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Filed: 6/7/2015 10:50:15 AM
David R, Lloyd, District Clerk
Johnson County, Texas
By: Tracy Barbar, Deputy
Cause No. DC-C201500272
MATTHEW S, BOVEE, § IN THE DISTRICT COURT : b > W :
Plaintiff, :
vw
HOUSTON PRESS LP,
MARGARET DOWNING,
DIANNA WRAY, PETER RYAN,
DALLAS OBSERVER LP,
KXAN, DAWN DENNY,
PATRICK WILLIAMS,
MEDIA GENERAL INC.,
VOICE MEDIA GROUP,
| }and
“DOES‘T THROUGH 5,
Defendants, § 249th JUDICIAL DISTRICT
OF JOHNSON COUNTY, TEXAS
LOR WOR On ts 202 CO LO LO UO Uo OD 20 20
SPECIAL APPEARANCE OF DEFENDANT
VOICE MEDIA GROUP AND ORIGINAL ANSWER SUBJECT THERETO
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant Voice Media Group (“WMG”) hereby files. its Special Appearance pursuant to
Rule 120a, Texas Rules of Civil Procedure, challenging this Court’s exercise of’ personal
jurisdiction over VMG, and subject thereto files its Original Answer, and would respectfully show
as follows:
JAL APP. Cc
Because this Court lacks personal jurisdiction over Defendant VMG, and because. this
Court’s exercise of personal jurisdiction over Defendant VMG would violate constitutional due
process, Defendant VMG hereby makes a special appearance, pursuant to Tex. R. Civ. P. 120a,
contesting personal jurisdiction, and further would show:
1 This special appearance is made to the entire proceeding.
RECORDER'S MEMORANDUM
This instrument is of poor quality Page 296
at the time of imaging coe2. This special appearance is filed before any other plea, pleading, or motion filed by
Defendant VMG; all subsequent pleas, pleadings, or motions filed by Defendant VMG are made
subject to this special appearance.
3. Plaintiff has failed to plead any legitimate basis for personal jurisdiction. Plaintiff
has alleged that Defendant VMG is “conducting business in this state.” This is incorrect. Voice
Media Group is a holding company with ownership interests in the entities that publish the Dallas
Observer and Houston Press newspapers and websites, but VMG itself does not publish those
newspapers. The entities that publish those newspapers — Dallas Observer LP and Houston Press
LP — are Defendants in this lawsuit. Defendant VMG is not registered to do business in Texas and
is not required to be so registered.
4. This Court does not have jurisdiction over Defendant VMG because it ig not
amenable to process issued by the courts of Texas.
5. Defendant VMG is not a resident of Texas and is not required to maintain andidoes
not maintain a registered agent for service in Texas. :
6. Defendant VMG has not committed any tort, in whole or in part, within the State of
Texas. Defendant VMG does not maintain a place of business in Texas, does not own real estate in
Texas, and has no bank accounts in Texas. “
7. Defendant VMG has no substantial connection with ‘Texas arising from any action
or conduct of Defendant VMG purposefully directed toward Texas.
8. The Plaintiff's claims do not arise from and are not related to any activity condiicted
by Defendant VMG in Texas.
9. Defendant VMG has no continuing and systematic contacts with Texas.
DEFENDANT VOICE MEDIA GROUP’S
SPECIAL APPEARANCE AND ORIGINAL ANSWER — Page 2
Page 297
I10. The assumption of jurisdiction by the Court over Defendant VMG would offend
traditional notions of fair play and substantial justice, depriving it of due process as guaranteed by
the Constitution of the United States,
11, For these reasons, Defendant VMG requests that the Court, upon notice and hearing,
grant this motion to dismiss the entire proceeding for want of personal jurisdiction.
ORIGINAL ANSWER
Subject to its Special Appearance and. without waiving same, Defendant Voice Media
Group hereby denies generally all material allegations contained in Plaintiffs’ Original Petition and
pursuant to Rule 92, Texas Rules of Civil Procedure, requires strict proof of those allegations. _
AFFIRMATIVE DEFENSES AND ADDITIONAL MATTERS
While it is the Plaintiff's burden to prove each element of their claims, Defendant VMG
hereby pleads the following additional matters and/or affirmative defenses:
A. The Plaintiff's claims are barred by limitations in whole or in part.
B. ‘The Plaintiff is barred from recovery by the doctrines of no incremental harm and/or
libel-proof plaintiff.
Cc The Plaintiff's claims are: based, in whole or in part, upon a publication that is not
defamatory as a matter of law, and which therefore is not actionable as a matter of law under Texas
common Jaw, under Article Section 8 of the Texas Constitution, and.under the First Amendment
to the United States Constitution.
"D. The publication complained of is privileged, in whole or in part, under Texas ‘ewil
Practice & Remedies Code § 73,002, ‘Texas common law, Article 1 Section 8 of the Texas
Constitution, and the First Amendment to the United States Constitution.
DEFENDANT VOICE MEDIA GROUP’S
SPECIAL APPEARANCE AND ORIGINAL ANSWER - Page 3-
Page 298E, The publication complained of is true and/or substantially true, and therefore is not
actionable as a matter of law under Texas Civil Practice & Remedies Code § 73.005, Texas
common faw, Article I Section:8 of the Texas Constitution, and the First Amendment to the United
States Constitution.
F, Plaintiff's claims are frivolous and/or malicious, and thus are subject to disraissal
under Chapter 14 of the Texas Civil Practice & Remedies Code.
G. Defendant VMG is not liable to Plaintiff'in the capacity in which it was sued.
H. Defendant VMG pleads the mitigation of damages provisions of Texas Civil
Practice & Remedies Code § 73.003 and reserves its right, in accordance with that statute, and
following discovery and further inquiry, to present information concerning Plaintiff, the circum-
stances of the publication, and subsequent events for consideration of the extent and source of
damages, if any, to Plaintiff; in mitigation of the damages, if any, Plaintiff suffered; and in
mitigation of claims for exemplary or punitive damages. '
WHEREFORE, PREMISES CONSIDERED, Defendant Voice Media Group prays that the
Plaintiff's claims against it be dismissed for want of personal jurisdiction, and in the alternative and
only subject to its special appearance, that takes nothing by this action, that costs of court be
charged and taxed to the Plaintiff, and that Defendant recover such other relief at law and in equity
to which it may be justly entitled.
DEFENDANT VOICE MEDIA GROUP'S i
SPECIAL APPEARANCE AND ORIGINAL ANSWER - Page 4 .
Page 299Respectfully submitted,
Graves, DOUGHERTY, HEARON & Moopy, P.C.:
401 Congress Ave., Suite 2200
Austin, Texas 78701
(12) 480-5600 phone
ts) James A. Hemphill
James A, Hemphill
State Bar No. 00787674
(512) 480-5762 direct phone
(512) 536-9907 direct fax
jhemphill@gdhm.com
- Steven P. Suskin
State Bar No. 24001045
LAW OFFICE OF STEVEN P. SUSKIN
120) East Jefferson St., Ste. 100
Phoenix, AZ 85034 ‘
(602) 229-1005 ok
steve.suskin@voicemediagroup.com
ATTORNEYS FOR DEFENDANT
VOICE MEDIA GROUP
tearm
DEFENDANT VOICE MEDIA GROUP’S
SPECIAL APPEARANCE AND ORIGINAL ANSWER — Page 5
Page 300| certify that on August 7, 2015, a true and correct copy of the foregoing was delivered to
counsel of record as indicated below:
Matthew S. Bovee
1745256
1100 Highway 1807
Venus, TX 76084
Plaintiff Pro Se
(via Certified Mail, Return Receipt Requested)
{s/ James A. Hemphill - i
James A. Hemphill
DEFENDANT VOICE MEDIA GROUP’S
SPECIAL APPEARANCE AND ORIGINAL ANSWER - Page 6
Page 301
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Filed: 6/7/2015 10:50:15 AM David R, Lloyd, District Clerk Johnson County, Texas By: Tracy Barbar, Deputy Cause No. DC-C201500272 MATTHEW S, BOVEE, § IN THE DISTRICT COURT : b > W : Plaintiff, : vw HOUSTON PRESS LP, MARGARET DOWNING, DIANNA WRAY, PETER RYAN, DALLAS OBSERVER LP, KXAN, DAWN DENNY, PATRICK WILLIAMS, MEDIA GENERAL INC., VOICE MEDIA GROUP, | }and “DOES‘T THROUGH 5, Defendants, § 249th JUDICIAL DISTRICT OF JOHNSON COUNTY, TEXAS LOR WOR On ts 202 CO LO LO UO Uo OD 20 20 SPECIAL APPEARANCE OF DEFENDANT VOICE MEDIA GROUP AND ORIGINAL ANSWER SUBJECT THERETO TO THE HONORABLE JUDGE OF SAID COURT: Defendant Voice Media Group (“WMG”) hereby files. its Special Appearance pursuant to Rule 120a, Texas Rules of Civil Procedure, challenging this Court’s exercise of’ personal jurisdiction over VMG, and subject thereto files its Original Answer, and would respectfully show as follows: JAL APP. Cc Because this Court lacks personal jurisdiction over Defendant VMG, and because. this Court’s exercise of personal jurisdiction over Defendant VMG would violate constitutional due process, Defendant VMG hereby makes a special appearance, pursuant to Tex. R. Civ. P. 120a, contesting personal jurisdiction, and further would show: 1 This special appearance is made to the entire proceeding. RECORDER'S MEMORANDUM This instrument is of poor quality Page 296 at the time of imaging coe2. This special appearance is filed before any other plea, pleading, or motion filed by Defendant VMG; all subsequent pleas, pleadings, or motions filed by Defendant VMG are made subject to this special appearance. 3. Plaintiff has failed to plead any legitimate basis for personal jurisdiction. Plaintiff has alleged that Defendant VMG is “conducting business in this state.” This is incorrect. Voice Media Group is a holding company with ownership interests in the entities that publish the Dallas Observer and Houston Press newspapers and websites, but VMG itself does not publish those newspapers. The entities that publish those newspapers — Dallas Observer LP and Houston Press LP — are Defendants in this lawsuit. Defendant VMG is not registered to do business in Texas and is not required to be so registered. 4. This Court does not have jurisdiction over Defendant VMG because it ig not amenable to process issued by the courts of Texas. 5. Defendant VMG is not a resident of Texas and is not required to maintain andidoes not maintain a registered agent for service in Texas. : 6. Defendant VMG has not committed any tort, in whole or in part, within the State of Texas. Defendant VMG does not maintain a place of business in Texas, does not own real estate in Texas, and has no bank accounts in Texas. “ 7. Defendant VMG has no substantial connection with ‘Texas arising from any action or conduct of Defendant VMG purposefully directed toward Texas. 8. The Plaintiff's claims do not arise from and are not related to any activity condiicted by Defendant VMG in Texas. 9. Defendant VMG has no continuing and systematic contacts with Texas. DEFENDANT VOICE MEDIA GROUP’S SPECIAL APPEARANCE AND ORIGINAL ANSWER — Page 2 Page 297 I10. The assumption of jurisdiction by the Court over Defendant VMG would offend traditional notions of fair play and substantial justice, depriving it of due process as guaranteed by the Constitution of the United States, 11, For these reasons, Defendant VMG requests that the Court, upon notice and hearing, grant this motion to dismiss the entire proceeding for want of personal jurisdiction. ORIGINAL ANSWER Subject to its Special Appearance and. without waiving same, Defendant Voice Media Group hereby denies generally all material allegations contained in Plaintiffs’ Original Petition and pursuant to Rule 92, Texas Rules of Civil Procedure, requires strict proof of those allegations. _ AFFIRMATIVE DEFENSES AND ADDITIONAL MATTERS While it is the Plaintiff's burden to prove each element of their claims, Defendant VMG hereby pleads the following additional matters and/or affirmative defenses: A. The Plaintiff's claims are barred by limitations in whole or in part. B. ‘The Plaintiff is barred from recovery by the doctrines of no incremental harm and/or libel-proof plaintiff. Cc The Plaintiff's claims are: based, in whole or in part, upon a publication that is not defamatory as a matter of law, and which therefore is not actionable as a matter of law under Texas common Jaw, under Article Section 8 of the Texas Constitution, and.under the First Amendment to the United States Constitution. "D. The publication complained of is privileged, in whole or in part, under Texas ‘ewil Practice & Remedies Code § 73,002, ‘Texas common law, Article 1 Section 8 of the Texas Constitution, and the First Amendment to the United States Constitution. DEFENDANT VOICE MEDIA GROUP’S SPECIAL APPEARANCE AND ORIGINAL ANSWER - Page 3- Page 298E, The publication complained of is true and/or substantially true, and therefore is not actionable as a matter of law under Texas Civil Practice & Remedies Code § 73.005, Texas common faw, Article I Section:8 of the Texas Constitution, and the First Amendment to the United States Constitution. F, Plaintiff's claims are frivolous and/or malicious, and thus are subject to disraissal under Chapter 14 of the Texas Civil Practice & Remedies Code. G. Defendant VMG is not liable to Plaintiff'in the capacity in which it was sued. H. Defendant VMG pleads the mitigation of damages provisions of Texas Civil Practice & Remedies Code § 73.003 and reserves its right, in accordance with that statute, and following discovery and further inquiry, to present information concerning Plaintiff, the circum- stances of the publication, and subsequent events for consideration of the extent and source of damages, if any, to Plaintiff; in mitigation of the damages, if any, Plaintiff suffered; and in mitigation of claims for exemplary or punitive damages. ' WHEREFORE, PREMISES CONSIDERED, Defendant Voice Media Group prays that the Plaintiff's claims against it be dismissed for want of personal jurisdiction, and in the alternative and only subject to its special appearance, that takes nothing by this action, that costs of court be charged and taxed to the Plaintiff, and that Defendant recover such other relief at law and in equity to which it may be justly entitled. DEFENDANT VOICE MEDIA GROUP'S i SPECIAL APPEARANCE AND ORIGINAL ANSWER - Page 4 . Page 299Respectfully submitted, Graves, DOUGHERTY, HEARON & Moopy, P.C.: 401 Congress Ave., Suite 2200 Austin, Texas 78701 (12) 480-5600 phone ts) James A. Hemphill James A, Hemphill State Bar No. 00787674 (512) 480-5762 direct phone (512) 536-9907 direct fax jhemphill@gdhm.com - Steven P. Suskin State Bar No. 24001045 LAW OFFICE OF STEVEN P. SUSKIN 120) East Jefferson St., Ste. 100 Phoenix, AZ 85034 ‘ (602) 229-1005 ok steve.suskin@voicemediagroup.com ATTORNEYS FOR DEFENDANT VOICE MEDIA GROUP tearm DEFENDANT VOICE MEDIA GROUP’S SPECIAL APPEARANCE AND ORIGINAL ANSWER — Page 5 Page 300| certify that on August 7, 2015, a true and correct copy of the foregoing was delivered to counsel of record as indicated below: Matthew S. Bovee 1745256 1100 Highway 1807 Venus, TX 76084 Plaintiff Pro Se (via Certified Mail, Return Receipt Requested) {s/ James A. Hemphill - i James A. Hemphill DEFENDANT VOICE MEDIA GROUP’S SPECIAL APPEARANCE AND ORIGINAL ANSWER - Page 6 Page 301