Preview
FILED
12/13/2023 8:04 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Debra Clark DEPUTY
CAUSE NO. DC-23-03798
LORI MARTINEZ, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § DALLAS COUNTY, TEXAS
§
AIRBNB, INC. and LYDIA MILLER, §
§
Defendants. 134th JUDICIAL DISTRICT
§
§
DEFENDANT AIRBNB INC.’S REPLY IN SUPPORT OF SPECIAL
APPEARANCE TO PRESENT MOTION OBJECTING TO JURISDICTION
TO THE HONORABLE JUDGE OF SAID COURT:
Pursuant to Texas Rule of Civil Procedure 120a, Defendant Airbnb, Inc. (“Airbnb”),
through undersigned counsel, hereby submits this reply in support of its Special Appearance to
Plaintiff Lori Martinez’s claims to object to the Court exercising personal jurisdiction over
Airbnb.
INTRODUCTION
Plaintiff has failed to demonstrate—as she must—that the global online marketplace,
Airbnb, is subject to general or specific personal jurisdiction in Texas. Instead, in an apparent
attempt to muddy the waters, Plaintiff presents the Court with an inapplicable (and
mischaracterized) statute, irrelevant allegations regarding a distinct legal entity not party to this
case, and information regarding Airbnb’s business that have nothing to do with Plaintiff’s
personal injury claims. The Court should reject Plaintiff’s opposition and dismiss Airbnb for
lack of personal jurisdiction for multiple reasons. First, Plaintiff's assertion that Airbnb is
subject to general jurisdiction in Texas is unavailing because (i) her allegations regarding Airbnb
Payments, Inc. are irrelevant since it is not a party to this case and there is no colorable basis to
find it is “fused” with Airbnb, Inc. as Plaintiff baldly suggests; (ii) the money services statute
upon which she relies is inapplicable and does not confer general jurisdiction in any event; and
(iii) her allegations regarding Airbnb’s business activities do not suggest Airbnb is “essentially at
home” in Texas. Second, Plaintiff fails to establish that there is specific personal jurisdiction
over Airbnb for these claims because (i) Airbnb’s alleged contacts with Texas do not amount to
minimum contacts sufficient to authorize personal jurisdiction; (ii) Plaintiff's claims do not arise
out of the contacts Plaintiff alleges Airbnb has with Texas; and (iii) exercising personal
jurisdiction over Airbnb would not be fair and reasonable such that it comports with due process.
Thus, this Court should dismiss Plaintiff's petition against Airbnb for lack of personal
jurisdiction pursuant to TEX. R. CIV. P. 120a and TEX. CIV. PRAC. & REM. CODE 17.041 et seq.
EVIDENCE IN SUPPORT OF SPECIAL APPEARANCE
Airbnb incorporates by reference hereto all evidence submitted in support of its Special
Appearance filed July 14, 2023.
Airbnb objects to the use of the fourteen exhibits submitted by Plaintiff in support of her
opposition to Airbnb’s Special Appearance. Affidavits offered in a special appearance “shall be
made on personal knowledge [and] shall set forth specific facts as would be admissible in
evidence.” TEX. R. CIV. P. 120a(3); Ennis v. Loiseau, 164 S.W.3d 698, 703 (Tex. App.—Austin
2005, no pet.). The affidavit supplied by Plaintiff’s attorney merely attests to the fact that he
conducted internet research and fails to establish the admissibility of any of the exhibits upon
which Plaintiff relies. Before a court may admit a document, the party offering it must show it is
(1) authentic and (2) not hearsay. See TEX. R. CIV. EVID. 901(a); Martinez v. Tuesday Morning,
Inc., 1997 Tex. App. LEXIS 5465, at *3 (Tex. App.—Dallas Oct. 21, 1997, no pet.). Plaintiff
has failed to meet either requirement. She therefore cannot rely on her exhibits to establish the
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truth of the alleged jurisdictional facts they contain. Parex Res., Inc. v. ERG Res., LLC, 427
S.W.3d 407, 419 (Tex. App.—Houston [14th Dist.] 2014), aff’d, 496 S.W.3d 58 (Tex. 2016)
(refusing to consider evidence not admitted and stating that the burden of proving admissibility
rests on proponent of evidence).
For example, Plaintiff’s Exhibit A-2 appears to come from the blog of an unidentified
author and contains only the statements of others. Plaintiff has provided no sponsoring witness
or other method of authenticating this document and does not even suggest that the document
contains sufficient indicia of reliability to justify its consideration despite the hearsay it contains.
Additionally, Plaintiff’s Exhibits A-9, 10, 12, and 13 are uncertified copies of public records, and
are therefore not authenticated and are hearsay. TEX. R. CIV. EVID. 902(4); 803. Plaintiff’s
exhibits are also not appropriate subjects for judicial notice, as the facts they contain cannot “be
accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” TEX. R. CIV. EVID. 201(b)(2). Accordingly, this Court should not consider
Plaintiff’s exhibits and should grant Airbnb’s Special Appearance. See Miles v. Barton, 2017
Tex. App. LEXIS 1564, at *19 (Tex. App.—Houston [1st Dist.] Feb. 23, 2017, no pet.)
(disregarding plaintiff’s conclusory affidavit and affirming grant of special appearance when no
admissible jurisdictional evidence was provided).
As explained below, even if this Court were to consider Plaintiff’s exhibits, she has failed
to allege sufficient jurisdictional facts to justify the exercise of personal jurisdiction over Airbnb
here. Airbnb therefore addresses the arguments and evidence raised by Plaintiff without intent to
waive any objection to admissibility.
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ARGUMENT
1. Plaintiff Fails to Establish that the Court Has General Personal Jurisdiction Over
Airbnb.
None of Plaintiff’s theories for why Airbnb should be subject to general personal
jurisdiction in Texas comport with Texas law or are tethered to the facts of this case. First,
Plaintiff alleges that Airbnb is “fused” with a separate entity—Airbnb Payments, Inc.
(“Payments”)—for the purpose of the jurisdictional analysis. This argument fails, as Plaintiff’s
allegations do not satisfy the test for jurisdictional veil piercing under Texas law. Second,
Plaintiff alleges that Airbnb consented to general personal jurisdiction when it engaged in
activities which she contends are regulated by Chapter 152 of the Texas Finance Code. This
argument, too, fails, as the statute is inapplicable to this case and only permits the exercise of
jurisdiction for specific claims not at issue here. Third, Plaintiff’s generic argument that
Airbnb’s contacts with Texas are so continuous and systematic as to render Airbnb at home in
the forum fails under established Texas precedent. Plaintiff has therefore failed to meet her
burden of establishing that Airbnb is subject to general personal jurisdiction in Texas.
a. Plaintiff’s Allegations Concerning Payments Are Irrelevant, Because
Plaintiff Has Not Demonstrated that Payments and Inc. Are “Fused”.
Plaintiff’s allegations relating to a non-party distinct legal entity, Payments, are entirely
irrelevant to this Court’s analysis of whether Airbnb is subject to personal jurisdiction. While
Plaintiff suggests that Payments’ business activities should be imputed to Airbnb, because
Airbnb and Payments are “fused,” Plaintiff provides no factual or legal basis to support this
position.
Texas law “presumes that two separate corporations are distinct entities,” and therefore
requires that “the party seeking to ascribe one corporation’s actions to another by disregarding
their distinct corporate entities prove this allegation.” PHC-Minden, L.P. v. Kimberly-Clark
Corp., 235 S.W. 3d 163, 173 (Tex. 2007). Plaintiff therefore has the burden of proving that
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Airbnb “controls the internal business operations and affairs” of Payments. See BMC Software
Belg., N.V. v. Marchand, 83 S.W. 3d 789, 799 (Tex. 2002). “But the degree of control . . . must
be greater than that normally associated with common ownership and directorship; the evidence
must show that the two entities cease to be separate so that the corporate fiction should be
disregarded to prevent fraud or injustice.” Id. (citations omitted). Plaintiff has failed to meet this
burden, and no evidence suggests that the conduct of these two separate entities should be
attributed to the other.
Plaintiff has alleged only that Payments and Airbnb share a corporate address, registered
agent for service in California, and corporate employees. However, it is well-settled that “[a]
subsidiary corporation will not be regarded as the alter ego of its parent merely because of stock
ownership, a duplication of some or all of the directors or officers, or an exercise of the control
that stock ownership gives to stockholders.” PHC-Minden, L.P., 235 S.W. 3d at 175. There is
no suggestion that the relationship between Airbnb and Payments goes “beyond the subsidiary’s
mere presence within the bosom of the corporate family.” Id. at 176 (citing, inter alia, De
Castro v. Sanifill, Inc., 198 F. 3d 282, 283-84 (1st Cir. 1999) (“requiring ‘strong and robust’
evidence of parental control over subsidiary, such that subsidiary is ‘mere shell,’ before
subsidiary’s contacts could be imputed to parent”)). Accordingly, Plaintiff’s allegations
regarding Payments must be disregarded.
b. Chapter 152 of the Texas Finance Code Does Not Confer Personal
Jurisdiction in This Case
Plaintiff’s reliance on Chapter 152 of the Texas Finance Code (the “Act”) as a basis for
general jurisdiction is wholly misplaced. As an initial matter, the Act does not apply to this suit:
it was enacted after Plaintiff’s alleged injury and did not become effective until September 1,
2023, almost six months after this suit was filed. “A statute is presumed to be prospective in its
operation unless expressly made retrospective.” TEX. GOV’T CODE ANN. § 311.022; see also In
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re M.C.C., 187 S.W. 3d 383, 384 (Tex. 2006). The Act does not indicate that it should apply
retrospectively. Rather, it clearly states that it “takes effect September 1, 2023,” demonstrating
the legislative intent that it apply only prospectively. 2023 Tex. SB 895 § 5.01; see Houston
Indep. Sch. Dist. v. Houston Chronicle Publ’g Co., 798 S.W. 2d 580, 587 (Tex. App.—Houston
[1st Dist.] 1990, writ denied) (“[I]if the legislature believed the provision could be applied
retroactively, there would be no reason to make it effective immediately.”). Therefore,
Plaintiff’s arguments relating to the Act must be disregarded.
But even if the Court were to apply the Act, it would not confer personal jurisdiction over
Airbnb. Contrary to Plaintiff’s mischaracterization, Section 152.060 does not confer general
jurisdiction. Instead, it states that persons subject to the Act are “considered to have consented to
the jurisdiction of the courts of this state for all actions arising under this chapter.” TEX. FIN.
CODE § 152.060 (emphasis added). By its plain language, the Act evidences only consent to
jurisdiction for specific claims (those brought under its provisions), not consent to general
jurisdiction for all claims. The Act permits actions to enforce the rules promulgated therein,
which consist of requirements with which providers of money services must comply. These
requirements include licensing, record-keeping, reporting, and standards for issuing refunds and
receipts. TEX. FIN. CODE § 152.101-356. The Act does not provide for a private right of action,
instead vesting all enforcement in the Texas banking commission, the state attorney general, and
state prosecutors. Id. § 152.401. These persons may bring an action to enjoin a violation, revoke
or suspend a license or delegate, issue a cease-and-desist order, or prosecute intentional false
statements or intentional failure to maintain a license. Id. at §§ 152.401-410. Plaintiff does not
bring any such claim, nor could she. The consent to personal jurisdiction provided in Section
152.060 does not encompass Plaintiff’s personal injury claims, and therefore cannot be a basis
for exercising personal jurisdiction over Airbnb here.
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In summary, the Act does not provide for general jurisdiction and Plaintiff’s claims do
not fall within the jurisdiction it does confer. Therefore, even if the Act applied and Airbnb had
performed activities regulated thereunder, it would not confer personal jurisdiction over Airbnb
in this case. This Court should therefore disregard Plaintiff’s allegations related to the Act
because they are not relevant to the jurisdictional inquiry here.
a. Airbnb’s Contacts with Texas Are Not Continuous and Systematic So as to
Confer General Jurisdiction over Airbnb
Finally, as a last-ditch effort, Plaintiff incorrectly suggests that Airbnb’s contacts with
Texas are sufficiently continuous and systematic that Airbnb should be subject to general
jurisdiction. This is contrary to established precedent. As a Delaware corporation with its
principal place of business in California, Airbnb is not “at home” in Texas and therefore should
not be subject to general personal jurisdiction. Bibbs v. Molson Coors Bev. Co., 616 F. Supp. 3d
606, 612 (N.D. Tex. 2022) (“[T]he paradigm forum[s] where [a corporation] is essentially at
home are the corporation’s place of incorporation and its principal place of business.” (citations
omitted)). Only in the “exceptional case” may general jurisdiction be asserted over a corporation
in a different forum, and “only if its ‘operations . . . [are] so substantial and of such a nature as to
render the corporation at home in that state.” Id. “Proving such an exceptional case is
‘incredibly difficult,’” and Plaintiff has not done so here. See id. (concluding no general
jurisdiction over foreign defendant “despite maintaining the ‘the largest—and longest-operating
—brewery in the Dallas-Fort Worth metro area.’”).
Plaintiff’s piecemeal allegations do not prove otherwise. Plaintiff alleges that Airbnb has
“implicitly consented to jurisdiction in this forum” because it collects fees from Texans and their
guests, and it has two registered lobbyists in Texas. These alleged contacts do not satisfy the
demanding requirement of being “continuous and systematic” and therefore cannot support an
exercise of general jurisdiction. See Am. Type Culture Collection v. Coleman, 83 S.W. 3d 801,
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807 (Tex. 2002) (finding no general personal jurisdiction where foreign defendant, over 18-year
period, sold goods and provided storage services to Texas residents, entered into contracts with
Texas residents and the University of Texas Southwestern Medical Center, purchased supplies
from Texas vendors, and attended conferences in Texas).
Because “[j]urisdiction is premised on notions of implied consent,” courts also give
weight to a defendant’s decisions not to be present in the forum. Michiana Easy Livin’ Country,
Inc. v. Holten, 168 S.W. 3d 777, 785 (Tex. 2005). In Am. Type Culture Collection, the Court
concluded that general jurisdiction did not exist and credited the fact that the foreign defendant
“ha[d] no physical presence in Texas, perform[ed] all its business services outside Texas, and
carefully construct[ed] its contracts to ensure it does not benefit from Texas laws.” 83 S.W. 3d
at 807; see also CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996) (giving weight to lack of
presence in forum in concluding no general jurisdiction). Airbnb has not made itself at home in
Texas. As a Delaware corporation headquartered in California, it has no property, office,
facility, or place of business in Texas, no Texas address or telephone listing, is not registered to
do business in Texas, and has no agent for service of process in Texas. See Chauvet Decl. ¶ 2.
Additionally, the contract between Airbnb and its users (the Terms of Service) includes forum
selection and choice of law clauses mandating that all suits be brought in California and under
California law. See Chauvet Decl., Ex. A § 22. Airbnb is a foreign corporation which operates a
globally accessible online marketplace. Plaintiff’s allegations do not change that reality and are
insufficient to render Airbnb “at home” in Texas. Airbnb is therefore not subject to general
jurisdiction in Texas.
2. Plaintiff Has Failed to Demonstrate that Specific Personal Jurisdiction Exists.
To establish specific personal jurisdiction in Texas, the Court must consider: “(1)
whether the defendant has minimum contacts with the forum state; (2) whether the plaintiff's
cause of action arises out of or relates to the defendant’s forum-related contacts; and, (3) whether
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the exercise of personal jurisdiction is fair and reasonable.” Bibbs, 616 F. Supp. 3d at 613.
Airbnb does not have minimum contacts with Texas because it has not purposefully directed any
contact to the state, and Plaintiff’s allegations do not demonstrate otherwise. Furthermore,
Plaintiff’s claims do not arise out of the contacts she alleges Airbnb has with Texas. Finally, the
exercise of personal jurisdiction here, over a foreign corporation which merely operates a
globally accessible online marketplace, would not be fair and reasonable. Thus, Airbnb is not
subject to specific personal jurisdiction in Texas.
a. Airbnb Did Not Purposefully Direct Any Contact to Texas.
Plaintiff’s allegations fall short of establishing that Airbnb has “minimum contacts” with
Texas sufficient to confer specific jurisdiction. Plaintiff must prove that Airbnb “purposefully
availed itself of the privilege of conducting activities” in Texas “such that [it] should reasonably
anticipate being haled into court” here. Carmona v. Leo Ship Mgmt., 924 F. 3d 190, 193 (5th
Cir. 2019). Plaintiff’s additional allegations and exhibits do not demonstrate that Airbnb has
done so. For this reason, Airbnb is not subject to specific jurisdiction in Texas.
To establish that Airbnb purposefully directed its conduct at Texas, Plaintiff must prove
that Airbnb “reach[ed] out beyond one state and create[d] continuing relationships and
obligations with citizens of another state.” Moki Mac River Expeditions v. Drugg, 221 S.W. 3d
569, 578 (Tex. 2007). These contacts cannot result from “the mere fortuity” that those citizens
reside in Texas. Id. Airbnb, as the operator of a globally accessible website, does not “reach
out” to Texas to contact users, nor does it have control over the location of properties listed,
where guests choose to stay, where users reside, or from where they access the website or issue
payments. As the Supreme Court has explained, “unilateral activity of another party or a third
person is not an appropriate consideration when determining whether a defendant has sufficient
contacts with a forum State to justify an assertion of jurisdiction.” Helicopteros Nacionales De
Colombia v. Hall, 466 U.S. 408, 416-17 (1984). Plaintiff’s allegations reflect only that some
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Airbnb users access the website from Texas or choose to list or stay at properties in Texas, and
that Airbnb provides information and services and collects payment in connection with those
users’ decisions. Viewed in contrast with the allegations in the case upon which Plaintiff most
heavily relies—Bibbs—it is clear that Plaintiff’s allegations cannot amount to purposeful
direction. 616 F. Supp. 3d at 613-14 (finding purposeful direction because defendant 1)
maintained a large brewery in Texas, 2) advertised and sold its product in Texas, 3) employed at
least 420 individuals in Texas, 4) and contracted with a Texas corporation to ship its product into
the state). Plaintiff does not meet her burden of alleging that Airbnb purposefully directed
contact to Texas. Thus, the Court should dismiss Airbnb for lack of specific personal
jurisdiction.
b. Plaintiff’s Claims Do Not Arise Out of or Relate to Any Contact Airbnb had
with Texas.
Even if the Court were to find that Airbnb did have minimum contacts with Texas, that
alone will not support an exercise of specific jurisdiction. The “[s]pecific-jurisdiction analysis
has two co-equal components. . . . purposeful availment has no jurisdictional relevance unless the
defendant’s liability arises from or relates to the forum contacts.” Moki Mac, 221 S.W. 3d at
579. In determining whether a plaintiff’s claim arises out of the alleged contacts, Texas has
rejected the expansive “but-for” test because it is “too broad and judicially unmoored to satisfy
due-process concerns.” Id. at 581. Instead, Texas courts require that there “be a substantial
connection between those contacts and the operative facts of the litigation.” Id. at 585.
Plaintiff’s claims relate to personal injuries sustained due to an allegedly dangerous
condition at a property not owned or controlled by Airbnb. In contrast, the contacts she alleges 1
Airbnb has with Texas relate to 1) collection and remission of taxes, 2) publishing how-to guides
1
As stated above, Airbnb objects to the admission of Plaintiff’s exhibits as they have not been
authenticated, contain inadmissible hearsay, and are not appropriate for judicial notice.
Accordingly, Plaintiff’s allegations regarding these contacts are unsubstantiated, and could not,
in any event, establish personal jurisdiction over Airbnb here.
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to assist hosts in creating a listing 2, 3) Airbnb’s lobbying activities related to policies affecting
operation of the online marketplace, 4) collection of service fees, and 5) the amount of people
who choose to stay at properties located in Texas 3. Her sole argument connecting her claims
with these contacts is that Airbnb “provided the means for the rental.” This connection
epitomizes the “but-for” test that Texas has explicitly rejected. In Moki Mac, the Court held that
the defendant’s contacts with the forum—direct solicitation, mailing of promotional materials,
and entering a contract—were not sufficiently connected to the operative facts of the case to
confer specific jurisdiction over the plaintiffs’ wrongful death claim. 221 S.W. 3d at 585. The
Court explained:
[The decedent,] Andy might not have gone on the trip were it not
for Moki Mac’s representations about safety. However, the
operative facts of the [Plaintiffs’] suit concern principally the
guides’ conduct of the hiking expedition and whether they
exercised reasonable care in supervising Andy. The events on the
trail and the guides’ supervision of the hike will be the focus of the
trial, will consume most if not all of the litigation’s attention, and
the overwhelming majority of the evidence will be directed to that
question. . . . Whatever connection there may be between Moki
Mac’s promotional materials sent to Texas and the operative facts
that led to Andy’s death, we do not believe it is sufficiently direct
to meet due-process concerns.
Id. The same is true here. Even if this Court were to find that Plaintiff’s allegations amount to
minimum contacts with Texas, Plaintiff’s personal injury claims do not arise out of any of the
conduct Plaintiff has alleged. Rather, they arise from the condition of the premises (that Airbnb
did not own, operate, or control), the property owner’s conduct, and Plaintiff’s own conduct.
Those issues will consume most if not all of the litigation’s attention. As in Moki Mac,
“[w]hatever connection there may be between” Airbnb’s collection of taxes and fees, publication
of how-to guides, or lobbying activities and these “operative facts” cannot be “sufficiently direct
2
As evident in Plaintiff’s Exhibits A-3 and A-4, these guides do not provide information
regarding the condition or management of the premises.
3
Plaintiff’s Exhibit A-2 is not a resource published by Airbnb. None of the purported facts that
Plaintiffs pull from Exhibit A-2 cite sources from Airbnb, but rather cite third parties with no
connection to Airbnb and rely upon data not verified by Airbnb.
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to meet due-process concerns.” Id. For this reason alone, Airbnb is not subject to specific
personal jurisdiction in Texas.
3. Exercising Personal Jurisdiction over Airbnb Would Offend Traditional Notions of
Fair Play and Substantial Justice.
Because Plaintiff has failed to show that Airbnb has minimum contacts with Texas or that
her claims arise out of or relate to any alleged contacts, personal jurisdiction does not exist here,
and the Court need not ask whether its exercise would be fair and reasonable. Reiff v. Roy, 115
S.W. 3d 700, 707 (Tex. App.—Dallas 2003, pet. denied) (holding that where minimum contacts
do not exist, “it is not necessary to address . . . traditional notions of fair play and substantial
justice”). However, even if the Court were to find Airbnb has minimum contacts with Texas and
Plaintiff’s claims arise out of those contacts, the exercise of personal jurisdiction would not be
fair and reasonable for the reasons set forth in its Special Appearance.
Plaintiff’s arguments to the contrary are unavailing. If anything, Plaintiff highlights why
Airbnb should not be haled into this forum. Plaintiff argues that exercising personal jurisdiction
over Airbnb here would be fair because the information, evidence, and deponents are in Texas.
This statement is inaccurate for Airbnb, which is based in California and whose witnesses are
spread throughout the country. The evidence and deponents in Texas (the property, the property
owner) are not connected to any of Airbnb’s alleged conduct. She also argues that Texas has an
interest in this dispute because she was injured at a Texas property owned by a Texas resident.
Once again, this demonstrates that her claims have no connection to Airbnb’s alleged contacts
with Texas, as the operation of Airbnb’s online marketplace occurs outside of Texas and Airbnb
does not own, operate, or control the property or the host in Texas. Exercising jurisdiction under
these circumstances would be contrary to notions of fair play and substantial justice. Therefore,
this Court should dismiss Plaintiff’s claims against Airbnb for lack of personal jurisdiction.
CONCLUSION
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Airbnb thus requests that after hearing this Motion, currently set for December 20, 2023,
the Court sustain Airbnb, Inc.’s Special Appearance, and dismiss all claims against Airbnb for
want of jurisdiction.
Page 13 of 15
DATED this 13th day of December, 2023.
DAVIS GRAHAM & STUBBS LLP
By /s/ Madeline J. Smart
Madeline J. Smart (TX Bar # 24105352)
Jacqueline V. Roeder (not admitted in TX)
1550 Seventeenth Street, Suite 500
Denver, CO 80202
Telephone: (303) 892-9400
Facsimile: (303) 893-1379
madeline.smart@dgslaw.com
jackie.roeder@dgslaw.com
Attorneys for Defendant Airbnb, Inc.
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VERIFICATION
State of ________ §
County of ________ §
Monique Chauvet
Before me, the undersigned authority, on this day personally appeared Monique Chauvet, who,
after being duly sworn, says that the above and foregoing is true and correct to the best of her
knowledge and belief.
Signed and [sworn / affirmed] to before me on ___________, 2023 by Monique Chauvet
[Notary’s Official Signature]
[Title of Office]
[Commission Expiration]
Page 15 of 15
CERTIFICATE OF SERVICE
As required by Tex. R. Civ. P. 21a(a)(1) or (2), I hereby certify that on the 13th day of
December, 2023, I served the foregoing document upon counsel of record and all parties, listed
below, as follows:
Charles A. Bennett Via:
Andrew J. Klopfer
Electronic E-Service
Omar B. Itani
Electronic Filing Manager
Bennett Injury Law
U.S. Mail
12770 Coit Road, Suite 720
Certified Mail, R.R.R.
Dallas, TX 75251
Fax
cbennett@bennettinjurylaw.com
E-Mail
aklopfer@bennettinjurylaw.com
omar@bennettinjurylaw.com
Attorneys for Plaintiff
Lori Martinez
Daniel Paret
Christopher Freyder
Wood Smith Henning & Berman LLP
14860 Landmark Boulevard, Suite 120
Dallas, TX 75254
dparet@wshblaw.com
cfreyder@wshblaw.com
Attorneys for Defendant
Lydia Miller
/s/ Madeline J. Smart
Madeline J. Smart
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Madeline Smart on behalf of Madeline Smart
Bar No. 24105352
madeline.smart@dgslaw.com
Envelope ID: 82558592
Filing Code Description: Response
Filing Description: DEFS REPLY IN SUPPORT OF SPECIAL
APPEARANCE TO PRESENT MTN OBJECTING TO JURISDICTION
Status as of 12/14/2023 10:21 AM CST
Associated Case Party: LYDIA MILLER
Name BarNumber Email TimestampSubmitted Status
Texas Docket texasdocket@wshblaw.com 12/13/2023 8:04:57 PM SENT
Katharina Martinez kmartinez@wshblaw.com 12/13/2023 8:04:57 PM SENT
Natalie LeDe nlede@wshblaw.com 12/13/2023 8:04:57 PM SENT
Martha Blanco mblanco@wshblaw.com 12/13/2023 8:04:57 PM SENT
Daniel J.Paret dparet@wshblaw.com 12/13/2023 8:04:57 PM SENT
Christopher Freyder cfreyder@wshblaw.com 12/13/2023 8:04:57 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Charles KAris caris@bcallp.net 12/13/2023 8:04:57 PM SENT
Janice AWolff jwolff@bcallp.net 12/13/2023 8:04:57 PM SENT
Shila Fletcher sfletcher@bcallp.net 12/13/2023 8:04:57 PM SENT
Amy Jenke ajenke@bcallp.net 12/13/2023 8:04:57 PM SENT
Charles A.Bennett cbennett@bennettinjurylaw.com 12/13/2023 8:04:57 PM SENT
Jill Graham reception@bcallp.net 12/13/2023 8:04:57 PM SENT
Andrew Klopfer aklopfer@bennettinjurylaw.com 12/13/2023 8:04:57 PM SENT
Francine Ly fly@dallascourts.org 12/13/2023 8:04:57 PM SENT
Omar Itani omar@bennettinjurylaw.com 12/13/2023 8:04:57 PM SENT
Alyson Nevitte alyson@bennettinjurylaw.com 12/13/2023 8:04:57 PM SENT
Associated Case Party: AIRBNB, INC.
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Madeline Smart on behalf of Madeline Smart
Bar No. 24105352
madeline.smart@dgslaw.com
Envelope ID: 82558592
Filing Code Description: Response
Filing Description: DEFS REPLY IN SUPPORT OF SPECIAL
APPEARANCE TO PRESENT MTN OBJECTING TO JURISDICTION
Status as of 12/14/2023 10:21 AM CST
Associated Case Party: AIRBNB, INC.
Name BarNumber Email TimestampSubmitted Status
Madeline Smart madeline.smart@dgslaw.com 12/13/2023 8:04:57 PM SENT
Jacqueline Roeder jackie.roeder@dgslaw.com 12/13/2023 8:04:57 PM SENT
Patrick Tredinnick patrick.tredinnick@dgslaw.com 12/13/2023 8:04:57 PM SENT
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FILED 12/13/2023 8:04 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Debra Clark DEPUTY CAUSE NO. DC-23-03798 LORI MARTINEZ, § IN THE DISTRICT COURT OF § Plaintiff, § § v. § DALLAS COUNTY, TEXAS § AIRBNB, INC. and LYDIA MILLER, § § Defendants. 134th JUDICIAL DISTRICT § § DEFENDANT AIRBNB INC.’S REPLY IN SUPPORT OF SPECIAL APPEARANCE TO PRESENT MOTION OBJECTING TO JURISDICTION TO THE HONORABLE JUDGE OF SAID COURT: Pursuant to Texas Rule of Civil Procedure 120a, Defendant Airbnb, Inc. (“Airbnb”), through undersigned counsel, hereby submits this reply in support of its Special Appearance to Plaintiff Lori Martinez’s claims to object to the Court exercising personal jurisdiction over Airbnb. INTRODUCTION Plaintiff has failed to demonstrate—as she must—that the global online marketplace, Airbnb, is subject to general or specific personal jurisdiction in Texas. Instead, in an apparent attempt to muddy the waters, Plaintiff presents the Court with an inapplicable (and mischaracterized) statute, irrelevant allegations regarding a distinct legal entity not party to this case, and information regarding Airbnb’s business that have nothing to do with Plaintiff’s personal injury claims. The Court should reject Plaintiff’s opposition and dismiss Airbnb for lack of personal jurisdiction for multiple reasons. First, Plaintiff's assertion that Airbnb is subject to general jurisdiction in Texas is unavailing because (i) her allegations regarding Airbnb Payments, Inc. are irrelevant since it is not a party to this case and there is no colorable basis to find it is “fused” with Airbnb, Inc. as Plaintiff baldly suggests; (ii) the money services statute upon which she relies is inapplicable and does not confer general jurisdiction in any event; and (iii) her allegations regarding Airbnb’s business activities do not suggest Airbnb is “essentially at home” in Texas. Second, Plaintiff fails to establish that there is specific personal jurisdiction over Airbnb for these claims because (i) Airbnb’s alleged contacts with Texas do not amount to minimum contacts sufficient to authorize personal jurisdiction; (ii) Plaintiff's claims do not arise out of the contacts Plaintiff alleges Airbnb has with Texas; and (iii) exercising personal jurisdiction over Airbnb would not be fair and reasonable such that it comports with due process. Thus, this Court should dismiss Plaintiff's petition against Airbnb for lack of personal jurisdiction pursuant to TEX. R. CIV. P. 120a and TEX. CIV. PRAC. & REM. CODE 17.041 et seq. EVIDENCE IN SUPPORT OF SPECIAL APPEARANCE Airbnb incorporates by reference hereto all evidence submitted in support of its Special Appearance filed July 14, 2023. Airbnb objects to the use of the fourteen exhibits submitted by Plaintiff in support of her opposition to Airbnb’s Special Appearance. Affidavits offered in a special appearance “shall be made on personal knowledge [and] shall set forth specific facts as would be admissible in evidence.” TEX. R. CIV. P. 120a(3); Ennis v. Loiseau, 164 S.W.3d 698, 703 (Tex. App.—Austin 2005, no pet.). The affidavit supplied by Plaintiff’s attorney merely attests to the fact that he conducted internet research and fails to establish the admissibility of any of the exhibits upon which Plaintiff relies. Before a court may admit a document, the party offering it must show it is (1) authentic and (2) not hearsay. See TEX. R. CIV. EVID. 901(a); Martinez v. Tuesday Morning, Inc., 1997 Tex. App. LEXIS 5465, at *3 (Tex. App.—Dallas Oct. 21, 1997, no pet.). Plaintiff has failed to meet either requirement. She therefore cannot rely on her exhibits to establish the Page 2 of 15 truth of the alleged jurisdictional facts they contain. Parex Res., Inc. v. ERG Res., LLC, 427 S.W.3d 407, 419 (Tex. App.—Houston [14th Dist.] 2014), aff’d, 496 S.W.3d 58 (Tex. 2016) (refusing to consider evidence not admitted and stating that the burden of proving admissibility rests on proponent of evidence). For example, Plaintiff’s Exhibit A-2 appears to come from the blog of an unidentified author and contains only the statements of others. Plaintiff has provided no sponsoring witness or other method of authenticating this document and does not even suggest that the document contains sufficient indicia of reliability to justify its consideration despite the hearsay it contains. Additionally, Plaintiff’s Exhibits A-9, 10, 12, and 13 are uncertified copies of public records, and are therefore not authenticated and are hearsay. TEX. R. CIV. EVID. 902(4); 803. Plaintiff’s exhibits are also not appropriate subjects for judicial notice, as the facts they contain cannot “be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” TEX. R. CIV. EVID. 201(b)(2). Accordingly, this Court should not consider Plaintiff’s exhibits and should grant Airbnb’s Special Appearance. See Miles v. Barton, 2017 Tex. App. LEXIS 1564, at *19 (Tex. App.—Houston [1st Dist.] Feb. 23, 2017, no pet.) (disregarding plaintiff’s conclusory affidavit and affirming grant of special appearance when no admissible jurisdictional evidence was provided). As explained below, even if this Court were to consider Plaintiff’s exhibits, she has failed to allege sufficient jurisdictional facts to justify the exercise of personal jurisdiction over Airbnb here. Airbnb therefore addresses the arguments and evidence raised by Plaintiff without intent to waive any objection to admissibility. Page 3 of 15 ARGUMENT 1. Plaintiff Fails to Establish that the Court Has General Personal Jurisdiction Over Airbnb. None of Plaintiff’s theories for why Airbnb should be subject to general personal jurisdiction in Texas comport with Texas law or are tethered to the facts of this case. First, Plaintiff alleges that Airbnb is “fused” with a separate entity—Airbnb Payments, Inc. (“Payments”)—for the purpose of the jurisdictional analysis. This argument fails, as Plaintiff’s allegations do not satisfy the test for jurisdictional veil piercing under Texas law. Second, Plaintiff alleges that Airbnb consented to general personal jurisdiction when it engaged in activities which she contends are regulated by Chapter 152 of the Texas Finance Code. This argument, too, fails, as the statute is inapplicable to this case and only permits the exercise of jurisdiction for specific claims not at issue here. Third, Plaintiff’s generic argument that Airbnb’s contacts with Texas are so continuous and systematic as to render Airbnb at home in the forum fails under established Texas precedent. Plaintiff has therefore failed to meet her burden of establishing that Airbnb is subject to general personal jurisdiction in Texas. a. Plaintiff’s Allegations Concerning Payments Are Irrelevant, Because Plaintiff Has Not Demonstrated that Payments and Inc. Are “Fused”. Plaintiff’s allegations relating to a non-party distinct legal entity, Payments, are entirely irrelevant to this Court’s analysis of whether Airbnb is subject to personal jurisdiction. While Plaintiff suggests that Payments’ business activities should be imputed to Airbnb, because Airbnb and Payments are “fused,” Plaintiff provides no factual or legal basis to support this position. Texas law “presumes that two separate corporations are distinct entities,” and therefore requires that “the party seeking to ascribe one corporation’s actions to another by disregarding their distinct corporate entities prove this allegation.” PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W. 3d 163, 173 (Tex. 2007). Plaintiff therefore has the burden of proving that Page 4 of 15 Airbnb “controls the internal business operations and affairs” of Payments. See BMC Software Belg., N.V. v. Marchand, 83 S.W. 3d 789, 799 (Tex. 2002). “But the degree of control . . . must be greater than that normally associated with common ownership and directorship; the evidence must show that the two entities cease to be separate so that the corporate fiction should be disregarded to prevent fraud or injustice.” Id. (citations omitted). Plaintiff has failed to meet this burden, and no evidence suggests that the conduct of these two separate entities should be attributed to the other. Plaintiff has alleged only that Payments and Airbnb share a corporate address, registered agent for service in California, and corporate employees. However, it is well-settled that “[a] subsidiary corporation will not be regarded as the alter ego of its parent merely because of stock ownership, a duplication of some or all of the directors or officers, or an exercise of the control that stock ownership gives to stockholders.” PHC-Minden, L.P., 235 S.W. 3d at 175. There is no suggestion that the relationship between Airbnb and Payments goes “beyond the subsidiary’s mere presence within the bosom of the corporate family.” Id. at 176 (citing, inter alia, De Castro v. Sanifill, Inc., 198 F. 3d 282, 283-84 (1st Cir. 1999) (“requiring ‘strong and robust’ evidence of parental control over subsidiary, such that subsidiary is ‘mere shell,’ before subsidiary’s contacts could be imputed to parent”)). Accordingly, Plaintiff’s allegations regarding Payments must be disregarded. b. Chapter 152 of the Texas Finance Code Does Not Confer Personal Jurisdiction in This Case Plaintiff’s reliance on Chapter 152 of the Texas Finance Code (the “Act”) as a basis for general jurisdiction is wholly misplaced. As an initial matter, the Act does not apply to this suit: it was enacted after Plaintiff’s alleged injury and did not become effective until September 1, 2023, almost six months after this suit was filed. “A statute is presumed to be prospective in its operation unless expressly made retrospective.” TEX. GOV’T CODE ANN. § 311.022; see also In Page 5 of 15 re M.C.C., 187 S.W. 3d 383, 384 (Tex. 2006). The Act does not indicate that it should apply retrospectively. Rather, it clearly states that it “takes effect September 1, 2023,” demonstrating the legislative intent that it apply only prospectively. 2023 Tex. SB 895 § 5.01; see Houston Indep. Sch. Dist. v. Houston Chronicle Publ’g Co., 798 S.W. 2d 580, 587 (Tex. App.—Houston [1st Dist.] 1990, writ denied) (“[I]if the legislature believed the provision could be applied retroactively, there would be no reason to make it effective immediately.”). Therefore, Plaintiff’s arguments relating to the Act must be disregarded. But even if the Court were to apply the Act, it would not confer personal jurisdiction over Airbnb. Contrary to Plaintiff’s mischaracterization, Section 152.060 does not confer general jurisdiction. Instead, it states that persons subject to the Act are “considered to have consented to the jurisdiction of the courts of this state for all actions arising under this chapter.” TEX. FIN. CODE § 152.060 (emphasis added). By its plain language, the Act evidences only consent to jurisdiction for specific claims (those brought under its provisions), not consent to general jurisdiction for all claims. The Act permits actions to enforce the rules promulgated therein, which consist of requirements with which providers of money services must comply. These requirements include licensing, record-keeping, reporting, and standards for issuing refunds and receipts. TEX. FIN. CODE § 152.101-356. The Act does not provide for a private right of action, instead vesting all enforcement in the Texas banking commission, the state attorney general, and state prosecutors. Id. § 152.401. These persons may bring an action to enjoin a violation, revoke or suspend a license or delegate, issue a cease-and-desist order, or prosecute intentional false statements or intentional failure to maintain a license. Id. at §§ 152.401-410. Plaintiff does not bring any such claim, nor could she. The consent to personal jurisdiction provided in Section 152.060 does not encompass Plaintiff’s personal injury claims, and therefore cannot be a basis for exercising personal jurisdiction over Airbnb here. Page 6 of 15 In summary, the Act does not provide for general jurisdiction and Plaintiff’s claims do not fall within the jurisdiction it does confer. Therefore, even if the Act applied and Airbnb had performed activities regulated thereunder, it would not confer personal jurisdiction over Airbnb in this case. This Court should therefore disregard Plaintiff’s allegations related to the Act because they are not relevant to the jurisdictional inquiry here. a. Airbnb’s Contacts with Texas Are Not Continuous and Systematic So as to Confer General Jurisdiction over Airbnb Finally, as a last-ditch effort, Plaintiff incorrectly suggests that Airbnb’s contacts with Texas are sufficiently continuous and systematic that Airbnb should be subject to general jurisdiction. This is contrary to established precedent. As a Delaware corporation with its principal place of business in California, Airbnb is not “at home” in Texas and therefore should not be subject to general personal jurisdiction. Bibbs v. Molson Coors Bev. Co., 616 F. Supp. 3d 606, 612 (N.D. Tex. 2022) (“[T]he paradigm forum[s] where [a corporation] is essentially at home are the corporation’s place of incorporation and its principal place of business.” (citations omitted)). Only in the “exceptional case” may general jurisdiction be asserted over a corporation in a different forum, and “only if its ‘operations . . . [are] so substantial and of such a nature as to render the corporation at home in that state.” Id. “Proving such an exceptional case is ‘incredibly difficult,’” and Plaintiff has not done so here. See id. (concluding no general jurisdiction over foreign defendant “despite maintaining the ‘the largest—and longest-operating —brewery in the Dallas-Fort Worth metro area.’”). Plaintiff’s piecemeal allegations do not prove otherwise. Plaintiff alleges that Airbnb has “implicitly consented to jurisdiction in this forum” because it collects fees from Texans and their guests, and it has two registered lobbyists in Texas. These alleged contacts do not satisfy the demanding requirement of being “continuous and systematic” and therefore cannot support an exercise of general jurisdiction. See Am. Type Culture Collection v. Coleman, 83 S.W. 3d 801, Page 7 of 15 807 (Tex. 2002) (finding no general personal jurisdiction where foreign defendant, over 18-year period, sold goods and provided storage services to Texas residents, entered into contracts with Texas residents and the University of Texas Southwestern Medical Center, purchased supplies from Texas vendors, and attended conferences in Texas). Because “[j]urisdiction is premised on notions of implied consent,” courts also give weight to a defendant’s decisions not to be present in the forum. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W. 3d 777, 785 (Tex. 2005). In Am. Type Culture Collection, the Court concluded that general jurisdiction did not exist and credited the fact that the foreign defendant “ha[d] no physical presence in Texas, perform[ed] all its business services outside Texas, and carefully construct[ed] its contracts to ensure it does not benefit from Texas laws.” 83 S.W. 3d at 807; see also CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996) (giving weight to lack of presence in forum in concluding no general jurisdiction). Airbnb has not made itself at home in Texas. As a Delaware corporation headquartered in California, it has no property, office, facility, or place of business in Texas, no Texas address or telephone listing, is not registered to do business in Texas, and has no agent for service of process in Texas. See Chauvet Decl. ¶ 2. Additionally, the contract between Airbnb and its users (the Terms of Service) includes forum selection and choice of law clauses mandating that all suits be brought in California and under California law. See Chauvet Decl., Ex. A § 22. Airbnb is a foreign corporation which operates a globally accessible online marketplace. Plaintiff’s allegations do not change that reality and are insufficient to render Airbnb “at home” in Texas. Airbnb is therefore not subject to general jurisdiction in Texas. 2. Plaintiff Has Failed to Demonstrate that Specific Personal Jurisdiction Exists. To establish specific personal jurisdiction in Texas, the Court must consider: “(1) whether the defendant has minimum contacts with the forum state; (2) whether the plaintiff's cause of action arises out of or relates to the defendant’s forum-related contacts; and, (3) whether Page 8 of 15 the exercise of personal jurisdiction is fair and reasonable.” Bibbs, 616 F. Supp. 3d at 613. Airbnb does not have minimum contacts with Texas because it has not purposefully directed any contact to the state, and Plaintiff’s allegations do not demonstrate otherwise. Furthermore, Plaintiff’s claims do not arise out of the contacts she alleges Airbnb has with Texas. Finally, the exercise of personal jurisdiction here, over a foreign corporation which merely operates a globally accessible online marketplace, would not be fair and reasonable. Thus, Airbnb is not subject to specific personal jurisdiction in Texas. a. Airbnb Did Not Purposefully Direct Any Contact to Texas. Plaintiff’s allegations fall short of establishing that Airbnb has “minimum contacts” with Texas sufficient to confer specific jurisdiction. Plaintiff must prove that Airbnb “purposefully availed itself of the privilege of conducting activities” in Texas “such that [it] should reasonably anticipate being haled into court” here. Carmona v. Leo Ship Mgmt., 924 F. 3d 190, 193 (5th Cir. 2019). Plaintiff’s additional allegations and exhibits do not demonstrate that Airbnb has done so. For this reason, Airbnb is not subject to specific jurisdiction in Texas. To establish that Airbnb purposefully directed its conduct at Texas, Plaintiff must prove that Airbnb “reach[ed] out beyond one state and create[d] continuing relationships and obligations with citizens of another state.” Moki Mac River Expeditions v. Drugg, 221 S.W. 3d 569, 578 (Tex. 2007). These contacts cannot result from “the mere fortuity” that those citizens reside in Texas. Id. Airbnb, as the operator of a globally accessible website, does not “reach out” to Texas to contact users, nor does it have control over the location of properties listed, where guests choose to stay, where users reside, or from where they access the website or issue payments. As the Supreme Court has explained, “unilateral activity of another party or a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction.” Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 416-17 (1984). Plaintiff’s allegations reflect only that some Page 9 of 15 Airbnb users access the website from Texas or choose to list or stay at properties in Texas, and that Airbnb provides information and services and collects payment in connection with those users’ decisions. Viewed in contrast with the allegations in the case upon which Plaintiff most heavily relies—Bibbs—it is clear that Plaintiff’s allegations cannot amount to purposeful direction. 616 F. Supp. 3d at 613-14 (finding purposeful direction because defendant 1) maintained a large brewery in Texas, 2) advertised and sold its product in Texas, 3) employed at least 420 individuals in Texas, 4) and contracted with a Texas corporation to ship its product into the state). Plaintiff does not meet her burden of alleging that Airbnb purposefully directed contact to Texas. Thus, the Court should dismiss Airbnb for lack of specific personal jurisdiction. b. Plaintiff’s Claims Do Not Arise Out of or Relate to Any Contact Airbnb had with Texas. Even if the Court were to find that Airbnb did have minimum contacts with Texas, that alone will not support an exercise of specific jurisdiction. The “[s]pecific-jurisdiction analysis has two co-equal components. . . . purposeful availment has no jurisdictional relevance unless the defendant’s liability arises from or relates to the forum contacts.” Moki Mac, 221 S.W. 3d at 579. In determining whether a plaintiff’s claim arises out of the alleged contacts, Texas has rejected the expansive “but-for” test because it is “too broad and judicially unmoored to satisfy due-process concerns.” Id. at 581. Instead, Texas courts require that there “be a substantial connection between those contacts and the operative facts of the litigation.” Id. at 585. Plaintiff’s claims relate to personal injuries sustained due to an allegedly dangerous condition at a property not owned or controlled by Airbnb. In contrast, the contacts she alleges 1 Airbnb has with Texas relate to 1) collection and remission of taxes, 2) publishing how-to guides 1 As stated above, Airbnb objects to the admission of Plaintiff’s exhibits as they have not been authenticated, contain inadmissible hearsay, and are not appropriate for judicial notice. Accordingly, Plaintiff’s allegations regarding these contacts are unsubstantiated, and could not, in any event, establish personal jurisdiction over Airbnb here. Page 10 of 15 to assist hosts in creating a listing 2, 3) Airbnb’s lobbying activities related to policies affecting operation of the online marketplace, 4) collection of service fees, and 5) the amount of people who choose to stay at properties located in Texas 3. Her sole argument connecting her claims with these contacts is that Airbnb “provided the means for the rental.” This connection epitomizes the “but-for” test that Texas has explicitly rejected. In Moki Mac, the Court held that the defendant’s contacts with the forum—direct solicitation, mailing of promotional materials, and entering a contract—were not sufficiently connected to the operative facts of the case to confer specific jurisdiction over the plaintiffs’ wrongful death claim. 221 S.W. 3d at 585. The Court explained: [The decedent,] Andy might not have gone on the trip were it not for Moki Mac’s representations about safety. However, the operative facts of the [Plaintiffs’] suit concern principally the guides’ conduct of the hiking expedition and whether they exercised reasonable care in supervising Andy. The events on the trail and the guides’ supervision of the hike will be the focus of the trial, will consume most if not all of the litigation’s attention, and the overwhelming majority of the evidence will be directed to that question. . . . Whatever connection there may be between Moki Mac’s promotional materials sent to Texas and the operative facts that led to Andy’s death, we do not believe it is sufficiently direct to meet due-process concerns. Id. The same is true here. Even if this Court were to find that Plaintiff’s allegations amount to minimum contacts with Texas, Plaintiff’s personal injury claims do not arise out of any of the conduct Plaintiff has alleged. Rather, they arise from the condition of the premises (that Airbnb did not own, operate, or control), the property owner’s conduct, and Plaintiff’s own conduct. Those issues will consume most if not all of the litigation’s attention. As in Moki Mac, “[w]hatever connection there may be between” Airbnb’s collection of taxes and fees, publication of how-to guides, or lobbying activities and these “operative facts” cannot be “sufficiently direct 2 As evident in Plaintiff’s Exhibits A-3 and A-4, these guides do not provide information regarding the condition or management of the premises. 3 Plaintiff’s Exhibit A-2 is not a resource published by Airbnb. None of the purported facts that Plaintiffs pull from Exhibit A-2 cite sources from Airbnb, but rather cite third parties with no connection to Airbnb and rely upon data not verified by Airbnb. Page 11 of 15 to meet due-process concerns.” Id. For this reason alone, Airbnb is not subject to specific personal jurisdiction in Texas. 3. Exercising Personal Jurisdiction over Airbnb Would Offend Traditional Notions of Fair Play and Substantial Justice. Because Plaintiff has failed to show that Airbnb has minimum contacts with Texas or that her claims arise out of or relate to any alleged contacts, personal jurisdiction does not exist here, and the Court need not ask whether its exercise would be fair and reasonable. Reiff v. Roy, 115 S.W. 3d 700, 707 (Tex. App.—Dallas 2003, pet. denied) (holding that where minimum contacts do not exist, “it is not necessary to address . . . traditional notions of fair play and substantial justice”). However, even if the Court were to find Airbnb has minimum contacts with Texas and Plaintiff’s claims arise out of those contacts, the exercise of personal jurisdiction would not be fair and reasonable for the reasons set forth in its Special Appearance. Plaintiff’s arguments to the contrary are unavailing. If anything, Plaintiff highlights why Airbnb should not be haled into this forum. Plaintiff argues that exercising personal jurisdiction over Airbnb here would be fair because the information, evidence, and deponents are in Texas. This statement is inaccurate for Airbnb, which is based in California and whose witnesses are spread throughout the country. The evidence and deponents in Texas (the property, the property owner) are not connected to any of Airbnb’s alleged conduct. She also argues that Texas has an interest in this dispute because she was injured at a Texas property owned by a Texas resident. Once again, this demonstrates that her claims have no connection to Airbnb’s alleged contacts with Texas, as the operation of Airbnb’s online marketplace occurs outside of Texas and Airbnb does not own, operate, or control the property or the host in Texas. Exercising jurisdiction under these circumstances would be contrary to notions of fair play and substantial justice. Therefore, this Court should dismiss Plaintiff’s claims against Airbnb for lack of personal jurisdiction. CONCLUSION Page 12 of 15 Airbnb thus requests that after hearing this Motion, currently set for December 20, 2023, the Court sustain Airbnb, Inc.’s Special Appearance, and dismiss all claims against Airbnb for want of jurisdiction. Page 13 of 15 DATED this 13th day of December, 2023. DAVIS GRAHAM & STUBBS LLP By /s/ Madeline J. Smart Madeline J. Smart (TX Bar # 24105352) Jacqueline V. Roeder (not admitted in TX) 1550 Seventeenth Street, Suite 500 Denver, CO 80202 Telephone: (303) 892-9400 Facsimile: (303) 893-1379 madeline.smart@dgslaw.com jackie.roeder@dgslaw.com Attorneys for Defendant Airbnb, Inc. Page 14 of 15 VERIFICATION State of ________ § County of ________ § Monique Chauvet Before me, the undersigned authority, on this day personally appeared Monique Chauvet, who, after being duly sworn, says that the above and foregoing is true and correct to the best of her knowledge and belief. Signed and [sworn / affirmed] to before me on ___________, 2023 by Monique Chauvet [Notary’s Official Signature] [Title of Office] [Commission Expiration] Page 15 of 15 CERTIFICATE OF SERVICE As required by Tex. R. Civ. P. 21a(a)(1) or (2), I hereby certify that on the 13th day of December, 2023, I served the foregoing document upon counsel of record and all parties, listed below, as follows: Charles A. Bennett Via: Andrew J. Klopfer Electronic E-Service Omar B. Itani Electronic Filing Manager Bennett Injury Law U.S. Mail 12770 Coit Road, Suite 720 Certified Mail, R.R.R. Dallas, TX 75251 Fax cbennett@bennettinjurylaw.com E-Mail aklopfer@bennettinjurylaw.com omar@bennettinjurylaw.com Attorneys for Plaintiff Lori Martinez Daniel Paret Christopher Freyder Wood Smith Henning & Berman LLP 14860 Landmark Boulevard, Suite 120 Dallas, TX 75254 dparet@wshblaw.com cfreyder@wshblaw.com Attorneys for Defendant Lydia Miller /s/ Madeline J. Smart Madeline J. Smart Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Madeline Smart on behalf of Madeline Smart Bar No. 24105352 madeline.smart@dgslaw.com Envelope ID: 82558592 Filing Code Description: Response Filing Description: DEFS REPLY IN SUPPORT OF SPECIAL APPEARANCE TO PRESENT MTN OBJECTING TO JURISDICTION Status as of 12/14/2023 10:21 AM CST Associated Case Party: LYDIA MILLER Name BarNumber Email TimestampSubmitted Status Texas Docket texasdocket@wshblaw.com 12/13/2023 8:04:57 PM SENT Katharina Martinez kmartinez@wshblaw.com 12/13/2023 8:04:57 PM SENT Natalie LeDe nlede@wshblaw.com 12/13/2023 8:04:57 PM SENT Martha Blanco mblanco@wshblaw.com 12/13/2023 8:04:57 PM SENT Daniel J.Paret dparet@wshblaw.com 12/13/2023 8:04:57 PM SENT Christopher Freyder cfreyder@wshblaw.com 12/13/2023 8:04:57 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Charles KAris caris@bcallp.net 12/13/2023 8:04:57 PM SENT Janice AWolff jwolff@bcallp.net 12/13/2023 8:04:57 PM SENT Shila Fletcher sfletcher@bcallp.net 12/13/2023 8:04:57 PM SENT Amy Jenke ajenke@bcallp.net 12/13/2023 8:04:57 PM SENT Charles A.Bennett cbennett@bennettinjurylaw.com 12/13/2023 8:04:57 PM SENT Jill Graham reception@bcallp.net 12/13/2023 8:04:57 PM SENT Andrew Klopfer aklopfer@bennettinjurylaw.com 12/13/2023 8:04:57 PM SENT Francine Ly fly@dallascourts.org 12/13/2023 8:04:57 PM SENT Omar Itani omar@bennettinjurylaw.com 12/13/2023 8:04:57 PM SENT Alyson Nevitte alyson@bennettinjurylaw.com 12/13/2023 8:04:57 PM SENT Associated Case Party: AIRBNB, INC. Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Madeline Smart on behalf of Madeline Smart Bar No. 24105352 madeline.smart@dgslaw.com Envelope ID: 82558592 Filing Code Description: Response Filing Description: DEFS REPLY IN SUPPORT OF SPECIAL APPEARANCE TO PRESENT MTN OBJECTING TO JURISDICTION Status as of 12/14/2023 10:21 AM CST Associated Case Party: AIRBNB, INC. Name BarNumber Email TimestampSubmitted Status Madeline Smart madeline.smart@dgslaw.com 12/13/2023 8:04:57 PM SENT Jacqueline Roeder jackie.roeder@dgslaw.com 12/13/2023 8:04:57 PM SENT Patrick Tredinnick patrick.tredinnick@dgslaw.com 12/13/2023 8:04:57 PM SENT