Osvaldo Rodriguez Borunda and Editora Paso Del Norte, S.A. De C v. v. Free and Sovereign State of Chihuahua ( 2021 )

ACCEPTED
08-21-00135-CV
EIGHTH COURT OF APPEALS
EL PASO, TEXAS
11/2/2021 1:41 PM
08-21-00135-CV ELIZABETH G. FLORES
CLERK
NO. 08-21-00135-CV
IN THE EIGHTH COURT OF APPEALS FILED IN
8th COURT OF APPEALS
EL PASO, TEXAS EL PASO, TEXAS
11/2/2021 1:41:02 PM
ELIZABETH G. FLORES
OSVALDO RODRIGUEZ BORUNDA AND Clerk
EDITORA PASO DEL NORTE, S.A. DE C.V.
Appellants
v.
FREE AND SOVEREIGN STATE OF CHIHUAHUA
Appellee
ON APPEAL FROM THE 448TH DISTRICT COURT
EL PASO COUNTY, TEXAS
CAUSE NO. 2020DCV0628
APPELLANTS’ REPLY BRIEF
Harrel L. Davis III
State Bar No. 05567560
Gordon Davis Johnson & Shane, P.C.
4695 N. Mesa, Suite 100
El Paso, Texas 79912
(915) 545-1133
Fax (915) 545-4433
hdavis@eplawyers.com
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS ....................................................................................... ii
INDEX OF AUTHORITIES ................................................................................. iii
Cases .............................................................................................................. iii
Other Authorities ......................................................................................... iv
STATEMENT OF FACTS ......................................................................................1
ARGUMENT ............................................................................................................5
PRAYER .................................................................................................................13
CERTIFICATE OF COMPLIANCE ..................................................................14
CERTIFICATE OF SERVICE ............................................................................15
APPENDIX .............................................................................................................16
ii
INDEX OF AUTHORITIES
Cases
Am. Type Culture Collection, Inc. v. Coleman,
83 S.W.3d 801, 806 (Tex. 2002) ............................................................................. 5
Asahi Metal Indus. Co. v. Superior Court of Cal.,
480 U.S. 102, 114, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987) ................................ 12
BMC Software Belg. N.V. v. Marchand,
83 S.W.3d 789, 795, 797 (Tex. 2002) ................................................................. 5, 6
Bristol-Myers Squibb Co. v. Superior Court,
__ U.S. __, 137 S. Ct. 1773 (2017) ......................................................................... 8
Burger King Corp. v. Rudzewicz,
471 U.S. 462, 475-476 (1985). ................................................................................ 6
Daimler AG v. Bauman,
571 U.S. 117, 122; 134 S. Ct. 746, 754 (2014) ................................................... 6, 7
Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C.,
815 S.W.2d 223, 229, 231 (Tex. 1991) ................................................................. 11
Int’l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945) ...................................................................................... 10
Keeton v. Hustler Magazine, Inc.,
465 U.S. 770, 776 (1984) ...................................................................................... 11
Michel v. Rocket Eng'g Corp.,
45 S.W.3d 658, 683 (Tex. App.—Fort Worth 2001, no pet.) ............................... 12
Michiana East Livin’ Country, Inc. v. Holten,
168 S.W.3d 777, 785 (Tex. 2005) ........................................................................... 7
Moncrief Oil Int’l v. OAO Gazprom,
414 S.W.3d 142, 150, 154-155, 158 (Tex. 2013)....................................6, 8, 10, 11
iii
Spir Star AG v. Kimich,
310 S.W.3d 868, 872, 878-79 (Tex. 2010)..................................................7, 10, 11
Other Authorities
Tex. Civ. Prac. & Rem. Code Ann. §17.042 ............................................................. 5
4 Charles Alan Wright & Arthur R. Miller
Federal Practice and Procedure § 1067.5 (3d ed. 2002) ......................................... 8
Record References
The following record references will be used in Appellants’ Reply Brief:
Clerk’s Record…………………………………………………………CR [Page]
iv
STATEMENT OF FACTS
It appears from its Brief that Appellee has figured out that it has sued the
wrong entity (assuming that Appellee has a valid cause of action at all) and has
changed its identification of the Appellant that allegedly received bribes and/or
excessive payments for advertising from El Diario to Editora, the Mexican entity
that it actually sued.
In its First Amended Petition, Appellee alleges that the State made illegal and
improper payments to Appellant Mr. Borunda “and his newspaper” El Diario de El
Paso. CR 340.
The alleged purpose for the payments was so that El Diario would write
flattering stories about the then governor, Mr. Duarte, and to report negatively about
Mr. Duarte’s adversaries. CR 340.
In response to the filing of Appellants’ Special Appearance and Rule 91a
Motion to Dismiss Baseless Causes of Action, Appellee filed its Second Amended
Petition.
In that Second Amended Petition, Appellee made the following allegations
against Appellants:
Further, Mr. Duarte sent tens (if not hundreds) of millions of
dollars to his confederate Defendant Osvaldo Rodriguez Borunda and
his newspaper El Diario de El Paso. The amounts paid to Mr. Borunda
and his newspaper were not authorized, not approved, and far exceed
any reasonable amount that should be paid to a newspaper and its owner
– even for an improper purpose. As such, these hyper-inflated amounts
1
were nothing more than bribes and a way to commit further graft
against the State of Chihuahua. More specifically, Mr. Duarte was
illegally and improperly sending state money to Mr. Borunda and El
Diario to report negatively on Mr. Duarte’s political adversaries and
positively about Mr. Duarte and his administration. Mr. Duarte was also
paying money to Mr. Borunda and El Diario for services that were
never rendered, overpaying for services that were rendered, and
outright bribing Mr. Borunda and El Diario at times. Such was and is
illegal. These monies belonged to the state and its people, but were
being used to bribe a newspaper and its owner. These monies were sent
to Mr. Borunda and his newspaper for illegal and improper purposes.
These money transfers were illegal and improper and part of a scheme
to defraud the people of Chihuahua for the benefit of Mr. Duarte.
Further, Mr. Borunda and the El Diario de El Paso knew that these
hundreds of millions of dollars were public funds and that they were
being misappropriated, but demanded them anyway. It has been widely
reported that more than 600 million pesos were paid to Mr. Borunda
and the El Diario de El Paso over five years – more than the government
spent on infrastructure over that time period. Indeed, once a new
governor was elected, Mr. Borunda and the El Diario de El Paso began
pressuring him for similar payoffs with the threat of bad and false
articles should he not comply their demands. [emphasis added]
CR 430-431.
Publicaciones E Impresos Paso Del Norte S. de R.L. de C.V. (El Diario de
Juarez) and Editora Paso Del Norte S.A. de C.V. are two entirely separate and
distinct corporate entities. See Exhibit 1 to the Appendix to Appellee’s Brief. Editora
is not mentioned at all in any factual allegations made by Appellee. All of
Appellee’s claims related to advertising and articles, which would have been
performed by El Diario de Juarez.
In Appellee’s Brief, at page 9, Appellee, for the first time, alleges that the
payments were made to Editora and not to El Diario, with no underlying pleading to
2
support the same.
Appellee, again, without any supporting pleading or jurisdictional evidence,
asserts that Editora is the advertising and real estate arm of Mr. Borunda’s business
without even identifying that business. That is incorrect.
Appellee continues to misidentify multiple separate entities into El Diario or
Editora in the Exhibits it has used in the trial court and in this appeal.
Michael Eddington, one of Appellee’s counsel, executed a Declaration which
states that Exhibit 3 of the Appendix to Appellee’s Brief was from Editora Paso Del
Norte’s website. CR 518-521. That is incorrect. A cursory review of Exhibit 3
would show that it is actually from Paso Del Norte Publishing, Inc. – a separate
Texas entity which happens to publish El Diario de El Paso and which derived zero
income from the advertising provided to Appellee in Mexico. Paso Del Norte
Publishing also did not write, print or publish any of the articles in Mexico about
which Appellee complains.
Mr. Eddington then declares that he has personal knowledge of the State of
Chihuahua bank records which are attached as Exhibit 4 to the Appendix to
Appellee’s Brief. CR 518-519, 524-558.
Allegedly, these are the payments made for the illegal advertising. However,
the bank records reflect payments to Publicaciones E Impresos Paso Del Norte S. de
R.L. de C.V. (El Diario de Juarez), a Mexican company which is not a party to this
3
lawsuit. Not a single payment is reflected as having been made to Editora.
Also attached to Appellee’s Brief as Exhibit 4 are invoices from Publicaciones
E Impresos Paso Del Norte S. de R.L. de C.V. to the State of Chihuahua. CR 524-
558. The invoices are not from either El Diario de El Paso or Editora.
Exhibit 5 of the Appendix to Appellee’s Brief is a 2016 interview with Mr.
Borunda wherein he talks about his newspaper, El Diario. CR 559-567. Editora is
not mentioned.
Exhibit 7 of the Appendix to Appellee’s Brief is similarly an interview where
Editora is not mentioned. CR 574-579.
4
ARGUMENT
Two requirements must be met before a Texas court can exercise personal
jurisdiction over a nonresident defendant. First, the Texas long-arm statute must
authorize the exercise of jurisdiction and second, the exercise of jurisdiction must
comport with federal due process. Am. Type Culture Collection, Inc. v. Coleman, 83
S.W.3d 801, 806 (Tex. 2002).
Pursuant to the long-arm statute, Texas can exercise personal jurisdiction over
a nonresident defendant that “does business” in Texas. Tex. Civ. Prac. & Rem. Code
Ann. §17.042; BMC Software Belgium, NV v. Marchand, 83 S.W.3d 789, 795 (Tex.
2002).
The statute lists three activities that constitute “doing business” in Texas:
a. Contracting with a Texas resident when either party is to perform
the contract in whole or in part in Texas;
b. Committing a tort in whole or in part in Texas; and
c. Recruiting Texas residents for employment inside or outside of
Texas.
Editora has done none of those things and Plaintiff has not proffered any
evidence to the contrary.
The “doing business” requirement is also limited by the requirements of
federal due process.
5
With respect to personal jurisdiction, federal due process requires two things.
First, the defendant must have purposely established such minimum contacts with
the forum state that the defendant could reasonably anticipate being sued there.
Burger King v. Rudzewicz, 471 U.S. 462, 475-476, 105 S. Ct. 2174, 2183-84, 85 L.
Ed. 2d 528 (1985). Second, if the nonresident defendant has purposefully established
minimum contacts, the exercise of personal jurisdiction must comport with
traditional notions of fair play and substantial justice. Burger King, 471 U.S. at 445-
46.
The minimum-contacts requirement protects due-process rights by permitting
a state to exercise jurisdiction over a nonresident defendant only when the defendant
"could reasonably anticipate being hauled into court there." Moncrief Oil Int'l Inc.
v. OAO Gazprom, 414 S.W.3d 142, 158 (Tex. 2013). Minimum contacts may create
either general or specific personal jurisdiction. Id. at 150. A court has general
jurisdiction over a nonresident defendant whose "affiliations with the State are so
'continuous and systematic' as to render [it] essentially at home in the forum State."
Daimler AG v. Bauman, 134 S. Ct. 746, 754, 187 L. Ed. 2d 624 (2014) (quoting
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S. Ct.
2846, 180 L. Ed. 2d 796 (2011)). This test requires "substantial activities within the
forum" and presents "a more demanding minimum contacts analysis than for specific
jurisdiction." BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 797 (Tex.
6
2002). When a court has general jurisdiction over a nonresident, it may exercise
jurisdiction "even if the cause of action did not arise from activities performed in the
forum state." Spir Star AG v. Kimich, 310 S.W.3d 868, 872 (Tex. 2010). Oswaldo
Rodriguez executed his Affidavit, a true and correct copy of which is attached the
Appendix filed concurrently herewith at Tab A, specifically CR 440-442, which
Affidavit makes it clear that Appellee has not met any of the jurisdictional
requirements as it applies to Editora. It is clear why. Appellee has sued the wrong
entity.
In recent years, based on the due process requirements, the U.S. Supreme
Court has limited general jurisdiction such that there is no general jurisdiction over
Editora in this case.
In the Daimler case, 134 S. Ct. 746 (2014), the Supreme Court held that a
company cannot be subjected to foreign jurisdiction because an affiliated (but
distinct) company would be subjected to jurisdiction, rejecting any argument that a
corporation may be agents of their affiliates, subsidiaries, parent companies, etc., for
jurisdiction purposes.
The Texas Supreme Court reached the same conclusion in Michiana East
Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005) explaining that only
the defendant’s own actions may constitute purposeful availment. A defendant may
not be hauled into a jurisdiction based solely on the unilateral activities of a third
7
party. Appellee has not plead any acts by Editora in either Mexico or Texas.
By contrast, courts may exercise specific jurisdiction when the defendant's
forum contacts are "isolated or sporadic," as opposed to "continuous and
systematic," but only if the plaintiff's cause of action arises from or relates to those
contacts. Id. at 872-73 (quoting 4 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1067.5 (3d ed. 2002)); see also Moncrief Oil, 414 S.W.3d
at 150 ("[S]pecific jurisdiction exists when the cause of action arises from or is
related to purposeful activities in the state."). For specific jurisdiction, we must
analyze the defendant's contacts "on a claim-by-claim basis" to determine whether
each claim arises out of or is related to the defendant's minimum contacts. Moncrief
Oil, 414 S.W.3d at 150. None of Editora’s activities took place in Texas.
In Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773(2017), the Supreme Court further limited jurisdiction. It limited a state courts ability
to assert personal jurisdiction to those activities or occurrences that take place in the
forum state and thus subject to the forum states regulation.
In Bristol-Myers Squibb, a group of plaintiffs, most of whom were not
California residents, sued Bristol-Myers Squibb (BMS) in California state court,
alleging that they were injured by BMS’s blood-thinning drug Plavix. The California
Superior Court held that California courts lacked general jurisdiction over BMS (a
Delaware Corporation headquartered in New York) but could assert specific
8
jurisdiction over all claims, even those claims brought by non-resident Plaintiffs who
did not purchase Plavix in California and were not injured in California.
On appeal, the United States Supreme Court reversed, holding that California
courts lacked specific jurisdiction over claims brought by the non-resident class
members. In other words, the Court held that the non-resident claims were not
sufficiently related to the following of BMS’s connections to California: (1) BMS’s
five research and laboratory facilities employing a total of 160 employees in
California; (2) its state-government advocacy office in Sacramento; and (3) its
employment of 250 sales representatives in California. The Court explained that
these activities were not specifically related to the non-resident plaintiffs’ Plavix
claims because BMS did not develop Plavix in California, did not create a marketing
strategy for Plavix in California, and did not manufacture, label, package, or work
on the regulatory approval of the product in California. All of these activities took
place in New York or New Jersey. The Court also found it insufficient that BMS
took $900 million from Plavix sales in the state, as none of the non-resident plaintiffs
alleged that they purchased Plavix in California.
Editora undertook no actions in Texas and, therefore, the state courts of Texas
have no jurisdiction over it.
Further, Appellee has not described any action that Mr. Rodriguez undertook
in Texas. All alleged unlawful activities took place in Mexico. The only possible
9
action against Mr. Rodriguez would be in rem claims for assets in Texas derived
from Appellee’s money assuming that Appellee’s money was actually paid to Mr.
Rodriguez and transferred to Mexico for which Appellee has provided zero
evidence.
Even when a nonresident has established minimum contacts with a state, due
process permits the state to assert jurisdiction over the nonresident only if doing so
comports with "traditional notions of fair play and substantial justice." Int’l Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945); Moncrief Oil, 414 S.W.3d at 154.
Typically, "[w]hen a nonresident defendant has purposefully availed itself of the
privilege of conducting business in a foreign jurisdiction, it is both fair and just to
subject that defendant to the authority of that forum's courts." Spir Star, 310 S.W.3d
at 872. Thus, "[i]f a nonresident has minimum contacts with the forum, rarely will
the exercise of jurisdiction over the nonresident not comport with traditional notions
of fair play and substantial justice." Moncrief Oil, 414 S.W.3d at 154-55.
The Texas courts consider several factors to evaluate the fairness and justness
of exercising jurisdiction over a nonresident defendant: (1) the burden on the
defendant; (2) the interests of the forum in adjudicating the dispute; (3) the plaintiff's
interest in obtaining convenient and effective relief; (4) the international judicial
system's interest in obtaining the most efficient resolution of controversies; and (5)
the shared interest of the several nations in furthering fundamental substantive social
10
policies. Id. at 155. When the defendant is a citizen of a foreign country, and not just
another state, we consider more specifically (6) "the unique burdens placed upon the
defendant who must defend itself in a foreign legal system;" (7) the state's regulatory
interests; and (8) "the procedural and substantive policies of other nations whose
interests are affected as well as the federal government's interest in its foreign
relations policies." Guardian Royal Exch. Assurance, Ltd. v. English China Clays,
P.L.C., 815 S.W.2d 223, 229 (Tex. 1991. "To defeat jurisdiction, [the defendant]
must present 'a compelling case that the presence of some consideration would
render jurisdiction unreasonable'" Spir Star, 310 S.W.3d at 878-79 (quoting
Guardian Royal, 815 S.W.2d at 231).
The state of Texas has no interest in the actions in Mexico complained of by
Appellee.
Fundamentally, "[a] state has an especial interest in exercising judicial
jurisdiction over those who commit torts within its territory," Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 776 (1984), and we have never conditioned that
interest on the plaintiff's status as a Texas "citizen," as opposed to a Texas "resident."
See, e.g., Moncrief Oil, 414 S.W.3d at 155 ("[T]he allegations that . . . Defendants
committed a tort in Texas against a resident implicate a serious state interest in
adjudicating the dispute."); Spir Star, 310 S.W.3d at 879 ("Texas has a significant
interest in exercising jurisdiction over controversies arising from injuries a Texas
11
resident sustains . . . ."); see also Asahi Metal Indus. Co. v. Superior Court of Cal.,
480 U.S. 102, 114, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987) ("Because the plaintiff
is not a California resident, California's legitimate interests in the dispute have
considerably diminished."). When a cause of action is not connected to Texas and
none of the parties are Texas residents, fairness becomes of paramount importance.
Michel v. Rocket Eng'g Corp., 45 S.W.3d 658, 683 (Tex. App.—Fort Worth 2001,
no pet.).
All of the actions complained of here took place in Mexico. All of the
witnesses are in Mexico and it is uncertain that they would be able to travel to Texas
to testify or would be willing to do so. All of the documents are in Spanish. It would
be unfair to all defendants to try this case anywhere but in Mexico, where every
complained of transaction took place.
Every article was printed and published in Mexico. Every invoice from
Publicaciones E Impresos Paso Del Norte S. de R.L. de C.V. was sent to Appellee
in Mexico. Every advertisement was in Mexico. Every payment was made in
Mexico.
Texas has absolutely no relationship to or interest in this litigation.
12
PRAYER
For the above reasons, Appellants respectfully request that this Court reverse
the Trial Court’s July 9, 2021 Order Overruling Defendants Osvaldo Rodriguez
Borunda and Editora Paso Del Norte, S.A. de C.V.’s Special Appearance Objecting
to Jurisdiction in all respects, award recoverable court costs to Appellants, and for
such other and further relief, both general and special, at law or in equity, to which
Appellants may be justly entitled.
/s/ Harrel L. Davis III
Harrel L. Davis III
State Bar No. 05567560
Gordon Davis Johnson & Shane, P.C.
4695 N. Mesa, Suite 100
El Paso, Texas 79912
(915) 545-1133
(915) 545-4433 Fax
hdavis@eplawyers.com
13
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitations of Tex. R. App. P.
9.4(i)(2)(C) because this brief contains 2,798 words, excluding the parts of the brief
exempted by Tex. R. App. P. 9.4(i)(1).
/s/ Harrel L. Davis III
Harrel L. Davis III
14
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was filed with
the Court via the EFile.TXCourts.gov system on November 2, 2021. All attorneys
identified with the Court for electronic service on record in this case were served by
electronic service in accordance with the EFile.TXCourts.gov system.
/s/ Harrel L. Davis III
Harrel L. Davis III
15
APPENDIX
Affidavit of Osvaldo Rodriguez Jimenez in Support of
Editora Paso Del Norte, S.A. de C.V.’s and Osvaldo Rodriguez
Borunda’s Special Appearance .....................................................................Tab A
16
TAB A
17
El Paso County - 448th District Court Filed 4/14/2021 9:03 AM
Norma Favela Barceleau
District Clerk
El Paso County
2020DCV0628
IN THE DISTRICT COURT OF EL PASO COUNTY, TEXAS
448TH JUDICIAL DISTRICT
FREE AND SOVEREIGN STATE OF §
CHIHUAHUA, §
§
Plaintiff, §
§
v. § CAUSE NO. 2020DCV0628
§
CESAR HORACIO DUARTE JAQUEZ, et al., §
§
Defendants. §
AFFIDAVIT OF OSVALDO RODRIGUEZ JIMENEZ
IN SUPPORT OF EDITORA PASO DEL NORTE, S.A. de C.V.'S and
OSVALDO RODRIGUEZ BORUNDA'S SPECIAL APPEARANCE
STATE OF TEXAS )
)
COUNTY OF EL PASO )
Before me, the undersigned authority, on this day personally appeared Osvaldo Rodriguez
Jimenez, known to me to be the person whose name is subscribed hereto, who stated under oath
as follows:
1. "My name is Osvaldo Rodriguez Jimenez. I am the duly authorized representative of
Editora Paso Del Norte, S.A. de C.V. ("Editora"), one of the Defendants in the above-
referenced and styled lawsuit. I have personal knowledge of the facts stated in this
affidavit, which are true and correct, and I am authorized in all respects to make this
affidavit and these statements. The statements made herein also apply to the Special
Appearance of Osvaldo Rodriguez Borunda ("Mr. Rodriguez"). I am over the age of
18 years and am fully competent to testify to the matters stated herein.
2. "The current governor of Plaintiff is Javier Corral Jurado. He became governor in
October 2016. Mr. Corral and Mr. Rodriguez, another one of the Defendants herein
and Editora's principal, have had a contentious relationship for a number of years and
El Diario de Juarez has published a number of unflattering, but truthful, articles about
Mr. Corral starting long before Mr. Corral became governor in October 2016.
3. "Because of those articles, Mr. Corral has, in Mexico, publicly made slanderous claims
about El Diario de Juarez and Mr. Rodriguez. El Diario de Juarez filed suit against Mr.
Corral in Mexico in February 2020 in order to try to stop those slanderous attacks. In
return, in March 2020, Mr. Corral filed a libel lawsuit against El Diario de Juarez, the
entity that prints and publishes the Juarez, Chihuahua, Mexico newspaper.
{1130.153/HDAV/06812335.1}
440
4. "Plaintiff, even after Mr. Corral became governor, continued to request that El Diario
de Juarez provide it with advertising services. It did so. However, when the above-
referenced conflicts started to arise, Plaintiff ceased paying for that advertising. That
refusal to pay for advertising that Plaintiff had requested caused El Diario de Juarez to
file a collection suit against the State of Chihuahua in Mexico in September, 2020.
5. "Mr. Corral then asked the State's attorney to add Editora and Mr. Rodriguez as
Defendants in this action. None of the complained of transactions as to these
Defendants took place in the United States, and none of the alleged funds were used to
purchase property in Texas.
6. "Editora is not a resident of Texas. Editora does not engage in any business in Texas
other than hold certain accounts and neither it or Mr. Rodriguez have committed any
tort, in whole or in part, within the State of Texas. Certainly, none of the acts
complained of by Plaintiff took place or would have taken place in Texas. Editora does
not maintain a place of business in Texas and has no employees, servants, or agents
within the State of Texas. Editora has no substantial connection with Texas arising
from any action or conduct of Editora purposefully directed towards Texas. Editora
does not own any real estate in Texas.
7. "Plaintiffs claims do not arise from and are not related to any activity allegedly
conducted by Editora or Mr. Rodriguez in Texas. It appears from the First Amended
Petition that Plaintiff is complaining that the prior governor provided funds for the
purpose of obtaining favorable articles. Neither Editora nor Mr. Rodriguez publish
newspapers, much less articles. No funds were ever paid directly to Editora or Mr.
Rodriguez by Plaintiff for the publishing of articles. The State of Chihuahua did
purchase advertising and legally required notices from El Diario de Juarez, but, again,
all of those transactions took place in Mexico.
8. "Editora has not had continuous or systematic contacts with the State of Texas.
Plaintiffs alleged cause of action against Editora and Mr. Rodriguez do not arise from
any contacts between Editora and Mr. Rodriguez and the State of Texas. Thus, Editora
and Mr. Rodriguez had no basis to reasonably anticipate being hauled into court in
Texas in regard to either the claims at issue or any other occurrence. The Court's
assumption of jurisdiction over Editora or Mr. Rodriguez would clearly offend
traditional notions of fair play and substantial justice denying Editora or Mr. Rodriguez
due process oflaw. Mr. Rodriguez is a Mexican citizen. Both he and Editora agree to
jurisdiction in Mexico."
{l 130.153/HDAV/06812335.1}
441
Affiant says nothing further.
SUBSCRIBED AND SWORN TO before e on this, the \ 3 day of
h