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

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
PPrieto@podhurst.com
JGravanteIII@podhurst.com
THE HAYES LAW FIRM, PC
DEBRA BREWER HAYES
CHARLES CLINTON HUNTER
700 Rockmead, Suite 210
Houston, TX 77339-2111
Telephone: (281)-815-4963
Facsimile: (832) 575-4759
dhayes@dhayeslaw.com
chunter@dhayeslaw.com
ATTORNEYS FOR PLAINTIFF

THE HAYES LAW FIRM, PC

www.dhayeslaw.com

Plaintiffs Opposition to Motion to Dismiss

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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

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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

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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

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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.

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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.

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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 12 th 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.

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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

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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.

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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:

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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

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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 longarm 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,

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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).

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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.
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.
8

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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
PPrieto@podhurst.com
JGravanteIII@podhurst.com
THE HAYES LAW FIRM, PC
DEBRA BREWER HAYES
CHARLES CLINTON HUNTER
700 Rockmead, Suite 210
Houston, TX 77339-2111

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Telephone: (281)-815-4963
Facsimile: (832) 575-4759
dhayes@dhayeslaw.com
chunter@dhayeslaw.com
ATTORNEYS FOR PLAINTIFF

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