202387769 –
ARMINGTON, TIFFANY vs. RIVERA, BERNADETTE
(Court 189, OUTLAW TAMIKA CRAFT)
DEC 22, 2023 – APR 3, 2024
Defendant Bernadette Rivera, reserving all rights and defenses, specially appears pursuant to Texas Rule of Civil Procedure 120a prior to any other pleading and respectfully requests that the Court sustain her Special Appearance and dismiss Plaintiff, Tiffany Armington’s claims in her Original Petition and Application for Temporary Restraining Order (“Original Petition”) against Defendant for lack of personal jurisdiction.
In support of her sworn motion, Defendant respectfully shows the Court as follows:
A. INTRODUCTION AND BACKGROUND
1. Plaintiff, Tiffany Armington is an individual residing at 14870 Welbeck Drive, Channelview, Texas 77530 in Harris County, Texas.
2. Defendant, Bernadette Rivera is an individual residing at 6201 Florence Drive, Morrow, Georgia 30260 in Clayton County, Georgia.
3. This lawsuit arises from Plaintiff’s extramarital relationship with Defendant’s husband, Delmiro Rivera that began in December 2021.
4. On or about December 22, 2023, Plaintiff filed suit against Defendant alleging multiple causes of actions including defamation, theft, intentional infliction of emotional distress, and intrusion on seclusion.
B. ARGUMENT AND AUTHORITIES
5. To issue a binding judgement the court must have personal jurisdiction over the parties.1 A Texas court may exercise personal jurisdiction over an out-of state defendant if
(1) it is authorized to do so by the state’s long-arm statute
and
(2) the defendant has such minimum contacts with the forum state that it would not offend traditional notions of fair play and substantial justice.2
6. Bernadette Rivera is an out-of state defendant and has never been a resident of Texas.
Defendant does not own property in Texas nor does she conduct business in Texas.
Instead, Defendant is, has been, and remains a citizen of Georgia.
Thus, Plaintiff is the only party in this lawsuit who has any connection to the state of Texas.
a. The Texas Long-Arm statute does not authorize jurisdiction over defendant.
7. The Texas long-arm statute reaches ‘as far as the federal constitutional requirements for due process will allow.’3
Furthermore, “the statute’s requirements are satisfied if exercising jurisdiction comports with federal due process limitation.”4
8. An exercise of jurisdiction over Defendant would run afoul of Defendant’s due process rights because she has not had the requisite minimum contacts with Texas.
Furthermore, as required, Plaintiff has not met her initial burden of “plead[ing] sufficient allegations to bring the nonresident defendant within the reach of Texas’s long arm-statute.”5
Thus, the Texas Long- Arm Statute does not authorize a Texas court to exercise personal jurisdiction over Defendant in the current case.
1 See Luciano v. SprayFoamProducts.com, LLC, 625 S.W.3d 7-8. (Tex. 2021).
2 See Facebook, Inc. v. Doe, 650 S.W.3d 748, 756 (Tex. App. 2022), review denied (Sept. 1, 2023).
3 Spir Star AG v. Kimich, 310 S.W.3d 868, 872 (Tex. 2010).
4 Id.
5 Kelly v. Gen. Interior Const., Inc., 301 S.W.3d 653, 658 (Tex. 2010).
b. Defendant has not had minimum contacts with Texas.
9. Exercise of jurisdiction over a nonresident does not offend traditional notions of fair play and substantial justice when the nonresident has minimum contacts with the forum.6
Minimum contacts exits when the defendant must have purposely availed themselves ‘of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.’7
10. Defendant has not purposely availed herself of the privilege of conducting activities with Texas to give rise to the level of minimum contacts necessary to subject her to the jurisdiction of a Texas court.
Plaintiff improperly bases her claims for jurisdiction on her connections to and contacts with Texas as a resident of Harris County.
While Plaintiff did allege many facts, all of which Defendant disputes, Plaintiff did not allege that acts which are the basis for her claims against Defendant occurred in Texas.
Hence, Defendant has not had the sufficient minimum contacts with Texas based on either general jurisdiction or specific jurisdiction.
i. General and Specific Jurisdiction
11. Under Texas law, “a nonresident defendant’s forum-state contacts may give rise to two types of personal jurisdiction.”8
These types of personal jurisdiction are known as specific jurisdiction and general jurisdiction.9
a) General jurisdiction cannot be established.
6 See Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 154-55 (Tex. 2013).
7 Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)).
8 Id.
9 Id.
12. General jurisdiction is established when the defendant has continuous and systematic contacts with the forum state so much so that the defendant is essentially “at home.”10
A court may exercise general jurisdiction ‘even if the cause of action did not arise out of or relate to the defendant’s contacts with the forum state.’11
General jurisdiction is usually satisfied when an individual is domiciled in Texas 12 or voluntary present in the state when served with process.13
13. Defendant is not domiciled in Texas nor was she served with process while in Texas.
Instead, Defendant was served notice of this lawsuit at her home in Georgia, where she has been domiciled for 18 years.
Plaintiff has not alleged any facts or supplied any proof to establish that Defendant has such continuous and systematic contacts with Texas that she is essentially “at home.”
Hence, general jurisdiction does not exist.
b) Specific jurisdiction cannot be established.
14. Unlike general jurisdiction, a defendant’s ‘isolated or sporadic’ contacts with the forum state are sufficient to exercise specific jurisdiction.14
However the events that give rise to the Plaintiff’s claims must have occurred in the forum state.15
The Texas Supreme court has ruled “a claim arises from or relates to a defendant’s forum contacts if there is a ‘substantial connection between those contacts and the operative facts of the litigation.’”16
15. In the case at hand, because Defendant has not any contacts with Texas in over 20 years determining the “substantial connection” between those contacts and the facts of the case is unnecessary.
The alleged facts asserted by Plaintiff occurred within the last five years.
This is well
10 TV Azteca v. Ruiz, 490 S.W.3d 29, 37 (Tex. 2016).
11 Id. (quoting Spir Star AG v. Kimich, 310 S.W.3d 868, 872 (Tex.2010)).
12 See Daimler AG v. Bauman, 571 U.S. 117, 136-37 (2014).
13 See Stallworth v. Stallworth, 201 S.W.3d 338, 344 (Tex. App.—Dallas 2006, no pet.).
14 Spir Star, 310 S.W.3d at 872-73.
15 Old Republic Nat’l Title Ins. Co. v. Bell, 549 S.W.3d 550, 559-565 (Tex. 2018).
16 Ruiz, 490 S.W.3d 53.
below the timeframe in which Defendant has had any contact with Texas.
Therefore, Plaintiff’s cause of action did not arise from or relate to any of Defendant’s contacts with Texas.
16. While Defendant disputes the allegations contained in Plaintiff’s Original Petition, even if the court were to accept Plaintiff’s facts as alleged as true, it is not enough to find personal jurisdiction.
Plaintiff improperly attempts to rely on the alleged exchange of multiple phone calls, text-messages, e-mails, and letters to subject Defendant to the jurisdiction of a Texas Court.
These alleged exchanges do not qualify “as the type of ‘purposeful contacts’ required . . . to convey specific jurisdiction.”17
Therefore, no specific jurisdiction exists with respect to Defendant.
c. Exercising jurisdiction over Defendant would deprive her of due process.
15. In determining whether an exercise of personal jurisdiction over an out of state defendant would offend traditional notion of fair play and substantial justice the courts examine five factors.
These include:
(1) the burden on the defendant;
(2) the interests of the forum state in adjudicating the dispute;
(3) the plaintiff’s interest in obtaining convenient and effective relief;
(4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies;
and
(5) the shared interest of several states in furthering fundamental substantive social policies.18
Because Defendant is a citizen of Georgia and has never been domiciled in Texas, an undue burden would be placed upon Defendant to defend herself against Plaintiff’s claims.
Texas also, does not have a huge interest in resolve the dispute because many of the witnesses and evidence is located in Georgia.
Furthermore, the alleged events given rise to Plaintiff’s claim did not occur in Texas.
In fact, Plaintiff alleges in her Pleadings events that took place in Georgia. Hence, a Texas court’s
17 Proskauer Rose LLP v. Pelican Trading, Inc., No. 14-08-00283-CV, 2009 WL 242993, at *4 (Tex. App. Feb. 3, 2009).
18 Facebook, Inc. v. Doe, 650 S.W.3d 748, 759 (Tex. App. 2022), review denied (Sept. 1, 2023).
exercise of personal jurisdiction over Defendant in this matter does offend traditional notion of fair play and substantial justice, ultimately violating Defendant’s constitutional rights.
C. CONCLUSION AND PRAYER FOR RELIEF
For these reasons, Defendant is not subject to the personal jurisdiction of the Texas courts. Defendant respectfully requests that the Court set her Special Appearance for a hearing, and that, after the hearing, the Court sustain Defendant’s Special Appearance, reserving all of Defendant’s rights and defenses, and enter a final judgment dismissing the causes of action of Plaintiff against Defendant with prejudice.
Defendant further requests such other and further relief as may be determined by the Court to be appropriate.
Respectfully submitted,
The Devenere Law Collective PLLC
440 Louisiana Street
Suite 900
Houston, TX 77002
Phone: 713-254-1157
/s/ Chasity Henry
Kashmire L. Terry,
Texas Bar No. 24091744
Email: kterry@devenerelaw.com
Chasity Henry,
Texas Bar No: 24128615
Email: chenry@devenerelaw.com
ATTORNEYS FOR BERNADETTE RIVERA
CERTIFICATE OF SERVICE
I certify that a true copy of this document was served in accordance with Rule 21a of the Texas Rules of Civil Procedure on the following on February 23, 2024.
Kamiel Harrison via electronic filing manager at info@kamielharrison.com. Kamiel Harrison via electronic filing manager at eservice@kamielharrison.com.
Kashmire L. Terry
Chasity Henry
Attorneys for Defendant
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