintiffs claims are alleged to arise out of alleged statements made on the website, Getoutofdebt.org, The Complaint makes no mention of any action by any of the other listed entities/names upon which it bases any claims.) and Defendants cannot be shown to have taken any action in or done any business in the State of Texas. Therefore, there is no basis upon which this Court may exercise personal jurisdiction over Defendants, and this case must be dismissed.
Federal Rule of Civil Procedure 12(b)(2) authorizes dismissal of an action for lack of jurisdiction over a person. Fed. R. Civ. P. 12(b)(2). When personal jurisdiction is challenged, the party asserting jurisdiction bears the burden of establishing that jurisdiction is proper. Kelvin Servs, Inc. vs. Lexington State Bank, 46 F3d 13, 14 (5th Cir. 1995). Plaintiffs have failed to meet that burden.
The determination whether a federal district court has personal jurisdiction over a nonresident defendant is a two-step process. 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 the Due Process Clause of the Fourteenth Amendment. See Mink v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th Cir. 1999). Because the Texas long-arm statute (The Complaint neither cites nor even mentions the Texas long-arm statute, §17.042, Tex. Civ. Prac. & Rem. Code. Under that statute, as it pertains to this case, for a foreign person to be haled into a Texas court, that person must have done business in Texas by committing a tort in whole or in part in this state. Plaintiffs have wholly failed to allege facts which would support jurisdiction under this statute.) extends to the limits of due process, the court’s statutory and constitutional inquiries are identical. See, e.g., Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 854 (5th Cir. 2000). The Due Process Clause permits a court to exercise personal jurisdiction over a nonresident defendant if that defendant has purposefully availed himself 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 he ‘should reasonably anticipate being haled into court’ in the forum state.” Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999) (footnotes omitted) Chang v. Virgin Mobil USA, LLC, 2009 U.S. Dist. LEXIS 3051 *2-3 (N.D. Tex. 16 Jan 2009).
Whether a defendant has sufficient minimum contacts is analyzed in terms of general or specific jurisdiction. General jurisdiction exists when a defendant’s contacts with the forum state are continuous and systematic as opposed to occasional and infrequent. Wilson v. Belin, 20 F. 3d 644, 647 (5th Cir. 1994). If general jurisdiction exists, a court can exercise personal jurisdiction over the defendant for all causes of action, even those unrelated to the defendant’s connection with the state. Mink, supra at 336. But the “continuous and systematic contacts test for general jurisdiction “is a difficult one to meet, requiring extensive contacts between a defendant and a forum.” Johnston vs. Multidata Sys. Int’l Corp., 523 F. 3d 602, 609 (5th Cir. 2008).
In contrast to general jurisdiction, specific jurisdiction is proper when the defendant’s contacts with the forum state arise from or are directly related to the plaintiff’s cause of action. Wilson, supra.
Under either analysis, in order to comport with due process, the defendant’s conduct in the forum state must be such that he should anticipate being haled into court in the forum state. Latshaw, supra.
Defendants lack sufficient minimum contacts with the State of Texas. Defendants are residents of the State of North Carolina. Defendants have never been residents of the State of Texas. Defendants do not do business in the State of Texas. Defendants have never been licensed to do business in the State of Texas. Defendants have never applied for a license to do business in the State of Texas. Defendants have no and have never had any employees in the State of Texas. Defendants have not and have never maintained a place of business in the State of Texas. Defendants do not have and have never had a registered agent for service of process in the State of Texas. Defendants do not own and have never owned or leased any real property in the State of Texas. Defendants do not have and have never maintained a bank account in the State of Texas. Defendants have never paid taxes in the State of Texas. Defendants have never solicited business from persons in the State of Texas. Defendants have never contracted with Plaintiffs. Defendants have never solicited business from or arranged for any services to be provided to or by Plaintiffs. Accordingly, Defendants do not have the substantial, continuous and systematic contacts with Texas required for the Court to find that it has general personal jurisdiction over Defendants. And while Plaintiffs have generally and conclusorily alleged that Defendants “[do] business in the State of Texas,” Plaintiffs have not and cannot alleged facts which would establish the truth of those allegations. Therefore, Defendants are not subject to general jurisdiction in the courts of the State of Texas.
Plaintiff’s alleged causes of action arise solely out of statements alleged to have been posted on the Getoutofdebt.org website. That website is owned by Myvesta Foundation, a Delaware corporation. Defendants do not own that website. (Steve Rhode Declaration; Pam Rhode Declaration) And Plaintiff’s only alleged connection between Defendants and the State of Texas is that the website hosting service is asserted to be located in San Antonio, Texas. That allegation, alone, even if true, does not provide sufficient contacts with the State of Texas for Defendants to be subject to jurisdiction in the courts in the State of Texas.
Plaintiffs’ allegations about the web hosting service is a mere conclusion. Plaintiffs have not even alleged that the server hosting the website is located in Texas.4 The Court need not credit Plaintiffs’ conclusory assertion to exercise jurisdiction over Defendants. See, Chang v. Virgin Mobil USA, LLC, supra at 4. And even if Plaintiffs had made showing of contact with a Texas server, they would not be able to rely on the fortuitous location of that server to establish personal jurisdiction over Defendants. (See Ray v. Experian, 2007 U.S. Dist. LEXIS 88425, 2007 WL 4245459, at *3 (N.D. Tex. Nov. 30, 2007) (Buchmeyer, J.) (holding that “accessing or sending data . . . to or from a database which happens to be headquartered in Texas is not purposeful availment by [defendant] of the benefits and protections of Texas’ laws”); Laughlin v. Perot, 1997 U.S. Dist. LEXIS 4987, 1997 WL 135676, at *6-*7 (N.D. Tex. Mar. 12, 1997) (Buchmeyer, C.J.) (finding that foreign corporation’s electronically accessing consumer report in Texas could not give rise to jurisdiction in Texas). Chang v. Virgin Mobil USA, LLC, supra at 4.
Nor can Plaintiffs rely on Calder vs. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984) to help them. This case is similar to Calder in one respect – it is essentially a defamation case. Defamation suits are a powerful anti-First Amendment tool in the internet age, because virtually anybody can cry foul over a “libelous” post and try to sue the speaker in a faraway court solely because the “victim” lives there and “suffered harm” there, requiring vast legal expenses even if the speaker ultimately prevails (as speakers nearly always do in the end). The instant case is no exception. To support personal jurisdiction over an alleged defaming defendant, the Fifth Circuit has emphasized Calder’s requirement that the forum “be the focal point of the story.” Clemens v. McNamee, 615 F. 3d 373, 379 (5th Cir. 2010) (citing Calder). Residence is only one part of this analysis, and “the plaintiff’s residence in the forum, and suffering of harm there, will not alone support jurisdiction under Calder.” Revell v. Lidov, 317 F.3d 467, 473 (5th Cir. 2002). So, while Plaintiffs’ residences may be in Texas, that is not enough to warrant the exercise of jurisdiction over Defendants.
Defendants must have acted toward Texas with sufficient intent to make them “reasonably anticipate being haled into court there.” As stated in Chang, supra at 7 (citing Noonan v. Winston Co., 135 F.3d 85 (1st Cir. 1998), “In Calder, the court found that the defendants’ intentional conduct was ‘calculated to cause injury to respondent in California.’ There is no analogous intentional behavior here.” The same holds true for this case. Defendant Pam Rhode did not write or place any articles regarding Plaintiffs on the website. Defendants had no intent to cause injury to Plaintiffs. Defendants did not target Texas. The articles on Getoutofdebt.org about which Plaintiffs appear to make their complaints either did not mention Plaintiffs or said little or nothing about Plaintiffs. For the most part, they were generated by consumer submissions to the website and were from consumers in California, New York and North Carolina. (Declaration of Steve Rhode) Most of them do not even mention Texas, and if they do, it is only tangentially. They do not discuss any of Plaintiffs’ Texas activities. They are not directed to Texas readers as opposed to readers in other states. Clearly, Texas was not targeted by Defendants or by any statements on the website. The responses constituted advice to the consumers who wrote letters and submitted them to the website. Defendants earn no money from making the responses. They do not engage in debt relief negotiation or other services. The aim of the website is to offer consumers free advice and help so that they can be better educated and informed about what they can do to address their debt situations. (Declarations of Steve Rhode and Pam Rhode) Any possible tortious effects of Defendants’ actions, which Defendants deny, felt in Texas are insufficient to establish personal jurisdiction where there is no evidence that defendant intended to target forum state. “To find otherwise would inappropriately credit random, isolated, or fortuitous contacts and negate the reason for the purposeful availment requirement.” Noonan, supra at 92. Chang, supra at 7. Clearly, Defendants have not purposefully availed themselves of the benefits and protections of the State of Texas so as to have established sufficient minimum contacts with Texas.
Additionally, the Fifth Circuit reads “Calder as requiring the plaintiff seeking to assert specific personal jurisdiction over a defendant in a defamation case to show ‘(1) the subject matter of and (2) the sources relied upon for the article were in the forum state.’” Fielding v. Hubert Burda Media, Inc., 415 F. 3d 419, 426 (5th Cir. 2005)(citing Revell, supra at 474 and n. 48). Plaintiffs fail to aver either. They cannot prevail. This Court does not have specific jurisdiction over Defendants. This case must be dismissed.
Obviously, Defendants maintain that Plaintiffs have failed to make a prima facie case that Defendants have sufficient contacts with Texas to warrant the exercise of jurisdiction over them by this Court. Accordingly, the second element of the jurisdictional analysis does not come into play. However, assuming arguendo that the minimum contacts burden has been met, Plaintiffs still cannot prevail because the exercise of jurisdiction over defendants offends traditional notions of fair play and substantial justice. To be forced to defend this lawsuit would be extraordinarily burdensome, costly and time-consuming for Defendants. They live in North Carolina. They have no contacts with the State of Texas. Their records are in North Carolina. To be force to litigate this case in Texas, to travel to Texas for depositions, hearings, meetings with counsel and trial would be immensely costly to them. Plaintiffs can secure any relief to which they might be entitled in a proper forum. They are attorneys who advertise all over the country and who apparently have clients across the country. Indeed, the complaints they appear to make in this suit seem to arise out of their representation of clients who do not live in Texas. The most efficient resolution of the issues in this case would be in North Carolina, not in Texas. Texas has no interest in parties who have no substantive contacts with the state. Haling Defendants into court in Texas offends traditional notions of fair play and substantial justice.
In the event that the Court determines that it does have personal jurisdiction over Defendants, then the Court must decide if venue is proper in this district. It clearly is not. The general federal venue statute, 28 U.S.C. § 1391, reads in pertinent part:
except as otherwise provided by law, be brought only in
(1) a judicial district where any defendant resides, if all defendants reside in the same State,
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or
(3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
Plaintiffs’ claims are founded only on diversity of citizenship. Therefore, 28 U.S.C. § 1391 applies to this suit. But the allegations in the Complaint do not warrant the bringing of this case in the Eastern District of Texas. Defendants do not reside in the Eastern District of Texas. They reside in North Carolina, specifically within the Eastern District of North Carolina, Western Division. No part of the events or omissions giving rise to Plaintiffs’ claims arose in the Eastern District of Texas. The Complaint fails to state even one event that occurred in the Eastern District of Texas. This suit does not involve property. Therefore, venue is not appropriate in the Eastern District of Texas. 28 U.S.C. § 1406(a) provides, “The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” Pursuant to that statute, this case should be dismissed. Justice does not demand that this case be transferred to another district. No injustice would be done by dismissal rather than transfer. No special circumstances exist that would mandate transfer over dismissal. Plaintiffs’ baseless allegations concerning the website challenge free speech protected by the First Amendment to the United States Constitution and by the provisions of 47 U.S.C. §230 (This statute protects Defendants 5 from liability for posting statements of others, including, without limitation, consumers, on the website.). Transferring this case to another district would be a waste of judicial resources. If, however, the Court deems it to be in the interest of justice to transfer the case to another district, that district should be the Eastern District of North Carolina. That, and nowhere else is where Defendants reside and where a substantial part of the events or omissions giving rise to the claim occurred. Plaintiffs would most likely argue that the case should transferred to the Western District of Texas or to the Northern District of Texas. But a substantial part of the events or omissions giving rise to the claim did not occur in either of those districts. The only reference in the Complaint to the Western District is Plaintiffs’ bare conclusion that Defendants use a web hosting service located in San Antonio, Bexar County, Texas. But that averment is false. (Steve Rhode Declaration, par. 5) And Plaintiffs’ mere conclusion does not support the argument that a substantial part of the events or omissions giving rise to the claim occurred in Bexar County (which is located within the Western District of Texas). And the only reference in the Complaint to Dallas County, Texas (which is in the Northern District of Texas) is that Plaintiff Lloyd Ward & Associates, PC has its “principle (sic) place of business in Dallas County.” That fact alone is certainly not enough to warrant the bringing of this case in the Northern District of Texas. If this case is transferred, it should be to the Eastern District of North Carolina.
In the event that this Court maintains jurisdiction of this case and determines that venue is proper, this case should still be dismissed. The Complaint fails to state a claim upon which relief may be granted. All of Plaintiffs’ alleged causes of action arise out of the same alleged facts and circumstances – statements allegedly made on the website Getoutofdebt.org. However, all such statements are free speech protected by the First Amendment to the United States Constitution and by the provisions of 47 U.S.C. §230. As a matter of law, Defendants cannot be held liable for the statements. Therefore, Plaintiffs cannot prevail on their asserted causes of action, and this case should be dismissed.
Plaintiffs have alleged two separate counts of slander. (Complaint, par. 71-77 and par. 78-84). Plaintiffs cannot recover on either count. Slander is a cause of action based upon oral statements. Plaintiffs are keenly aware of this fact. They acknowledge it in paragraphs 73 and 80 of the Complaint. But the Complaint alleges no oral statements made by Defendants, only written ones. Therefore, as a matter of law, Plaintiffs cannot recover on any claim for slander. They have failed to state a claim for which relief may be granted. Plaintiffs slander claims should be dismissed.
Plaintiffs also assert what they call claims for negligence and gross negligence. But those are not separate causes of action. If they exist and are proper at all, they are merely parts of Plaintiffs’ claimed causes of action for libel and/or disparagement (and slander, if those claims are not dismissed). Even at that, they are weak attempts to get around the “malice” requirement of those causes of action. Plaintiffs’ other claimed causes of action – tortious interference with contract and tortious interference with prospective contract – require intentional acts. Butnaru v. Ford Motor Co., 84 S.W. 3d 18, 207 (Tex. 2002); Southwestern Bell Tel. Co. v. John Carlo Tex., Inc., 843 S.W. 2d 470, 472 (Tex. 1992); Bradford v. Vento, 48 S.W. 3d 749, 757 (Tex. 2001); Plotkin v. Joekel, 304 S.W. 3d 455, 487 (Tex. App. – Houston [1st Dist.] 2009, pet. denied). There can be no recovery based under those causes of action based upon negligence. Plaintiffs have failed to state a claim for which relief may be granted. Plaintiffs’ alleged causes of action for negligence and gross negligence should be dismissed.
As reflected numerous times in the Complaint, Plaintiffs allege two fact situations upon which they base their claims for relief. Those fact situations are contained in paragraphs 17-23 of the Complaint and in paragraphs 24-27 of the Complaint. Nowhere in paragraphs 17-23 does the Complaint reference any specific statement ever made by Defendants. Plaintiffs assert that these paragraphs support their claims for libel, disparagement, tortious interference with prospective contract, tortious interference with contract, slander and negligence. The Complaint merely generally avers things but does not specify any statement made on any particular date or in any particular article. It does not mention even one complete sentence that Defendants may have published and upon which Plaintiffs base their claims. In this regard, paragraphs 17-23 of the Complaint are too vague and ambiguous for Defendants to reasonably prepare a response. Defendants are not apprised of the alleged actionable statements they are alleged to have made. They are not alerted as to which statements they are alleged to have made may be false. Such knowledge is crucial for Defendants to respond to Plaintiffs’ claims.
Plaintiffs aver that paragraphs 24-27 of the Complaint support their claims for libel, disparagement, tortious interference with prospective contract, slander and negligence. Again, the Complaint merely generally avers things but does not specify any statement made on any particular date or in any particular article. It does not mention even one complete sentence that Defendants may have published and upon which Plaintiffs base their claims. In this regard, paragraphs24-27 of the Complaint are too vague and ambiguous for Defendants to reasonably prepare a response. Defendants are not apprised of the alleged actionable statements they are alleged to have made. They are not alerted as to which statements they are alleged to have made may be false. Such knowledge is crucial for Defendants to respond to Plaintiffs’ claims.
Plaintiffs’ claims against Defendants should be dismissed because this Court lacks personal jurisdiction over Defendants. Defendants are not subject to either general jurisdiction or specific jurisdiction in this Court. Defendants do not have the requisite minimum contacts with Texas for this Court to exercise personal jurisdiction over them, and even if they did, the exercise of personal jurisdiction over them would offend traditional notions of fair play and substantial justice. The Court should also dismiss this case because venue is not proper in the Eastern District of Texas. No circumstances justify the transfer of this case for improper venue in lieu of dismissal. But if the Court does find such circumstances exist, the case should be transferred to the Eastern District of North Carolina where both Defendants reside. In the event the Court does not dismiss this case for jurisdictional or venue reasons, the Court should still dismiss Plaintiffs’ suit, or at least several of Plaintiffs’ alleged causes of action, because the Complaint fails to state claims for which relief my be granted. And in the event that the case is not dismissed, Plaintiffs should be ordered to replead with a more definite statement of the claims that remain in this suit.
For these reasons, Defendants pray that the Court dismiss all of Plaintiffs’ claims because this Court lacks personal jurisdiction over Defendants, that the Court dismiss this case because venue is improper in this Court, or alternatively, transfer this case to the Eastern District of North Carolina, that the Court dismiss Plaintiffs’ alleged causes of action for failure to state claims for which relief may be granted as set forth above, that the Court order Plaintiffs to replead with a more definite statement of any claims that remain in this suit, and for all other relief to which they may be justly entitled.
On May 3, 2013 the Court of Appeals for the Fifth Circuit issued their opinion on Ward’s appeal following the dismissal of the case by the Federal District Court in Texas. “We AFFIRM the district court’s dismissal.” – Source