RURAL MEDIA GROUP, INC. v. PERFORMANCE ONE MEDIA

• Decision Date: 20 April 2010
• Docket Number: Case No. 8:09CV447.
• Citation: 697 F. Supp.2d 1097
• Parties: RURAL MEDIA GROUP, INC., a Delaware corporation, and RFD-TV, LLC, a Delaware limited liability company, Plaintiffs, v. PERFORMANCE ONE MEDIA, LLC, a New York limited liability company, and John Doe, Defendants.
• Court: U.S. District Court — District of Nebraska

697 F. Supp.2d 1097

RURAL MEDIA GROUP, INC., a Delaware corporation, and RFD-TV, LLC, a Delaware limited liability company, Plaintiffs, v. PERFORMANCE ONE MEDIA, LLC, a New York limited liability company, and John Doe, Defendants.

Case No. 8:09CV447.

United States District Court, D. Nebraska.

March 11, 2010.

Opinion Denying Reconsideration April 20, 2010.

James R. Place, Place Law Firm, Thomas H. Dahlk, Victoria H. Buter, Husch, Blackwell Law Firm, Omaha, NE, for Plaintiffs.

Megan S. Wright, Cline, Williams Law Firm, Omaha, NE, Ricardo R. Olsen, T. Wade Welch, T. Wade Welch and Associates, Houston, TX, for Defendants.

MEMORANDUM AND ORDER

LAURIE SMITH CAMP, District Judge.

This matter is before the Court on Defendant Performance One Media, LLC's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(2), or, in the Alternative, Motion to Transfer Pursuant to 28 U.S.C. § 1404(a). (Filing No. 5.) For the reasons set forth below, the Motion to Dismiss will be denied, but the Motion to Transfer will be granted.

FACTUAL BACKGROUND

Plaintiff Rural Media Group, Inc. ("RMG") is a Delaware Corporation with its principal place of business in Omaha, Nebraska. (Filing No. 1-1, Compl. ¶ 1; Filing No. 32-2, Ex. A, Gottsch Aff. ¶ 3.) RMG owns and operates Plaintiff RFD-TV, LLC ("RFD-TV"), a Delaware limited liability company with its principal place of business in Omaha. (Filing No. 1-1, Compl. ¶¶ 2, 5; Filing No. 32-2, Ex. A, Gottsch Aff. ¶¶ 4, 5.) RFD-TV is a "national and international television network" that focuses on "the needs and interests of agricultural and rural America." (Filing No. 32-2, Ex. A, Gottsch Aff. ¶ 5.) Defendant Performance One Media, LLC ("Performance One") is a New York limited liability company with its principal place of business in Greenwood Village, Colorado. (Filing No. 7-2, Ex. A, Sigg Decl. ¶ 2.) Performance One does not "maintain any offices, mailing addresses, telephone listings, agents, employees, or personnel within the State of Nebraska." (Id. ¶ 3.) Also, it does not own real or personal property in Nebraska, is not licensed to do business in Nebraska, and does not maintain a registered agent for service of process in Nebraska. (Id.)

In mid-October 2009, Patrick Gottsch, who served as President of both RMG and RFD-TV, telephoned Performance One and invited Robert Stigg and Michael Norton, who were "the principal officers of Performance One," to a meeting in Omaha. (Filing No. 32-2, Ex. A, Gottsch Aff. ¶¶ 3-4, 7-8.) Stigg and Norton accepted the invitation, and on or about October 20, 2009, they met with Gottsch in Elkhorn, Nebraska, for approximately four hours. (Id. ¶¶ 7-8.) During this meeting, Stigg and Norton told Gottsch that Performance One had formed a "start-up" television network called In Country Television ("ICTV") that would be targeted toward "the outdoorsman" and "the rural way of life." (Id. ¶ 8.) Performance One lacked content or programming for ICTV (apart from infomercials), however, and Stigg and Norton told Gottsch that they had an "immediate need for programming." (Id.) Gottsch asked Stigg and Norton whether "it would be productive to explore the potential of jointly undertaking projects," and Stigg and Norton expressed agreement with this suggestion. (Id. ¶ 9.) Gottsch also told Stigg and Norton that RFDTV's programmers were "under contract" and advised them that Performance One should not interfere with the relationships between Plaintiffs and their programmers. (Id. ¶ 16.) Stigg and Norton replied that Performance One would engage in no such interference. (Id. ¶ 17.)

Between mid-October and November 2009, representatives of RFD-TV and Performance One exchanged an unspecified number of e-mails, text messages, and telephone calls. (Filing No. 32-2, Ex. A, Gottsch Aff. ¶¶ 13, 22.) Some of these e-mails and text messages were exchanged between Norton and Edward Frazier, who served as the Director of Cable Sales for Plaintiffs. (Id. ¶ 13.) Also, some of these e-mails and telephone calls related to "potential future business undertaking(s) by and between the parties." (Id. ¶ 22.) Gottsch states that during this period of time, however, "Performance One began secretly soliciting RFD-TV's largest and longstanding programmer client, Superior Livestock Auction, Inc. ("Superior Livestock")." (Id. ¶ 14.) The record indicates that Superior Livestock is a Nevada corporation with its principal place of business in Fort Worth, Texas. (Filing No. 7-4, Ex. C, Compl. ¶ 3.) No evidence suggests Performance One's alleged solicitation of Superior Livestock occurred within the State of Nebraska.

Sometime in early November 2009, Frazier and Gottsch met with Stigg, Norton, and other representatives of Performance One in Denver, Colorado, to "continue to explore the potential of jointly undertaking project(s) beneficial to Plaintiffs and Performance One." (Filing No. 32-2, Ex. A, Gottsch Aff. ¶¶ 18-19.) During the meeting, Gottsch repeated his statement that Performance One should not interfere with the business relationships between Plaintiffs and their programmers, and Stigg and Norton replied that Performance One had not, and would not, engage in any such interference. (Id. ¶¶ 20-21.) There is no evidence of further meetings between Performance One and Plaintiffs, and there is no evidence that the parties ever came to an agreement to enter into any joint projects or business undertakings.

On or about November 4, 2009, representatives of Performance One and Superior Livestock entered into a Letter of Intent ("LOI") stating that "Superior Livestock will be carried on ICTV for three years beginning January 1 2010 and go through the sic December 31 2012." (Filing No. 7-6, Ex. E, LOI at 1, 2.) Gottsch adds that sometime "during the same time period," Performance One "induced" two of RFD-TV's three advertising salesmen "to tender their resignations to RFD and begin working for Performance One." (Filing No. 32-2, Ex. A, Gottsch Aff. ¶ 23.) He also states that on December 14, 2009, a representative of Performance One attempted to persuade one of Plaintiff's other programmers to leave RFD-TV and "come over" to ICTV (see id. ¶ 29 (citing Filing No. 18-1, Ex. 1, Lamb Aff.)), though the operative complaint was filed before this incident allegedly occurred (see Filing No. 1-1). No evidence suggests these salesmen or this second programmer were contacted in the State of Nebraska by Performance One.¹

Sometime during the latter half of November 2009, Superior Livestock evidently decided that it would not enter into the business arrangement with Performance One that was outlined in the LOI. (Filing No. 32-2, Ex. A, Gottsch Aff. ¶¶ 24-25.) On November 24, 2009, Performance One sent a letter to Plaintiffs advising them that Performance One had a written agreement with Superior Livestock "for the future broadcast of Superior's livestock auctions, production auctions, and other television programming," and warning Plaintiffs that Performance One would "pursue any and all causes of action including... tortious interference with contract and/or tortious interference with prospective business relations" if Plaintiffs were to "take any actions that interfere with Performance One's ... agreement with Superior." (Filing No. 7-11, Ex. J at 1.) On December 1, 2009, Performance One filed suit against Superior Livestock in the Northern District of Texas "for breach of contract and injunctive relief ... based on Superior Livestock's anticipatory breach of the LOI." (Filing No. 6, Def.'s Br. at 2-3 (citing Filing No. 7-4, Ex. C, Compl. ¶¶ 22-26).) RMG and RFD-TV were not named defendants in this complaint, though the complaint did include the following allegation: "RFD-TV is aware of the agreement between Superior Livestock and Performance One, yet RFD has chosen to tortiously interfere with Performance One's contractual rights." (Filing No. 7-4, Ex. C, Compl. ¶ 20.) On December 4, 2009, Performance One amended its complaint in the Northern District of Texas to add RMG and RFD-TV as defendants. (Filing No. 7-7, Ex. F, Am. Compl. at 1.)

Meanwhile, on December 2, 2009, RMG and RFD-TV filed a seven-count complaint in the District Court of Douglas County, Nebraska, against Performance One and "John Doe," alleging that Defendants interfered with Plaintiffs' business relationships with its programmers. (Filing No. 7-3, Ex. B, Compl. ¶¶ 5-20.) The Plaintiffs' seven causes of action are labeled as follows: (1) "accounting," (2) "misrepresentation," (3) "reckless indifference," (4) "unlawfully restrain trade," (5) "civil conspiracy," (6) "tortious interference," and (7) "declaratory judgment." (See generally id.) On December 11, 2009, Performance One removed the action to this Court. (See generally Filing No. 1.) Plaintiffs' complaint filed on December 2, 2009, in the District Court of Douglas County, Nebraska, is therefore the operative complaint in this case.

Performance One filed the instant motion on December 14, 2009, arguing that the Complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(2) because this Court lacks personal jurisdiction over Performance One. (Filing No. 5.) In the alternative, Performance One asks the Court to transfer this case to the United States District Court for the Northern District of Texas pursuant to 28 U.S.C. § 1404(a), either because Performance One's action in the Northern District of Texas was "first filed" and relates to the same subject matter that forms the basis of the instant complaint, or because "compelling circumstances" warrant a transfer. (Filing No. 5; Filing No. 6 at 12-14.)

STANDARDS OF REVIEW

I. Personal Jurisdiction

To survive a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, "the plaintiff must state sufficient facts in the complaint to support a reasonable inference that defendants may be subjected to jurisdiction in the forum state." Steinbuch v. Cutler, 518 F.3d 580, 585 (8th Cir.2008) (citing...