P's Response to Motion to Dismiss

THE HAYES LAW FIRM, PC

www.dhayeslaw.com

Plaintiffs Opposition to Motion to Dismiss

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

CASE NO. 15-6058I-CIV.DIMITROULEAS/SNOW

BARBARA BRUNNER, individually and

for all others similarly situated,

Plaintiff,

vs.

TEXAS A&M UNIVERSITY 12th MAN

FOUNDATION a/k/a THE 12TH MAN

FOUNDATION,

Defendant.

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PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DISMISS FOR LACK OF PERSONAL

JURISIDCTION, IMPROPER VENUE

AND LACK OF SUBJECT MATTER

JURISDICTION

PODHURST ORSECK, P.A

s/ JOHN GRAVANTE, III

Peter Prieto

John Gravante III.

25 West Flagler Street, Suite 800

Miami, Florida 33130

(305) 358-2800

[email protected]

[email protected]


DEBRA BREWER HAYES

CHARLES CLINTON HUNTER

700 Rockmead, Suite 210

Houston, TX 77339-2111

Telephone: (281)-815-4963

Facsimile: (832) 575-4759

[email protected]

[email protected]

ATTORNEYS FOR PLAINTIFF

Case 0:15-cv-60581-WPD Document 32 Entered on FLSD Docket 05/11/2015 Page 1 of 25

Page i

Table of Contents

I. THE COURT HAS PERSONAL JURISDICTION OVER THE FOUNDATION ....................... 5

a. Standard............................................................................................................................................... 5

b. Procedure ............................................................................................................................................. 5

c. The General Jurisdiction Statute of Florida ..................................................................................... 6

d. Ms. Brunners Allegations Relative to Personal Jurisdiction ......................................................... 7

e. The Evidence Establishes the Courts Jurisdiction over the Foundation. ..................................... 8

i. The Foundation Fails to Refute Ms. Brunners Allegations that it Conducts Business in Florida.

8

ii. The Foundation Admits that it Solicited and Sold Merchandise in Florida at the Time Ms. Brunner Claims She was Injured by its Misrepresentations, which Constitutes the Commission of a

Tort in Florida .................................................................................................................................... 12

iii. The Foundation Breached its Endowment Agreement with Ms. Brunner in Florida.................. 14

f. Due Process is Not Offended Because Ms. Brunner Alleges Sufficient Minimum Contacts with Florida by the Foundation for Both General and Specific Jurisdiction. ............................................. 15

g. The Courts Exercise of Personal Jurisdiction over the Foundation Will Foster Traditional Notions of Fair Play and Substantial Justice. ......................................................................................... 17

II. VENUE IN FLORIDA IS PROPER ............................................................................................ 18

III. THE COURT HAS SUBJECT MATTER JURISDICTION .................................................... 19


Page ii

Table of Authorities

Cases

Acquadro v. Bergeron, 851 So. 2d 665, 672 (Fla. 2003) (quoting Rever v. Lapidus, 151 So.2d 61, 62 (Fla.

3d DCA 1963) ........................................................................................................................................... 6

Alexander Proudfoot Co. World Headquarters v. Thayer, 877 F.2d 912, 919 (11th Cir. 1989) .................. 5

Baker Electronics, Inc. v. Pentar Sys., Inc., 219 F. Supp. 2d 1260, 1263 (M.D. Fla. 2002) ............ 8, 11, 14

Bellairs v. Mohrmann, 716 So. 2d 320, 323 (Fla. 2d DCA 1998) ................................................................ 6

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471472 (1985) .............................................................. 15

Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 855 (11th Cir.1990) 5, 13

Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014) ............................................................................ 15, 16

Dinsmore v. Martin Blumenthal Associates, Inc., 314 So.2d 561, 564 (Fla.1975) ....................................... 9

Elandia Intern., Inc. v. Ah Koy, 690 F. Supp. 2d 1317, 1329 (S.D. Fla. 2010) .......................................... 13

High Country Insurance Agency v. Admin. Management Services Syndicate, Ltd, 549 So.2d 776, 776 (Fla.

3d DCA 1989) ......................................................................................................................................... 14

Hollingsworth v. Iwerks Entm't, Inc., 947 F.Supp. 473, 477 (M.D.Fla.1996) ............................................ 13

International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) ................................................................ 5

Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371 (11th Cir. 2003) .......................................................... 19

L.O.T.I. Group Prod. v. Lund, 907 F.Supp. 1528, 1532 (S.D.Fla.1995) .................................................... 13

Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th Cir. 2008) ................................................................ 13

Meier ex rel. Meier v. Sun Intern. Hotels, Ltd., 288 F.3d 1264, 1276 (11th Cir. 2002) ............................. 18

Milliken v. Meyer, 311 U.S. 457, 463 (1940) ................................................................................................ 5

Moore v. Lindsey, 662 F.2d 354, 35758 (5th Cir. Unit B 1981) ................................................................. 5

Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir.1988) ............................................................................... 6

Oriental Imports & Exports, Inc. v. Maduro & Curiel's Bank, N.V., 701 F.2d 889, 89091 (11th Cir.1983)

.................................................................................................................................................................. 5

Pellerito Foods, Inc. v. American Conveyors Corp., 542 So.2d 426 (Fla. 3d DCA 1989) ......................... 14


Page iii

Posner v. Essex Ins. Co., 178 F.3d 1209, 1215 (11th Cir.1999) ................................................................. 13

Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th Cir.1996).................................................... 8

Suffolk Federal Credit Union v. Continental Insurance Co., 664 So.2d 1153, 1154 (Fla. 3d DCA 1995) .. 9

Venetian Salami Co. v. Parthenais, 554 So.2d 499, 500 (Fla.1989) ............................................................. 5

Vermeulen v. Renault, U.S.A., Inc., 985 F.2d 1534, 1546 (11th Cir.1993) ................................................. 17

Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla.2002) ................................................................................ 13

Williams Electric Co. v. Honeywell, Inc., 854 F.2d 389, 394 (11th Cir.1988) ........................................... 13

Statutes

48.193, Fla. Stat. Ann. ............................................................................................................................... 7

28 U.S.C. 1391(b)(2). .............................................................................................................................. 18

28 USCA 1332 (d) ................................................................................................................................... 19

Other Authorities

44 The Advoc. (Texas) 70, 77 (2008) ......................................................................................................... 18


SUMMARY OF ARGUMENT

Plaintiff Barbara Brunner1 responds herein to the motion to dismiss filed by Defendant

University of Texas 12th Man Foundation (Foundation) [DE #30]. Ms. Brunner opposes the

Foundations motion because it is meritless.

First, the Court has personal jurisdiction over the Foundation. Jurisdiction is authorized

by four separate provisions of Floridas long-arm statute: the Foundation does business in Florida;

it solicited and sold goods and services in Florida at the time it injured Ms. Brunner; it committed

the tort of misrepresentation in Florida, where Ms. Brunner received false information from it; and

it breached its contract with Ms. Brunner impacting her in Florida.

Due process is not violated by the Courts exercise of personal jurisdiction over the

Foundation because the facts alleged in Ms. Brunners First Amended Complaint (Second

Corrected) [DE #31] (First Amended Complaint),2 in the affidavit of the Foundations President

filed in support of its motion to dismiss, and in the declaration filed by Ms. Brunner (Brunner

MTD Decl.) (filed herewith as Exhibit B) state sufficient contacts by the Foundation with Florida

for general jurisdiction both individually and as the agent of Texas A&M University (University)

acting through the Southeastern Conference (SEC).

Additionally, the facts alleged by Ms. Brunner state sufficient contacts to support specific

jurisdiction both because the Foundations breach of contract impacts her in Florida at SEC

football games held here, and also because the Foundations misrepresentations about her

Endowment rights were received by Ms. Brunner in Florida.

Traditional notions of fair play and substantial justice will be fostered by the Courts

exercise of personal jurisdiction because the relative burdens of this lawsuit favor Florida and

because the procedural rights of the proposed Class are more likely to be recognized and honored

1 Barbara Bruner is the name under which Plaintiff became an Endowed Donor and by which the Foundation

knows her and corresponds with her, to this day. Cf. Foundations Motion to Dismiss at 4, n.1. Nonetheless, Ms. Brunner discloses her married name as Barbara Brunner Pereira in an email filed with her complaint. See FAC Ex.

1-H [DE #31]. 2 In its Answer filed in the Texas action, the Foundation admits the authenticity of the documents filed as

exhibits to the Texas Complaint. The same exhibits were attached to Ms. Brunners complaint in this action. Ms. Brunner asks the Court to take judicial notice of the Foundations Texas Answer, a copy of which is filed herewith as Exhibit A.


in Florida, than in the hostile state courts of Texas.

Second, venue in Florida is proper for the same reasons. The Southern District of Florida

is a district in which arose or will arise a substantial part of the harms alleged by Ms. Brunner.

Finally, the Court has subject matter jurisdiction because no exception applies under

CAFA, as this action is originally filed in Florida.

BACKGROUND FACTS

This dispute is the result of a series of related decisions by Texas A&M University and its

affiliated fundraising organizations including the Defendant Foundation to take the Universitys

Aggie football program and its other Athletic Department sports and events to prominence on a

national scale. In marketing terms, Aggie sports have been re-positioned away from the local,

Texas market in ways that have been wildly successful both by luck and by design.

Unfortunately, the Foundation decided that this success had to be at the expense of the

loyal alumni who had become Endowed Donors in its athletic scholarship program over the past

decades through substantial financial sacrifices. Those Endowed Donors include Plaintiff Barbara

Brunner, a Florida resident, who in 1983 became the first student Endowed Donor.

Ms. Brunner brought this lawsuit in southern Florida, where she now lives, where she

expects to enjoy the benefits of her endowment during her lifetime at football games in Florida

between the Aggies and the Gators, Brunner MTD Decl. 5, and where the University and its

affiliates, including the Foundation, have done substantial and continuing business individually

and through the Universitys membership in the SEC.

Although the Universitys athletics program originates in Texas, its reach and impact are

much, much bigger than Texas. As part of its drive for national recognition and a national

audience, the University and the Foundation, which funds the Universitys Athletic Department,3

3 Agreements between the Foundation and the University defining in part the relationship between them and

among other affiliated Aggie organizations are attached as exhibits to the Declaration of Debra Brewer Hayes,

which is filed herewith as Exhibit C. These agreements include the following:

1. 1978 Memorandum of Agreement re expansion of Kyle Field and the Universitys provision of about 8000 seats to the Aggie Club (now known as the Foundation) for it sell seat options to raise funds to pay principal and interest charges on the stadium expansion. (Exhibit C-1)

2. 1990 Rules Governing Relationship Between Texas A&M University and the Texas A&M University 12th Man Foundation. Foundation administers and invests funds it receives for the benefit of the University.


repositioned the Aggie football team from the Big 12 Conference, where it had historically played

several Texas teams. In 2011, the Aggies left the Big 12 to join the more profitable SEC

conference.

Today, the Aggies play not a single Texas football team, but instead play nationally-ranked

Alabama, along with other nationally-prominent teams from Florida, Georgia, Arkansas,

Louisiana, Mississippi, Missouri, Kentucky and Tennessee. See SEC teams list (Hayes Decl. at

Exhibit C-9).

In terms of television viewership, the Aggies are second only to Alabama. Thus, the Aggies

have become big business in the biggest college football market, see TV rankings (Hayes Decl. at

Exhibit C-10) (Aggies average 5,263,900 viewers in 2013 with 10 rated games), and they compete

on a national level not only on the playing field, but also in the national advertising and

Universitys Athletic Director presents Foundation with annual development goals and priorities, which shall be afforded great weight. (Exhibit C-2)

3. 1998 Kyle Field Ticket Program Expansion Agreement. University gives Foundation exclusive right to market about 20,000 seats. Payments by donors other than pre-1994 Endowed Donors made directly to

University. Foundation to donate no less than $3,000,000 annually to Universitys Athletic Department. Expires in year 2020. (Exhibit C-3)

4. 1998 Capital Campaign Policy and Agreement. Universitys Athletic Department to work in conjunction with Foundation to raise additional funds, of which the Foundation is allocated 3% annually. Athletic Director shall be an integral participant in the planning and execution of the Campaign. Foundation serves as receiving agent for funds of Athletic Department to be held in Foundation account and managed by Foundation. Texas A&M Foundation (not 12th Man) shall market any real property contributed to Campaign.

Naming rights sold through Campaign subject to approval by University President. (Exhibit C-4)

5. 2002 Athletics Complex Funding Agreement. Re: $50,000,000 Capital Campaign. Foundation pledges future gifts as security for bonds issued by University. Requires creation of debt reserve fund and payment of

annual debt service on up to $25,000,000 in bonds by Foundation. (Exhibit C-5)

6. 2004 Affiliation Agreement Between Texas A&M University and the Texas A&M University 12th Man Foundation. References a June 1, 2003, Athletic Ticket Operations Agreement. Covers Foundations reimbursements to Universitys employees (e.g., Athletic Director) for travel expenses. Universitys President sits as ex-officio Foundation Board Member, with expenses reimbursed by Foundation, to provide

development advice. (Exhibit C-6)

7. 2005 Amendment No. 1, Athletics Complex Funding Agreement. Undertaking by Foundation to fund Athletic Department operations, bond service, and Athletics Department exigencies declared by Universitys President. (Exhibit C-7)

8. 2010 Memorandum of Understanding. Re: Football Game Day Services. Provides for payment to University for parking expenses and for markup by Foundation to be passed on to Foundation members.

(Exhibit C-8) These agreements were obtained from the Foundation in other state court litigation. While these and other

documents were declassified as allegedly confidential, other contracts (e.g., the 2003 agreement referenced in the 2004 Affiliation Agreement) remain unavailable at this time to Ms. Brunner, because they are still deemed

confidential. Additionally, discovery in the other cases focused on stadium tickets and parking and thus, the

merchandising contracts were not pursued or produced. Thus, Ms. Brunner believes that discovery in the case at bar

will reveal additional agreements for nationwide marketing of the Aggie brands and marks by the Foundation.


merchandising markets. The Aggies may operate out of Bryan-College Station, Texas, but they

are far from a local attraction, when it comes to college football and other collegiate sporting

events.4

As part of its repositioning effort, the University and its affiliated alumni organizations

including the Foundation decided to re-develop the Aggie football stadium known as Kyle

Field.5 The Foundation entered into agreements with the University and its affiliated alumni

organizations to raise funds to support the sports-complex-building efforts of the University. See,

e.g., Hayes Decl. Exhibits C-5 & C-7. These contracting parties deemed it advisable to rebuild

the Westside portion of Kyle Field and at the same time to re-configure and re-seat it via a

Priority Points program. The Foundation decided to maximize revenues by re-selling the

established seating locations of its Endowed Donors to the highest bidder. Thus, the Foundation

knowingly breached the oral and written agreements that it had made with Endowed Donors years

ago in favor of its own financial benefit.

As alleged in Ms. Brunners First Amended Complaint, [DE #31] the re-seating plan

unilaterally reduced the game experience benefits sold to Endowed Donors by the Foundation

under license from the University. The re-seating plan provides little of the game-day experience

promised the Endowed Donors, who via this lawsuit and others, have sought legal redress

including the return of their contractual seating location rights, parking rights, road game rights,

and other football game-day experience benefits that they purchased from the Foundation acting

as the agent of the University under various agreements including those attached to the Hayes

Declaration filed herewith.

In its motion to dismiss, the Foundation paints an interesting but grossly inaccurate6 picture

4 Additionally, as the Foundation admits at, Mtn. 15, this action also has a nationwide scope insofar as it

addresses the rights of fourteen Endowed Donors who are citizens of potentially 14 different states. 5 Contrary to the claims made in the Foundations motion, this re-development has not resulted in the total

demolition of the stadium. Cf. Mtn. at 1. 6 For example, the Foundation implies that the Texas class action was dismissed for lack of jurisdiction. See,

e.g., Mtn. at 1, 4. To the contrary, the Texas action was dismissed when Judge Gilstrap granted the Texas plaintiffs motion to dismiss without prejudice or conditions under Rule 41(a)(2). See Texas action DE #10& DE #15.

The Foundation also claims that only a handful of Endowed Donors have objected to the reseating process, Mtn. at 3, but fails to acknowledge that it has misrepresented their rights to them The Foundation alleges that the

Endowed Donors who signed onto the new re-seating program have no complaints. The Endowed Donors had no


of the facts and proceedings pertinent to this dispute. Because it is light on the law, facile with the

facts, and empty of evidence, Ms. Brunner asks the Court to deny the motion in its entirety.

I. THE COURT HAS PERSONAL JURISDICTION OVER THE FOUNDATION

a. Standard

The determination of personal jurisdiction over a non-resident defendant requires a two-

part analysis. Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 855

(11th Cir.1990); Alexander Proudfoot Co. World Headquarters v. Thayer, 877 F.2d 912, 919 (11th

Cir. 1989). First, the court considers the jurisdictional question under the states long-arm statute.

If there is a basis for the assertion of personal jurisdiction under the state statute, the court next

determines whether sufficient minimum contacts exist to satisfy the Due Process Clause of the

Fourteenth Amendment so that maintenance of the suit does not offend traditional notions of fair

play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)

(quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Only if both prongs of the analysis are

satisfied may a federal or state court exercise personal jurisdiction over a nonresident defendant.

The reach of the Florida long-arm statute is a question of Florida law. Therefore, federal

courts are required to construe it as would the Florida Supreme Court. Oriental Imports & Exports,

Inc. v. Maduro & Curiel's Bank, N.V., 701 F.2d 889, 89091 (11th Cir.1983); Moore v. Lindsey,

662 F.2d 354, 35758 (5th Cir. Unit B 1981).

The Florida Supreme Court has emphasized that the jurisdictional analysis under the

Florida long-arm statute and the jurisdictional analysis under the federal constitution are distinct.

Venetian Salami Co. v. Parthenais, 554 So.2d 499, 500 (Fla.1989).

b. Procedure

In Venetian Salami, the Florida Supreme Court outlined the basic procedure for long-arm

jurisdiction cases. The court held that a plaintiff must first allege a jurisdictional basis in her

pleading. Then, if the defendant wishes to contest these allegations, it must file an affidavit

viable alternative EXCEPT to sign onto the new program As discovery will show, most Endowed Donors have

complaints about the re-seating process. No fully-informed Endowed Donor would acquiesce in the unilateral

action of the Foundation to take back without reasonable and adequate compensation what it sold the Endowed

Donors for high value years ago.


specifically addressing the allegations. Once a defendant submits an appropriate affidavit, the

plaintiff must support her allegations with an affidavit of her own. If no disputed factual issues

appear on the face of the opposing affidavits, the trial court can decide the long-arm issue without

holding an evidentiary hearing. However, if the opposing affidavits conflict with one another, the

trial court must hold a limited evidentiary hearing in order to determine the jurisdiction issue.

Venetian Salami at 502. This procedure is universal in application. Bellairs v. Mohrmann, 716 So.

2d 320, 323 (Fla. 2d DCA 1998).

When a district court does not conduct a discretionary evidentiary hearing on a motion to

dismiss for lack of jurisdiction, the plaintiff must establish a prima facie case of personal

jurisdiction over a non-resident defendant. Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir.1988).

A prima facie case is established if the plaintiff presents enough evidence to withstand a motion

for directed verdict. Id.

The district court must accept the facts alleged in the complaint as true, to the extent they

are uncontroverted by the defendants affidavits. Id. Where the plaintiffs complaint and the

defendants affidavits conflict, the district court must construe all reasonable inferences in favor

of the plaintiff. Id. Importantly, the affidavits submitted must contain something more than the

assertion of legal conclusions. Acquadro v. Bergeron, 851 So. 2d 665, 672 (Fla. 2003) (quoting

Rever v. Lapidus, 151 So.2d 61, 62 (Fla. 3d DCA 1963)).

In Bergeron, the Florida Supreme Court found the allegation that I did not make

defamatory statements about Bergeron insufficient to shift the burden to Bergeron to demonstrate

that jurisdiction was proper. Rather than claim that she did not make the statement that Bergeron

has AIDS, all Rose Acquadros affidavit provided was a legal conclusion that the content of her

statement was not defamatory. That was insufficient to challenge jurisdiction. Bergeron, 851 So.2d

2d at 672.

c. The General Jurisdiction Statute of Florida

The Foundation submitted itself to the jurisdiction of Florida courts, if it did any of the

following either personally or through an agent:


1. Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.

2. Committing a tortious act within this state.

6. Causing injury to persons or property within this state arising out of an act

or omission by the defendant outside this state, if, at or about the time of the

injury, either:

a. The defendant was engaged in solicitation or service activities within this state; or

b. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the

ordinary course of commerce, trade, or use.

7. Breaching a contract in this state by failing to perform acts required by the

contract to be performed in this state.

48.193, Fla. Stat. Ann.

The Foundation attempts to controvert the allegations of Ms. Brunners First Amended

Complaint that jurisdiction is proper under paragraphs 1 and 7, Mtn. at 6-10, but it does so with

conclusory allegations inadequate under Florida law. Importantly, the Foundation never addresses

jurisdiction under paragraphs 2 or 6 of Section 48.193.

d. Ms. Brunners Allegations Relative to Personal Jurisdiction

Plaintiffs First Amended Complaint alleges that Ms. Brunner is a football fan and

supporter of [the University], who has enjoyed attending home and away Aggie football games

since she was a student [there]. FAC 12. Ms. Brunner alleges that the Foundation failed to

provide Plaintiff, in Florida, with the Endowed Donor tickets to Aggie football games for the 2015

season, and it directed communications about its breach of contract to her while she resided in

Florida. FAC 46. See 48.193 (7). In the declaration filed with this response, Ms. Brunner

alleges that she looks forward to attending football games in Florida between the Aggies and the

Gators during her lifetime. Brunner MTD Decl. 5. See 48.193 (7).

Ms. Brunner also alleges that the Foundation is subject to the jurisdiction of Florida courts

generally because it operates, conducts, engages in and carries on a business or business venture


in Florida through its participation in the SEC. Either as principal, or as the agent of the University,

the Foundation acts in concert with other members of the SEC to advertise and promote in Florida

SEC athletic contests held throughout the southeast United States; to sell tickets in Florida to SEC

events held in Florida and elsewhere; and to assist in the conduct of athletic contests involving

Aggie athletes being played in Florida. FAC 47. See 48.193 (1).

Additionally, the Foundation uses the money raised by its fundraising activities to support

Texas A&M University athletics by, inter alia, funding recruiting trips to meet athletes

and to promote University athletic programs to persons in Florida and other locales across the

nation. See Hayes Decl. Exhibit C-11 (describing recruiting commitment from Florida resident

Daniel LaCamera and offers made to Florida high school football player Kenrell McFadden and

Florida high school basketball player Tony Bradley). The Foundation funds scholarships for

athletes, including Florida athletes, to attend the University and to participate in sporting events

nationwide including those involving teams from other members of the Southeastern Conference,

including the University of Florida. FAC 53; See 48.193 (1).

Ms. Brunner alleges that at the time of her injury at the hands of the Foundation, it was

engaged in solicitation and sales of goods and services within the state of Florida exploiting, among

other things, the name, logo, and other intellectual property of the University on sportswear and

other merchandise. FAC 48, 52. See 48.193 (6)(a) & 6(b). Indeed, prior to filing this action,

Ms. Brunner learned through counsel that Aggiewear was on sale at stores in Florida. Hayes Decl.

3 and Exhibit C-11.

e. The Evidence Establishes the Courts Jurisdiction over the Foundation.

i. The Foundation Fails to Refute Ms. Brunners Allegations that it Conducts Business in Florida.

To establish that a defendant is carrying on a business for the purposes of the Florida long-

arm statute, the activities of the defendant must be considered collectively and show a general

course of business activity in the state for pecuniary benefit. Baker Electronics, Inc. v. Pentar Sys.,

Inc., 219 F. Supp. 2d 1260, 1263 (M.D. Fla. 2002); Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d

623, 627 (11th Cir.1996) (citing Dinsmore v. Martin Blumenthal Associates, Inc., 314 So.2d 561,


564 (Fla.1975)); see generally Suffolk Federal Credit Union v. Continental Insurance Co., 664

So.2d 1153, 1154 (Fla. 3d DCA 1995) (stating that the making of a [single] installment loan to a

Florida borrower, secured by a boat located in Florida, with lien recorded in Florida constitutes a

business venture for purposes of the long arm statute.).

As noted above, the jurisdictional allegations of Ms. Brunners must be accepted as true

unless controverted by the Foundation with facts, not just legal conclusions. However, the

declaration of the Foundations President, Skip Wagner, used to controvert Ms. Brunners

jurisdictional allegations states little more than that the Foundation is based in Texas and that home

games are played at Kyle Field in Texas. This is not sufficient to refute the allegations of Ms.

Brunner that the Foundation conducts business in Florida individually and through its affiliation

with the University in the SEC.

Mr. Wagners allegation that the Foundation does not operate, conduct, engage in, or carry

on a business venture in Florida through Texas A&Ms participation in the Southeastern

Conference, Wagner Decl. 5, is no more than a legal conclusion.

Mr. Wagners statements that the Foundation is not a member of the SEC; that the SEC

is not a principle or agent of the Foundation; and that the Foundation does not act in concert

with other members of the SEC, id., are similarly insufficient legal conclusions.

Beyond these legal conclusions, Mr. Wagners declaration is rife with half-truths and

carefully worded statements. For example, Mr. Wagner states accurately that [t]ickets to

athletic events in Florida are provided to the Foundation by Texas A&M Universitys Athletic

Department. Wagner Decl. 6. He fails to inform the Court, however, that these tickets are

provided pursuant an agreement requiring the Foundation to provide the Athletic Department in

exchange for the tickets with no less than $3 million annually through year 2020 to fund athletic

events of the University and to pay the principle and interest semi-annually on $25 million of bond

debt of the University related to the remodeled Aggie football stadium. See Hayes Decl. Exhibits

C-3 & C-5.

Pursuant to these agreements, the Foundation acts as the Universitys agent to raise and


manage funds for athletic facilities and programs at the University by soliciting contributions and

selling those tickets, along with naming rights and other merchantable materials, to loyal alumni

and the public. See Hayes Decl. Exhibit C-4.

The Foundation does not act independently of the University or its Athletic Department,

but is guided by them, giving great weight to their input, and responding to their needs and

demands. See Hayes Decl. Exhibits C-2, C-6 & C-7. Indeed, because the sole purpose of the

Foundation is to raise money for the Universitys Athletic Department under the direction of

University officials, who define the goals and parameters of the Foundations efforts and provide

the intellectual property, tickets and naming rights used in the Foundations campaigns, the

Foundation is little more than the Universitys single-purpose alter ego.

Mr. Wagner addresses none of these facts or relationships. Instead, he makes unsupported

claims about what the Foundation is not, but utterly fails to define with sufficient specificity the

Foundations significant role in bringing about Aggie athletic events both at home and at away

games in the SEC.

Notably, Mr. Wagner does not inform the Court either how SEC television, ticket sale and

merchandizing revenues are shared with the University and the Foundation. Instead, he states

merely that the Foundation generally provides funding to the Texas A&M University Athletic

Department but does not determine how such funding is allocated. Wagner Decl. 8.

Mr. Wagner does not state whether the Foundation traveled to Florida to participate in

recruiting efforts or in discussions with the SEC or the Florida Gators about the inaugural game of

the Aggies in the SEC against the Gators. Instead, he carefully states that the Foundation is not

involved with the preparation or management of recruiting trips in Florida. Wagner Decl. 8.

Nor does he specifically deny Ms. Brunners allegation that the Foundation funds recruiting trips.

Mr. Wagner cannot truthfully deny that the Foundation is intricately involved in the SEC

and its activities in Florida and elsewhere in the SEC conference as the affiliate, agent, de

facto partner and alter ego of the University. Indeed, a click on the University Presidents letters

cite to Aggieathletics.com is re-routed to the Foundations webpage. See Hayes Decl. Exhibit


C-12.

A telling portrait of the Foundations involvement with the SEC is painted by the photos

available on the Flckr social media application at https://www.flickr.com/photos/texasam

foundation/sets/72157631526753181 showing the Foundation jointly hosting the Florida Gators

and SEC dignitaries at the pre-game reception before the Aggies inaugural SEC game. See

selected photos (Hayes Decl. Exhibit C-13), where the University of Florida President Bernie

Machen and SEC Commissioner Mike Slive were in attendance. See photo (Hayes Decl. Exhibit

C-14). Although Mr. Wagner makes no mention of it in his declaration, it is not plausible that the

Foundation did not travel to Florida to coordinate the events of the inaugural game, even though

it took place at the University in Texas. Travel of executives to Florida and communications to

coordinate a collaborative business venture conducted out of the state for mutual benefit has been

found sufficient for jurisdiction in Florida courts. See Baker Electronics, 219 F. Supp. 2d at 1263.

Some of Mr. Wagners statements are blatantly false. A poignant example is his statement

that the Foundation does not exploit the Texas A&M University name, logo or other intellectual

property on sportswear or other merchandise in Florida. 12th Man and Home of the 12th Man

are word marks used by the University as its exclusive service and trademarks. See information

downloaded from US Patent and Trademark Office (Hayes Decl. Exhibit C-15). The predecessor

in name of the Foundation was the Aggie Club, who would have needed permission from the

University to rename itself the 12th Man Foundation in 1988. So, if by its name only, the

Foundation exploits the intellectual property of the University.

Moreover, a handful of telephone calls made to Florida sporting goods stores prior to the

commencement of this action developed information that Aggie wear was available for purchase

at one store in Orlando, Florida, and at another in Orange Park, Florida. Hayes Decl. 3 & Exhibit

C-11. Ms. Brunner contends that discovery will show that this merchandise is available in Florida

pursuant to contracts among the University, the Foundation, and perhaps a collegiate license

merchandizer.

Thus, even if Mr. Wagner is technically correct that the Foundation does not exploit the


Universitys intellectual property in Florida, his careful comment is pregnant with the extreme

likelihood that the Foundation serves as a conduit between those who do such merchandizing and

the University, collecting a service fee along the way, in the same way it operates when it sells the

tickets of the Universitys Athletic Department to SEC events.

Ms. Brunner has adequately alleged in her First Amended Complaint that the Foundation

conducts business in Florida. The Foundation has failed to contest her allegations with evidence,

and Ms. Brunner has produced additional materials including contracts showing that, contrary to

its Presidents claims, the Foundation conducts business in Florida both for itself and through the

Universitys involvement in the SEC, with which the Foundation is intricately involved. Thus, Ms.

Brunner has alleged and demonstrated that the Court has personal jurisdiction over the Foundation

pursuant to 48.193 (1), because it conducts business in Florida within the meaning of that statute.

ii. The Foundation Admits that it Solicited and Sold Merchandise in Florida at the Time Ms. Brunner Claims She was Injured by its Misrepresentations, which

Constitutes the Commission of a Tort in Florida

The Foundation is subject to the jurisdiction of Florida courts if it caused injury to persons

or property within this state arising out of an act or omission made by it outside this state, if, at or

about the time of the injury, it was soliciting or provided goods or services in Florida. Additionally,

if the solicitation is a misrepresentation, it constitutes a tort committed in Florida for which Florida

courts have jurisdiction.

In his declaration, Mr. Wagner admits that the Foundation provides correspondence and

tickets to a very small number of non-endowed donors that reside in Florida, Wagner Decl. 6,

and that it corresponds with these donors regarding donations at their Florida addresses. Id. 9.

Ms. Brunner alleges that the Foundation solicits donations and business in Florida and that

she has been harmed not only by the Foundations breach of contract, but also by the

misrepresentations it made to her in Florida about her rights under the Endowment Agreement.

See FAC 103; Brunner MTD Decl. 6.

The Eleventh Circuit has consistently applied a broad construction of Section 48.193(a)(2)

and found personal jurisdiction over someone who commits a tortious act outside the state that


results in harm inside the state. Elandia Intern., Inc. v. Ah Koy, 690 F. Supp. 2d 1317, 1329 (S.D.

Fla. 2010) (citing Posner v. Essex Ins. Co., 178 F.3d 1209, 1215 (11th Cir.1999). Personal

jurisdiction may also attach under this tortious activity provision if a plaintiff can demonstrate

that the non-resident defendant committed a substantial aspect of the alleged tort in Florida by

establishing that the activities in Florida were essential to the success of the tort. Cable/Home

Commc'n Corp., 902 F.2d at 857 (quoting Williams Electric Co. v. Honeywell, Inc., 854 F.2d 389,

394 (11th Cir.1988)). Physical presence of the defendant in Florida is thus not required in all

instances. See, e.g., Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla.2002).

For instance, a foreign defendant can commit a tortious act in Florida through telephonic,

electronic, or written communications into Florida so long as the cause of action arises from these

communications. Id. at 1260. However, the place of injury must be within Florida. Licciardello v.

Lovelady, 544 F.3d 1280, 1283 (11th Cir. 2008) (where website alleged to be accessible in Florida,

although created in Tennessee, the Florida long-arm statute is satisfied; trademark infringement

on the website caused injury in Florida); see, e.g., Hollingsworth v. Iwerks Entm't, Inc., 947

F.Supp. 473, 477 (M.D.Fla.1996); L.O.T.I. Group Prod. v. Lund, 907 F.Supp. 1528, 1532

(S.D.Fla.1995).

Additionally, the Foundations misrepresentationsmade at or near the time it was

soliciting donations and making ticket sales in Floridahave caused Ms. Brunner both personal

and property injuries within the meaning of Section 48.193(a)(6). Ms. Brunner has been injured

by her loss of the game day experience that she formerly enjoyed from her Endowed Donor

benefits. See photo (Bruner MTD Decl. Exhibit B-1). Her personal injuries stem from the loss of

the association at home games that she and her family enjoyed for years with other donors holding

seats next to hers. Her property injuries include the loss, at least for season 2015, of the location

rights of her established seating location in Kyle Field, from which she had a unique vantage point

to view Aggie football games. Brunner Aff. 24 [DE #31-1] Ms. Brunner contends that this

experience and location are unique, special and irreplaceable and that money cannot adequately

compensate for her loss of them. Until she decided to bring this lawsuit, Ms. Brunner had accepted


the Foundations misrepresentations as true and relied on them by applying her Priority Points

toward stadium seating in an area that she considers less desirable than her established seating

location in Kyle Field for the reasons stated above. Brunner Aff. 36-40 [DE #31-1].

The misrepresentations of the Foundation were made in part through the telephone call she

had with Foundation President Skip Wagner FAC 36; Brunner Aff. 31 (email and

correspondence with Mr. Wagner in Florida); Brunner MTD Decl. 6, and constitute a tort

committed in Florida. Ms. Brunners injury from the Foundations misrepresentations are and will

be suffered in Florida, both when the Foundation communicated them to Ms. Brunner in Florida,

and also when the Foundation fails to provide her Endowed Donor benefits at games played against

the Gators in Florida.

iii. The Foundation Breached its Endowment Agreement with Ms. Brunner in Florida

To exercise long arm jurisdiction for a breach of contract, a party must demonstrate the

defendants failure to perform acts required by the contract to be performed in Florida. Section

48.193(7). See, e.g., High Country Insurance Agency v. Admin. Management Services Syndicate,

Ltd, 549 So.2d 776, 776 (Fla. 3d DCA 1989) (stating that refusal to make contractually required

payments caused foreseeable injuries in Florida ... and does not offend due process); Pellerito

Foods, Inc. v. American Conveyors Corp., 542 So.2d 426 (Fla. 3d DCA 1989) (Extending the

long-arm statute when out-of-state corporation traveled to home state twice and was required to

remit payment to home state). Baker Electronics, 219 F. Supp. 2d at 1263 (failure to deliver design

specifications to Florida sufficient for jurisdiction over out-of-state company).

Ms. Brunner alleges that the Foundation breached her Endowment Agreement by requiring

her to make additional payments to receive tickets for away games, which now include games in

Florida against the Gators. FAC 29, 42 [D.E. #31]; Brunner Aff. 23, 40 [D.E. #31-1]; Brunner

MTD Decl. 6 [Exhibit B hereto].

The Foundation argues that no part of its breach occurred in Florida, because it was not

contractually required to perform any act in Florida. Mtn. at 7. While that may have been true

when the Aggies were part of the Big 12, the contracted performance changed when the University


became part of the SEC. The Aggies will play the Gators in Florida sometime during the lifetime

of Ms. Brunner. Thus, she reasonably anticipates the Foundations breach, and the Foundation has

repudiated its contractual obligation to provide Ms. Brunner with best available tickets at no

charge to use in Florida at the Aggie/Gator away games. Clearly, the Foundation breaches the

Endowment Agreement in Florida in this manner, and jurisdiction lies in the Florida courts to

remedy this breach.

f. Due Process is Not Offended Because Ms. Brunner Alleges Sufficient Minimum Contacts with Florida by the Foundation for Both General

and Specific Jurisdiction.

While the Florida long-arm statute does extend to the Foundations activities, this Court

must determine whether the activities were sufficient to maintain minimum contacts with this state.

The Due Process Clause protects an individuals liberty interest in not being subject to the binding

judgments of a forum with which he has established no meaningful contacts, ties, or relations.

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471472 (1985).

i. General Jurisdiction

The Foundation cites the Daimler case to support its argument that general jurisdiction

exists only where a company is incorporated or has its principal place of business. Mtn. at 6-7.

However, that is not a correct statement of the law. Goodyear did not hold that a corporation

may be subject to general jurisdiction only in a forum where it is incorporated or has its principal

place of business; it simply typed those places paradigm all-purpose forums. Daimler AG v.

Bauman, 134 S. Ct. 746, 760 (2014) (emphasis in original). [T]he inquiry under Goodyear is not

whether a foreign corporations in-forum contacts can be said to be in some sense continuous and

systematic, it is whether that corporations affiliations with the State are so continuous and

systematic as to render [it] essentially at home in the forum State. Id. at 761.

The Daimler court refused to extend these exemplar bases of general jurisdiction to a

foreign corporation whose subsidiary had substantial sales of its products in the forum state, but

where neither the parent nor its American subsidiary were incorporated or had its principal place

of business in the forum state. Id. (However, the court claims inconsistently that it was assuming


that the subsidiary qualifies as at home in the forum state, id. at 758.) Interestingly, the Court

noted that at no point had plaintiffs alleged that the subsidiary was the alter ego of the foreign

corporation. Id.

Ms. Brunner alleges that the Foundation conducts a business venture in Florida through

its participation in the [SEC] acting in concert with other members of the SEC to advertise and

promote in Florida SEC athletic contests. FAC 47. This is sufficient to allege general

jurisdictionthat the Foundation is at home in Floridaunless the Foundation alleges specific

facts refuting it. As noted above, the declaration of Mr. Wagner states legal conclusions and, at

best, half-truths insufficient to refute Ms. Brunners allegation of general jurisdiction.

In particular, the Foundation does not (and cannot) refute that one of the members of the

SEC, the University of Florida, is at home in Florida, when it acts in concert with the Foundation

to promote SEC games in Florida and elsewhere. And, the Foundation fails to allege, much less

establish with credible evidence, that the SEC is not at home in Florida.

While the Daimler court rejected the Ninth Circuits agency theory relying on the

importance of the local subsidiarys work to the foreign parent as too broad, it did not rule out

that general jurisdiction may be established through the acts of an agent in the forum state. Daimler

at 759 (But we need not pass judgment on invocation of an agency theory in the context of general

jurisdiction, for in no event can the appeals courts analysis be sustained.).

Ms. Brunner has alleged that the Foundation acts as the Universitys agent and in concert

with the SEC to engage in business in Florida. Mr. Wagners denial of agency between the SEC

and the Foundation, Wagner Decl. 5, is a legal conclusion unsubstantiated with evidence and, in

any event, is very likely untrue, given that agreements between the Foundation and the University

create an agency (if not alter ego) relationship between them, see Hayes Decl. Exhibits C-1

through C-8, and that the University is unquestionably a member institution of the SEC, an alleged

fact which the Foundation does not refute.

Ms. Brunners unrefuted allegations establish that the Foundation is subject to the general

jurisdiction of the Court.


ii. Specific Jurisdiction

Even if it has only the isolated and sporadic contact with Florida that it attempts to allege

in Mr. Wagners declaration, the Foundation may still maintain minimum contacts with Florida

under the doctrine of specific jurisdiction. The Eleventh Circuit utilizes a three-part test for

determining whether the minimum contacts requirement has been met: 1) the contacts must be

related to the plaintiff's cause of action; 2) they must involve some act by which the defendant

purposefully avails itself of the privilege of conducting activities within the state; and 3) the

defendants contacts with the state must be such that the defendant would reasonably anticipate

being haled into court there. Posner, 178 F.3d at 1220 (quoting Vermeulen v. Renault, U.S.A., Inc.,

985 F.2d 1534, 1546 (11th Cir.1993)).

As set forth above, Ms. Brunner alleges that the Foundation directed communications to

her in Florida including emails and phone calls in which it misrepresented her rights under the

Endowment Agreement. Additionally, Ms. Brunner alleges that the Foundation breached the

Endowment Agreement by requiring her to pay additional substantial sums of money to maintain

access to the away game tickets that it had agreed to provide to her on a complimentary basis

during her lifetime. She reasonably anticipates that the Foundation will further breach its

obligation to provide her with complimentary tickets to games between the Aggies and the Gators

held in Florida for the remainder of her life.

These unrefuted allegations establish each prong of the Eleventh Circuits three-part test.

Accordingly, the Foundation is subject to the specific jurisdiction of the Court.

g. The Courts Exercise of Personal Jurisdiction over the Foundation Will Foster Traditional Notions of Fair Play and Substantial Justice.

The Foundations arguments that personal jurisdiction would offend traditional notions of

fair play and substantial justice is based on the false premises that the Foundation will be unduly

burdened and that Florida has little interest in Plaintiff and the proposed Class obtaining relief.

First, the Foundation has substantial resources, and Ms. Brunners allegations are unrefuted

that the Foundation conducts business in Florida. The reasonable inference drawn from these facts

is that the Foundations Texas employees regularly travel to Florida and that, in any event, the


relative cost to the Foundation of defending in Texas is minimal when compared to the personal

cost to Ms. Brunner of having to pursue her claim in Texas. See Meier ex rel. Meier v. Sun Intern.

Hotels, Ltd., 288 F.3d 1264, 1276 (11th Cir. 2002) (discussing relative financial burdens on family

and resort operator).

Second, the hidden but obvious interest of the Foundation in having this case tried not just

in Texas, but specifically in the state courts of Texas, is that those courts are not friendly to class

actions.7 So, it is no wonder that the Foundation does not even suggest that this action be

transferred to the federal courts of the district in which the University is located, which is the

Southern District of Texas. However, because the Court has personal jurisdiction over the

Foundation and because millions of football fans will travel to Florida over the years to attend SEC

football games, [b]oth Florida and the interstate judicial system have a strong interest in seeing

this matter resolved in Florida. Id. Floridas interest is that the proposed Class and all SEC fans

receive the benefits of their bargains with SEC member institutions as effected through their

agents, such as the Foundation, and that they be dealt with truthfully.

II. VENUE IN FLORIDA IS PROPER

Here, again, the Foundations argument is based on false premises. Venue is proper in

Florida because a substantial part of the events giving rise to this lawsuit occurred in Florida or

will occur here. 28 U.S.C. 1391(b)(2).

The Foundation wrongly looks to the location of past acts of the parties relationship

explanation of the Endowment benefits, tender of the Endowment, tender of past performances,

see Mtn. at 14instead of the location where the events or omissions giving rise to the claim

occurred. 28 U.S.C. 1391(b)(2).

The false communications of the Foundation about Ms. Brunners rights under the

7 [T]he uptick in class action activity within the Fifth Circuit may well be a result of plaintiffs seeking to avoid

the unfriendly terrain of Texas state courts post HB4. While the Fifth Circuit is generally perceived to be

conservative and not accommodating to class action litigation, the absence of the strictures of HB4 make the

federal courts a more palatable alternative than a state court subject to the new Rule 42 and the binding Texas

Supreme Court jurisprudence.

44 The Advoc. (Texas) 70, 77 (2008) (Texas State Bar publication).


Endowment Agreement were delivered to her in Florida. Thus, Florida is the location where she

was misled.

Additionally, the Foundation will breach the Endowment Agreement in Florida when it

fails to provide Ms. Brunner with complimentary tickets to away games held in Florida between

the Aggies and the Gators. The impact of this breach of promise will felt by Ms. Brunner in

Florida, when she misses the game or has to pay substantial sums of money to obtain her

complimentary tickets.

Whether or not more events occurred in Texas than in Florida is irrelevant; a case may be

brought in any of the potentially several judicial districts in which a claim arises in substantial part.

See Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371 (11th Cir. 2003). Venue lies in the Southern

District of Florida because it is a district in which a substantial part of the harms to Ms. Brunner

occurred or will occur.

III. THE COURT HAS SUBJECT MATTER JURISDICTION

The Court has subject matter jurisdiction because the home state and local controversy

exceptions to CAFA do not apply.8 First, as shown above, this is not a local controversy, but

instead is a matter of national importance, as the Texas Aggies have successfully entered the

national markets for collegiate football, where the bona fides of its treatment of fans is of interest

not just to Texans, but to everyone who follows college sports. Additionally, Florida is interested

in protecting the millions of fans that will view or attend SEC games held within its borders.

Finally, the fair treatment of fans is similarly of interest in the eleven states in which the SEC

operates in the southeastern part of the United States.

Second, these exceptions do not apply, because Texas is not the State in which [this]

action was originally filed. 28 USCA 1332 (d)(3) & (d)(4)(A)(i)(I). This action was originally

filed in Florida. It is a separate action from the action brought in Texas. The fact that the same

counsel filed these two separate actions does not render them the same action.

8 The Court has diversity jurisdiction over Ms. Brunners individual action because the parties are completely diverse, and the value of her loss exceeds $75,000. See FAC 44.


The Foundations arguments to the contrary, while interesting, are meritless. CAFAs

originally filed language addresses the situation where venue is transferred from the original

court to a different court. The determination of whether the action is local looks to the state of

the transferor court. The action at bar was not transferred here, but instead was originally filed

here by Ms. Brunner.

The Foundations analysis goes awry, because it confuses case with action. Mtn. at

16. An MDL case may be comprised of many separate actions, but even if they are

consolidated for discovery, they remain separate and distinct actions. Similarly, approximately 15

separate actions were brought against the Foundation in Texas state courts by Endowed Donors,

many of whom had the same legal counsel. While the allegations of these cases may be similar,

they are distinct actions filed in different courts with different docket numbers and are managed

separately, just as the Texas and Florida class actions are separate and distinct actions.

The language of CAFA is clear, and it provides this Court subject matter jurisdiction.

CONCLUSION

For all of these reasons, Ms. Brunner asks that the Court deny the Foundations motion to

dismiss in its entirety.

Dated: May 11, 2015 Respectfully submitted,

PODHURST ORSECK, P.A

s/ JOHN GRAVANTE, III

Peter Prieto

John Gravante III.

25 West Flagler Street, Suite 800

Miami, Florida 33130

(305) 358-2800

[email protected]

[email protected]


DEBRA BREWER HAYES

CHARLES CLINTON HUNTER

700 Rockmead, Suite 210

Houston, TX 77339-2111


Telephone: (281)-815-4963

Facsimile: (832) 575-4759

[email protected]

[email protected]

ATTORNEYS FOR PLAINTIFF


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