D's Response in Support of Motion to Dismiss

35230190

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

CASE NO. 015-cv-60581-WPD

BARBARA BRUNNER Plaintiff,

v.

TEXAS A&M UNIVERSITY 12TH MAN FOUNDATION a/k/a THE 12TH MAN FOUNDATION,

Defendant.

DEFENDANTS REPLY TO PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS AND MEMORANDUM OF LAW IN SUPPORT

Marty Steinberg (FBN 187293) [email protected] Rafael R. Ribeiro (FBN 896241) [email protected] BILZIN SUMBERG BAENA PRICE & AXELROD LLP 1450 Brickell Ave., 23rd Floor Miami, FL 33131

Layne E. Kruse (admitted pro hac vice) [email protected] Anne M. Rodgers (admitted pro hac vice) [email protected] Randall Richardson (admitted pro hac vice) [email protected] NORTON ROSE FULBRIGHT US LLP 1301 McKinney, Suite 5100 Houston, TX 77010-3095 Counsel for Defendant Texas A&M University 12th Man Foundation a/k/a The 12th Man Foundation

Dated: May 21, 2015

Case 0:15-cv-60581-WPD Document 33 Entered on FLSD Docket 05/21/2015 Page 1 of 16

TABLE OF CONTENTS

Page

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1. Plaintiff still fails to establish personal jurisdiction over the Foundation in Florida. ................................................................................................................... 1

A. Contacts of Texas A&M cannot be imputed to the Foundation. ............... 1

B. Plaintiff cannot prove that the Foundation is subject to personal jurisdiction in Florida under any provision of the long-arm statute. ......... 4

C. Plaintiff has not established specific jurisdiction over the Foundation. ................................................................................................ 7

2. Plaintiff still cannot prove that venue is proper in the Southern District of Florida. ................................................................................................................... 9

CERTIFICATE OF FILING AND SERVICE ............................................................................ 12


35230190 - ii -

TABLE OF AUTHORITIES

Page(s)

Cases

Aetna Life & Casualty Co. v. Therm-O-Disc, Inc., 511 So. 2d 992 (Fla. 1987).........................................................................................................7

Am. Univ. Sys., Inc. v. Am. Univ., 858 F. Supp. 2d 705 (N.D. Tex. 2012) ......................................................................................3

Citicorp Ins. Brokers (Marine) Ltd. v. J.R. Charman, 635 So. 2d 79 (Fla. 1st DCA 1994) ...........................................................................................5

Enic, PLC v. F.F.S. & Co., Inc., 870 So. 2d 888 (Fla. 5th DCA 2004) .........................................................................................1

Freeman v. Sharpe Res. Corp., No. 6:12-CV-1584-ORL-22T, 2013 WL 2151723 (M.D. Fla. May 16, 2013) .........................6

Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247 (11th Cir. 2000) .................................................................................................8

Hanson v. Denckla, 357 U.S. 235 (1958) ...................................................................................................................8

Hemispherx Biopharma, Inc. v. MidSouth Capital, Inc., 669 F. Supp. 2d 1353 (S.D. Fla. 2009) ......................................................................................9

Hotels of Key Largo, Inc. v. RHI Hotels, Inc., 694 So. 2d 74 (Fla. 3d DCA 1997) ............................................................................................6

i.e., Rhodes v. Unisys Corp., 170 F. App'x 681 (11th Cir. 2006) .............................................................................................8

Indian Harbor Ins. Co. v. Valley Forge Ins. Grp., 535 F.3d 359 (5th Cir. 2008) .....................................................................................................1

J.B. Oxford Holdings, Inc. v. Net Trade, Inc., 76 F. Supp. 2d 1363 (S.D. Fla. 1999) ....................................................................................4, 9

Jenkins Brick Co. v. Bremer, 321 F.3d 1366 (11th Cir. 2003) .................................................................................................9

Kaye v. Ingenio, Filiale De Loto-Quebec, Inc., No. 13-61687-CIV, 2014 WL 2215770 (S.D. Fla. May 29, 2014) ............................................6


35230190 - iii -

MeterLogic, Inc. v. Copier Solutions, Inc., 126 F. Supp. 2d 1346 (S.D. Fla. 2000) ......................................................................................1

Severinsen v. Widener Univ., 768 A.2d 200 (N.J. Ct. App. 2001) ............................................................................................3

Specialty Marine & Indus. Supplies, Inc. v. Venus, 66 So. 3d 306 (Fla. 1st DCA 2011) ...........................................................................................6

State v. Am. Tobacco Co., 707 So. 2d 851 (Fla. 4th DCA 1998) .........................................................................................1

Sun Bank, N.A. v. E.F. Hutton & Co., Inc., 926 F. 2d 1030 (11th Cir. 1991) ............................................................................................7, 8

Tr. of Columbia Univ. v. Ocean World, S.A., 12 So. 3d 788 (Fla. 4th DCA 2009) ...........................................................................................3

Virgilio v. Ryland Group, Inc., 680 F.3d 1329 (11th Cir. 2012) .................................................................................................1

Walden v. Fiore, 134 S. Ct. 1115 (2014) ...........................................................................................................7, 8

Wendt v. Horowitz, 822 So. 2d 1252 (Fla. 2002).......................................................................................................6

Rules and Statutes

28 U.S.C. 1391(b)(2) ..............................................................................................................9, 10

Fla. Stat. 48.193 ............................................................................................................................1

Fla. Stat. 48.193(1)(a)(1) ............................................................................................................4, 5

Fla. Stat. 48.193(1)(a)(2) ........................................................................................................5, 6, 7

Fla. Stat. 48.193(1)(a)(6) ............................................................................................................4, 7

Fla. Stat. 48.193(1)(a)(7) .............................................................................................................4

Tex. Govt Code 2255.001............................................................................................................2

Tex. S. Con. Res. 176, 69th Leg., R.S. 1985 Tex. Gen. Laws 3459 ................................................2


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1. Plaintiff still fails to establish personal jurisdiction over the Foundation in Florida.

A. Contacts of Texas A&M cannot be imputed to the Foundation.

Throughout her opposition, Plaintiff tries to prove agency jurisdiction over the

Foundation by imputing to it the alleged Florida contacts of Texas A&M. Under the Florida

long arm statute, personal jurisdiction may in certain circumstances be obtained over a principal

by attributing to it the contacts of its agent in a forum. Fla. Stat. 48.193. But Plaintiff here is

trying to do the opposite; she tries to demonstrate the exercise of personal jurisdiction over an

agent through the contacts of its alleged principal. Plaintiff does not cite a single case supporting

her reverse-imputation theory of personal jurisdiction.

Regardless, Plaintiff has not established the basic premisethat the Foundation is an

agent of Texas A&M. An agency relationship requires (1) acknowledgment by the principal

that the agent will act for it; (2) the agents acceptance of the undertaking; and (3) control by the

principal over the actions of the agent. MeterLogic, Inc. v. Copier Solutions, Inc., 126 F. Supp.

2d 1346, 1354 (S.D. Fla. 2000) (citations omitted). The issue of control is critical to the

determination of agency. State v. Am. Tobacco Co., 707 So. 2d 851, 854 (Fla. 4th DCA 1998).

This control must be high and very significant. Enic, PLC v. F.F.S. & Co., Inc., 870 So. 2d

888, 891 (Fla. 5th DCA 2004).1 Plaintiffs allegations to this end are mere conclusions, and she

alleges no facts from which the alleged agency could be inferred. See Virgilio v. Ryland Group,

Inc., 680 F.3d 1329, 1336 (11th Cir. 2012). Plaintiff has not alleged or provided evidence of any

agency relationship between the Foundation and A&M.

1 The agreements between Texas A&M and the Foundation are governed by Texas law. See, e.g., D.E. 32, Ex. C-6 at 4 (This Agreement shall be governed by the laws of the State of Texas.). Under Texas law, like Florida law, [i]t is the principal's extent of control over the details of accomplishing the assigned task that primarily distinguishes the status of independent contractor from that of agent. Indian Harbor Ins. Co. v. Valley Forge Ins. Grp., 535 F.3d 359, 364 (5th Cir. 2008) (citation omitted).


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Plaintiff cites to several agreements between Texas A&M and the Foundation as proof

that they have an agency relationship. D.E. 32 at 2 n.3, 16. Those agreements, however, prove

the converse. The agreements (attached as Exhibits C-2 and C-6 to Plaintiffs Response)

explicitly state that the two entities shall operate independently as required by Texas law.2

D.E. 32, Ex. C-2 at 1, C-6 at 1. The agreements set out rules governing the relationship between

A&M and the Foundation, including the requirement that the governing bodies of Texas A&M

and the Foundation exercise their independent judgment in the discharge of [their] fiduciary

duties to ensure that Texas A&M will not infring[e] or attempt to infring[e] upon the policy-

making or management rights and responsibilities of the Foundation. D.E. 32, Ex. C-2 at 1.

Those agreements most certainly do not establish that Texas A&M exercises control over the

Foundation.

Plaintiffs other allegations of an agency relationship are similarly based upon unfounded

speculation and factual inaccuracies. For example:

Plaintiff claims the Foundation is involved in merchandising operations because Plaintiffs counsel allegedly found six Texas A&M shirts located in Florida stores. D.E. 32 at 8. Plaintiff provides no evidence that the Foundation is the entity selling those shirts or is connected to those shirts in any way.3 Indeed, it is not. D.E. 30, Ex. A 7. The evidence proves that the Foundation is not. Exhibit A attached hereto, 5, 8, Second Declaration of Irven E. Skip Wagner.

2 Texas statutory law explicitly states that private, nonprofit organizations like the Foundation are independent from state agencies like Texas A&M. See Tex. Govt Code 2255.001 (enacted through S.B. 772, 68th Leg., R.S. (1983)). The Texas Legislature enacted section 2255.001 to foster its conviction that it was in the states best interest that private, nonprofit organizations [like the Foundation] maintain their independence as provided by law and various attorney general's rulings. Tex. S. Con. Res. 176, 69th Leg., R.S. 1985 Tex. Gen. Laws 3459 (attached hereto as Exhibit B). 3 Plaintiff also speculates that while Mr. Wagner is technically correct that the Foundation does not exploit Texas A&Ms 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 Texas A&M, collecting a service fee along the way . . . . D.E. 32 at 11-12. Again, Plaintiff provides no evidence to support her conjecture.


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Plaintiff incorrectly states that a click on the University Presidents letters cite to Aggieathletics.com is re-routed to the Foundations webpage. D.E. 32 at 10-11. This is false. The web address redirects to www.12thman.com, the website for the Texas A&M Athletics Department, not for the 12th Man Foundation. See also Ex. A 10, Second Wagner Declaration.

Plaintiff asserts that 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. D.E. 32 at 11. The evidence, as opposed to Plaintiffs speculation, proves that [t]he Foundation did not travel to Florida to Coordinate any events for the football game in 2012 between Texas A&M and the University of Florida in College Station, Texas. Ex. A 9, Second Wagner Declaration.

Plaintiff also points out that the Foundation uses the phrase 12th Man, a University trademark. D.E. 32 at 15. This no more makes the Foundation an agent of Texas A&M than it does the Seattle Seahawks, an NFL team that also uses the trademark. See http://www.seahawks.com/spirit-of-12/history-of-the-12s.

None of Plaintiffs bald allegations establish the Foundation as Texas A&Ms agent (let

alone the notion that Texas A&M is somehow an agent of the Foundation). Instead, the only

relevant facts before this Court are the uncontroverted declarations of Mr. Wagner that the

Foundation is not an agent of Texas A&M, does not engage in recruiting, merchandising, or

marketing in Florida, and is not a member of the SEC. D.E. 30-1, 4-9; see also Ex. A 4,

Second Wagner Declaration.

Plaintiff also has not demonstrated that Florida has personal jurisdiction over the

Foundations purported principal, Texas A&M. Federal and state courts in the United States

have unanimously determined that [an institution of higher education] is not subject to general

personal jurisdiction where its only contacts with the forum state are its involvement in activities

that are typical of a nationally prominent university. Am. Univ. Sys., Inc. v. Am. Univ., 858 F.

Supp. 2d 705, 713-14 (N.D. Tex. 2012); see also Tr. of Columbia Univ. v. Ocean World, S.A., 12

So. 3d 788, 794 (Fla. 4th DCA 2009); Severinsen v. Widener Univ., 768 A.2d 200, 206 (N.J. Ct.

App. 2001) (traditional university recruitment activities, like sending recruiters into the state,


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attending college fairs, advertising in local newspapers and mailing to local residents, conducting

sporting events and recruiting athletes, all fail to confer general jurisdiction under traditional

notions of fair play).

B. Plaintiff cannot prove that the Foundation is subject to personal jurisdiction in Florida under any provision of the long-arm statute.

Plaintiff alleged only 48.193(1)(a)(7) of the Florida long-arm statute in her Complaint.

D.E. 31 46. In response to the Foundations showing that she had not met her burden under

that section, Plaintiff now asserts three additional provisions, 48.193(1)(a)(1), (2), and (6). See

D.E. 32 at 10-11. Her new efforts are equally unavailing.

(1) Section 48.193(1)(a)(7) of the Florida long-arm statute does not apply.

Plaintiffs does not refute a single argument or fact the Foundation proffered in

demonstrating that Section 48.193(1)(a)(7) does not apply because Texas is the only location

where the Foundation is required to tender performance under her endowment agreement. See

D.E. 30 at 6-7. Instead, she argues that the endowment agreement was breached in Florida

because she says may someday be required to make additional payments to attend a speculative

Aggie/Gator away game in Florida.4 D.E. 32 at 14-15. Aside from the fact that this football

game is not mentioned in her Complaint, future events in Florida cannot be used to establish

personal jurisdiction. See J.B. Oxford Holdings, Inc. v. Net Trade, Inc., 76 F. Supp. 2d 1363,

1367 n.8 (S.D. Fla. 1999). Plaintiff has failed to provide any evidence that the Foundation had a

duty to perform, let alone that the contract was breached, in Florida.

4 Texas A&M and the University of Florida have not played a football game in the state of Florida since 1962, over 20 years before Plaintiff entered into the disputed agreement. And despite being in the SEC, Texas A&M and Florida are in different divisions and are currently not scheduled to play each other again until 2017. Ex. A 11, Second Wagner Declaration.


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Section 48.193(1)(a)(1) of Floridas long-arm statute requires the cause of action to arise

from a business activity in Florida. 48.193(1)(a)(1). The phrase arising from requires a

direct affiliation, nexus, or substantial connection to exist between the basis for the cause of

action and the business activity. Citicorp Ins. Brokers (Marine) Ltd. v. J.R. Charman, 635 So.

2d 79, 82 (Fla. 1st DCA 1994). The Foundation does not operate, conduct, engage in, or carry

on a business or business venture in Florida. D.E. 30-1, 5. Its entire business operation is

based in and conducted out of College Station, Texas. Id. 4. That is not a legal conclusionit

is a fact, and one that bars any argument that the Foundation is subject to 48.193(1)(a)(1).

Additionally, under 48.193(1)(a)(1), a defendants business activity in Florida must

have a substantial connection to the plaintiffs causes of action. See Citicorp, 635 So. 2d at 82.

Here, none of Plaintiffs unsubstantiated allegations of the Foundations alleged activities in

Florida relates to her causes of action. Her causes of action do not have any connection to the

Foundations alleged involvement with the SEC, D.E. 32 at 7-8; its alleged financial support for

recruiting trips and promoting athletic programs, id. at 8; or soliciting or selling goods or

services in Florida, D.E. 30, Ex. A 5-9.5 Because Plaintiff has not demonstrated that any of

her causes of action arise from business activities of the Foundation in Florida,

Section 48.193(1)(a)(1) does not apply.


Plaintiff claims jurisdiction exists under Section 48.193(1)(a)(2) of the Florida long-arm

statute because the Foundation allegedly misrepresented her rights under the Endowment

Agreement through a phone call and corresponding e-mails with Plaintiff when Plaintiff was in 5 The uncontroverted evidence, moreover, refutes each of those allegations. See Ex. A 5-8, Second Wagner Declaration.


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Florida D.E. 32 at 12. Although . . . telephonic, electronic, or written communications into

Florida may form the basis for personal jurisdiction under [ 48.193(1)(a)(2)] if the alleged cause

of action arises from the communications . . . . The threshold question that must be determined is

whether the allegations of the complaint state a cause of action. Wendt v. Horowitz, 822 So. 2d

1252, 1260 (Fla. 2002).

To state a claim for misrepresentation, a plaintiff must allege (1) the content of the

allegedly false statement; (2) knowledge that the representation was false; (3) intent to induce

Plaintiff to act on it; or (4) detrimental reliance. Specialty Marine & Indus. Supplies, Inc. v.

Venus, 66 So. 3d 306, 310 (Fla. 1st DCA 2011). Plaintiff fails to allege any of those four

required elements. For that reason alone, Plaintiff has not established jurisdiction under Section

48.193(1)(a)(2).

Additionally, Plaintiff cannot plead a tort for misrepresentations . . . about her rights

under a contract. D.E. 32 at 12, 17. Misrepresentations relating to the breaching party's

performance of a contract do not give rise to an independent cause of action in tort, because such

misrepresentations are interwoven and indistinct from the heart of the contractual agreement.

Hotels of Key Largo, Inc. v. RHI Hotels, Inc., 694 So. 2d 74, 78 (Fla. 3d DCA 1997).6

Thus, even accepting all of the allegations of plaintiffs' complaint as true, the allegations

are legally insufficient to state a cause of action for misrepresentation. Because Plaintiff fails to

6 See also Kaye v. Ingenio, Filiale De Loto-Quebec, Inc., No. 13-61687-CIV, 2014 WL 2215770, at *4 (S.D. Fla. May 29, 2014) ([T]o set forth a claim in tort between parties in contractual privity, a party must allege action beyond and independent of breach of contract that amounts to an independent tort. (citation omitted); Freeman v. Sharpe Res. Corp., No. 6:12-CV-1584-ORL-22T, 2013 WL 2151723, at *8 (M.D. Fla. May 16, 2013) (Fundamental contractual principles continue to bar a tort claim where the offending party has committed no breach of duty independent of a breach of its contractual obligations.).


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allege an actionable tort distinct from an alleged breach of contract, section 48.193(1)(a)(2)

provides no basis for jurisdiction.


Section 48.193(1)(a)(6) does not apply because Plaintiff does not allege personal injury

or property damage. Sun Bank, N.A. v. E.F. Hutton & Co., Inc., 926 F. 2d 1030, 1033 (11th Cir.

1991); Aetna Life & Casualty Co. v. Therm-O-Disc, Inc., 511 So. 2d 992, 994 (Fla. 1987). She

has alleged only economic loss, not harm to her physical person or any sort of damage to

property in Florida. Accordingly, Plaintiffs reliance on 48.193(1)(a)(6) is unavailing.

C. Plaintiff has not established specific jurisdiction over the Foundation.

Plaintiff has also failed to establish specific jurisdiction. Plaintiff admits that the

Foundation has never directed correspondence to her via a Florida address. D.E. 32, Ex. B 3.

She does not dispute that her actions in Florida and her residing in Florida when the Foundation

announced the redevelopment and reseating of Kyle Field are plaintiff-created contacts that do

not create specific jurisdiction over the Foundation. Rather, she argues only that the Foundation

(1) directed communications to her in Florida including emails and phone calls in which it

misrepresented her rights under the Endowment Agreement, and (2) will further breach its

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

Gators held in Florida. D.E. 32 at 17.

But as the Foundation has shown, the alleged communications with Plaintiff in Florida

are insufficient because the only relevant contacts are those contacts that the defendant himself

creates with the forum State. Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014). [I]t is essential

in each case that there be some act by which the defendant purposefully avails itself of the


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privilege of conducting activities within the forum State, thus invoking the benefits and

protections of its laws. Hanson v. Denckla, 357 U.S. 235, 253 (1958).

In fact, Plaintiff has failed to provide any evidence that the Foundation even knew she

was in Florida when it responded to her communications. The address the Foundation has on file

for Plaintiff is in Boerne, Texas, where it sends all correspondence. D.E. 32, Ex. B 3.

Plaintiffs telephone conversation with the Foundation was made from her cell phone, which has

a 301 area code, the area code for western Maryland. See D.E. 32, Ex. B-2. Otherwise, the only

phone number the Foundation has on file for her has a 281 area code, which is for the Houston,

Texas area. See Exhibit C attached hereto. Plaintiffs e-mail address provides no indication of

her location, nor did she indicate in her e-mails to the Foundation that she was in Florida. See

D.E. 32, Ex. B-2. Even then, the Foundation was simply responding to her calls and e-mails; her

chosen location is no more than a fortuitous contact. See id.; Sun Bank, 926 F.2d at 1034

(finding no personal jurisdiction based on alleged misrepresentations made in phone calls to

Plaintiff in Florida, when the only reason those calls were to Florida was because Plaintiff chose

to move there).

Communicating with the Foundation from Florida is precisely the sort of unilateral

activity . . . that cannot satisfy the requirement of contact with the forum State. Walden, 134 S.

Ct. at 1125 (citation omitted). In fact, even if the Foundation had directed its communications

expressly at Florida, such limited telephone and email contacts are insufficient for personal

jurisdiction. See, i.e., Rhodes v. Unisys Corp., 170 F. App'x 681, 685 (11th Cir. 2006) (A single

email contact with a forum . . .will not provide a basis for personal jurisdiction.); Future Tech.

Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1251 (11th Cir. 2000) (finding no personal


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jurisdiction in breach of contract case based on phone call discussing contract terms with

plaintiff in Florida).

The alleged anticipated breach by not providing tickets to a potential future football game

between Texas A&M and the University of Florida is also insufficient. Again, potential future

events cannot be used to establish personal jurisdiction. J.B. Oxford Holdings, 76 F. Supp. 2d at

1367 n.8. Plaintiff has pled no valid basis for specific jurisdiction over the Foundation.

2. Plaintiff still cannot prove that venue is proper in the Southern District of Florida.

Plaintiff also has not established that venue is proper in the Southern District of Florida.

Plaintiff relies on 28 U.S.C. 1391(b)(2), which requires that a substantial part of the events or

omissions giving rise to the claim occurred in Florida. The only two bases for venue alleged by

Plaintiff are the same as for specific jurisdiction: (1) false communications of the Foundation

about Ms. Brunners rights under the Endowment Agreement were delivered to her in Florida,

and (2) 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. D.E. 32 at 18-19. Neither is sufficient.

As with personal jurisdiction, proper venue focuses on the actions of the defendant, not of

the plaintiff. Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371-72 (11th Cir. 2003). Thus, for

the same reasons that it does not establish personal jurisdiction over the Foundation, the fact that

Plaintiff may have been in Florida when reviewing communications from or communicating with

the Foundation is not enough to establish venue. See Hemispherx Biopharma, Inc. v. MidSouth

Capital, Inc., 669 F. Supp. 2d 1353, 1357-59 (S.D. Fla. 2009) (rejecting a number of arguments

for venue in the Southern District of Florida, including 108 phone calls from Defendant to


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Plaintiff's Philadelphia cell phone number, most of which reached Plaintiff while he was in South

Florida, because they focused on actions and locations of the plaintiff, not the defendant).

The other alleged basis, that a future football game may occur between the University of

Florida and Texas A&M in Gainesville, Florida, also does not support venue in the Southern

District of Florida. In addition to the fact that this game has not yet occurred in Florida,

28 U.S.C. 1391(b)(2), Gainesville, where the University of Florida plays its football games, is

in the Northern District of Florida, not the Southern District. For these reasons, venue in the

Southern District of Florida cannot be sustained.


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Dated this 21st day of May, 2015.

Respectfully submitted,

__/s/ Marty Steinberg___________________ Marty Steinberg (FBN 187293) [email protected] Rafael R. Ribeiro (FBN 896241) [email protected] BILZIN SUMBERG BAENA PRICE & AXELROD LLP 1450 Brickell Ave. 23rd Floor Miami, FL 33131 Telephone: (305) 350-7312 Facsimile: (305) 351-2132 and Layne E. Kruse [email protected] Anne M. Rodgers [email protected] Randall Richardson [email protected] NORTON ROSE FULBRIGHT US LLP 1301 McKinney, Suite 5100 Houston, TX 77010-3095 Telephone: (713) 651-5194 Fax: (713) 651-5246 Counsel for Defendant Texas A&M University 12th Man Foundation a/k/a The 12th Man Foundation


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CERTIFICATE OF FILING AND SERVICE

I hereby certify that a true and correct copy of the foregoing was served by electronic

filing using the CM/ECF filing system on May 21, 2015, on all counsel or parties of record on

the Service List below.

/s/ Marty Steinberg Marty Steinberg

SERVICE LIST

Peter Prieto Debra Brewer Hayes John Gravante III Charles Clinton Hunter PODHURST ORSECK, P.A. PC THE HAYES LAW FIRM, 25 West Flagler Street, Suite 800 700 Rockmead Drive, Suite 210 Miami, Florida 33130 Houston, Texas 77339-2111 Tel: (305) 358-2800 Telephone: (281) 815-4963 [email protected] Fax: (832) 575-4759 [email protected] [email protected] [email protected] Counsel for Plaintiff Counsel for Plaintiff


D's Response in Support of Motion to Dismiss

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