IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS - AUSTIN DIVISION

FUNDSXPRESS FINANCIAL
NETWORK, INC.
Plaintiff,

v.

DIGITAL INSIGHT
CORPORATION, ET AL.
Defendants.

MEMORANDUM IN SUPPORT OF DEFENDANTS JOHN DORMAN'S AND VINCENT
BRENNAN'S MOTION TO DISMISS COMPLAINT PURSUANT TO RULE 12(b)(2)

TO THE HONORABLE SAM SPARKS, UNITED STATES DISTRICT JUDGE:

INTRODUCTION

Defendants John Dorman and Vincent Brennan should be dismissed from
this action as there is no basis for this Court to exercise personal
jurisdiction over either of them. Both Dorman and Brennan are
currently employed by defendant Digital Insight Corporation ("DI"),
which is located in Calabasas, California. Neither Dorman nor Brennan
has ever had personal contacts with the state of Texas. Neither
defendant has ever resided in Texas, owned real property in Texas or
maintained a bank account in Texas. Dorman has been to Texas three or
four times during the last five years. None of these visits were for
personal matters, and each lasted a few days at most. Similarly,
Brennan has been to Texas only five times during the past twelve
years. During those few visits, he stayed in the state no more than
three nights. Thus, this Court does not have general jurisdiction over
either Dorman or Brennan.

The Court also does not have special jurisdiction over either Dorman
or Brennan. None of the wrongful acts attributed to Dorman or Brennan
took place in Texas or were directed at Texas.

Thus, the Complaint should be dismissed against Defendants Dorman and
Brennan.

STATEMENT OF FACTS

DI and plaintiff are competitors in the field of internet
banking. Second Amended Complaint ("Complaint") at P14. They both
provide internet banking and related services to financial
institutions throughout the country. Id.

In 2001, DI hired defendant Ronald Goffman, and non-party Steven
Crain, both of whom who had been previously terminated by
plaintiff. Complaint PP34, 37. In October 2001, DI hired another of
plaintiffs former employees, non-party Gifford Dunn. [1] Complaint
P38.

Plaintiff alleges that its former employees - Goffman, Crain and
Dunn - provided DI with certain documents and information they
received while employed by plaintiff. Further, plaintiff alleges that
Dorman made certain disparaging and untrue statements about
plaintiff. Complaint at P57. Based upon this conduct, plaintiff's
Second Amended Complaint purports to allege claims for
misappropriation of trade secrets (Counts I and II), receipt of stolen
property (Count III), conversion (Count IV), copyright infringement
(Count V) tortious interference (Count VI), defamation (Count VII) and
false advertising (Count VIII). [2]

With respect to defendant Dorman, the Complaint makes the following
specific factual allegations:

   * Dorman is the Chairman and CEO of DI and is a citizen of
     California. Complaint at P3.

   * In May 2002, Dorman allegedly made a statement that FundsXpress
     had laid off most of its sales force and raised its
     prices. Complaint at P 57.

   * In May 2002, Dorman allegedly stated that DI believed that
     certain of the alleged trade secrets were publicly available and
     therefor not trade secrets. Complaint at PlO3.

This is the sum and substance of all of the allegations regarding
Dorman. None of these allegations include any assertion that Dorman
had any contact with the state of Texas whatsoever at any relevant
time related to this litigation.

Similarly, the allegations regarding Brennan demonstrate that he had
no contact with the forum state of Texas. With respect to Brennan, the
Complaint alleges:

   * Brennan worked with Defendants Eric Edwards, Ron Goffman, Stephen
     Crain, and a third party, Gifford Dunn, at John Harland & Company
     in the early 1990s and has continued to have close contact with
     them. Complaint at P16.

   * Brennan joined DI in January 2000, and thereafter recruited Dunn,
     Goffman and Crain to work at DI. Complaint at P16.

   * Brennan allegedly knew that Dunn was still employed as
     FundsXpress' most senior sales executive while he was employed
     for DI. Complaint at P16.

As discussed below, none of the forgoing conduct, to the extent it
occurred, took place in Texas or was directed at Texas. Further,
neither Dorman nor Brennan has had any other substantial contacts with
Texas. Accordingly, both defendants Dorman and Brennan should be
dismissed from this action for lack of personal jurisdiction.

ARGUMENT

I. THE STANDARD FOR DETERMINING PERSONAL JURISDICTION

A court determines the existence of personal jurisdiction over a
nonresident defendant by examining the "(1) assertion of jurisdiction
by the law of the forum;" and "(2) conformity of the law with the
Constitution." St. Claire v. Ensurelink, 2002 U.S. Dist. Lexis 7052,
*6 (N.D. Tex. 2002); Panda Brandywine Corp. v. Potomac Electric Power
Co., 253 F.3d 865, 867 (5th Cir. 2001). A defendant is amenable to the
personal jurisdiction of a federal court to the same extent that he or
she would be amenable to the jurisdiction of a state court in the same
forum. St. Claire, at *6. Because the Texas long-arm statute confers
jurisdiction to the limits of the federal constitution, the court need
only concern itself with the federal due process inquiry. Id.

Two elements must be present to exercise personal jurisdiction over a
nonresident: (1) the nonresident must have some minimum contact with
the forum which results from an affirmative act on his or her part;
and (2) it must be fair and reasonable to require the nonresident to
defend the suit in the forum state. St Claire, at *7; Panda
Brandywine, 253 F.3d at 867. The due process clause ensures that
persons have "fair warning that a particular activity may subject
[them] to the jurisdiction of a foreign sovereign." Id.

Minimum contacts can be established either through contacts sufficient
to assert general jurisdiction or contacts sufficient to assert
specific jurisdiction. Panda Brandywine, 253 F.3d at 867. The
plaintiff has the burden of proving that the exercise of personal
jurisdiction is appropriate. Id.

II. DORMAN AND BRENNAN ARE NOT SUBJECT TO GENERAL JURISDICTION IN
TEXAS BECAUSE THE LIMITED CONTACTS THEY HAVE HAD WITH TEXAS ARE NOT
CONTINUOUS OR SYSTEMATIC.

General jurisdiction may be found when a claim is unrelated to the
nonresident's contacts with the forum but where those contacts are
"continuous and systematic." St Claire, at * 8. The minimum contacts
analysis requires a showing of substantial activities in the forum
state. Id. at *9; Canyoncreek Communications Corp. v. Communication
Cable Co., 2002 U.S. Dist. LEXIS 4168, *9 (N.D. Tex. 2002).

In National Indus. Sand Ass'n v. Gibson, 897 S.W.2d 769, 774
(Tex. 1995), the court held that the defendant's tenuous contacts did
not constitute the systematic and continuous contacts with Texas
necessary for general jurisdiction. There, the only contacts the
defendant had with Texas were mailings of national newsletters and
notices of acceptance of dues to a member company in Texas and the
attendance of one of its officials at a meeting in Texas. The court
was persuaded by the defendant's showing that, among other things, it:
(1) never resided maintained a place of business in Texas; (2) did not
maintain an agent for service in Texas; (3) did not have Texas
employees; (4) never owned any assets in Texas; (5) never paid any
taxes in Texas; (6) never maintained a bank account in Texas; and (7)
never owned, leased, rented, or controlled any real or personal
property in Texas. Id. at 772-73.

Like the defendant in National Indus. Sand Assoc., neither Dorman nor
Brennan have had systematic and continuous contacts with
Texas. Neither has ever resided or been employed in Texas; rather,
Dorman is employed in and a resident of California and Brennan is
employed in and a resident of Georgia. Dorman Aff. at PP1,2; Brennan
Aff. at 2.3 Neither defendant has ever maintained an office, mailing
address, or telephone number in Texas. Dorman Aff. at P3; Brennan
Aff. at P3. Further, neither Dorman nor Brennan has ever owned any
assets, including bank accounts or real or personal property in
Texas. Dorman Aff. at P4; Brennan Aff. at P4. Nor has either ever paid
any income or property taxes in Texas. Dorman Aff. at P5; Brennan
Aff. at P5. Neither has ever voted in a Texas election. Dorman Aff. at
P8; Brennan Aff. at P8.

The limited contacts that Dorman and Brennan have had with Texas are
not sufficient to support the exercise of general jurisdiction over
either one of them. The only contact either has had has been limited
to a few visits to the state, none of which lasted more than a few
days. Dorman Aff. at P9; Brennan Aff. at P9. Such limited visits are
not enough to establish general jurisdiction over either.

3 The Affidavit of John Dorman in Support of Motion to Dismiss
("Dorman Aff.") and the Affidavit of Vincent Brennan in Support of
Motion to Dismiss ("Brennan Aff.") are filed concurrently herewith.


III. DORMAN AND BRENNAN ARE NOT SUBJECT TO SPECIFIC JURISDICTION IN
TEXAS, AS THE COMPLAINT DOES NOT ALLEGE ANY FACTS DEMONSTRATING THAT
EITHER DEFENDANT ENGAGED IN ANY CONDUCT WHICH OCCURRED IN TEXAS OR
WAS DIRECTED AT TEXAS.

Specific jurisdiction exists when a nonresident defendant has
"purposefully directed its activities at the forum state and the
litigation results from alleged injuries that arise out of or relate
to those activities." Panda Brandywine Corp. v. Potomac Electric Power
Co., 253 F.3d 865 (5th Cir. 2001). Specific jurisdiction is not
created simply because a plaintiff resides in and was injured in
Texas. Id. at 870. Specific personal jurisdiction requires that three
conditions be met: (1) the defendant must have done some act to
purposefully avail himself ofthe privilege of conducting activities in
the forum state; (2) the claims alleged against the defendant must
arise out of the defendant's forum-related activities; and (3) the
exercise of jurisdiction in the forum state must be reasonable. See
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-74 (1985). Because
these conditions must be met, "[c]onsequences stemming from the actual
[or alleged tort injury do not confer personal jurisdiction at the
site or sites where such consequences happen to occur." Allred
v. Moore & Peterson, 117 F.3d 278, 282 (Sth Cir. 1997) (citing Jobe
v. ATR Mktg.. Inc., 87 F. 3d 751, 753 (5th Cir. 1996).

In Panda Brandywine Corp., Texas plaintiffs sold electricity under a
contract to defendant, a utility incorporated in Virginia and District
of Columbia. In connection with a suit concerning this sale, the
plaintiffs argued that specific jurisdiction in Texas was appropriate
because the defendant knew its action would cause harm to the
plaintiff in Texas.

The Fifth Circuit declined to exercise jurisdiction over the
nonresident. Although the plaintiffs' allegations suggested that the
defendant purposefully directed its actions toward them in Texas, such
allegations were insuff~cient because the parties' contract was not
governed by Texas law, was not to be performed in Texas, and had no
relation to Texas other than the fortuity that plaintiffs resided
there. Id. at 869. The Fifth Circuit further recognized that the law
does not permit the exercise of jurisdiction over a nonresident
defendant simply because the plaintiff~s complaint alleged injury to a
Texas resident, regardless of the defendant's contacts. Such a result
would completely vitiate the constitutional requirement of minimum
contacts and purposeful availment. Id. at 870. See also Mink v. AAAA
Development LLC, 190 F.3d 333, 336 (5th Cir. 1999) (no personal
jurisdiction because the plaintiffdid not establish any contacts with
the state of Texas which were directly related to the causes of
action).

In this action, there is no specific jurisdiction over either Dorman
or Brennan. With respect to Brennan, the complaint alleges merely that
he was involved in recruiting three former FundsXpress employees, and
was aware that Dunn still worked for FundsXpress while he was first
employed by DI. Complaint at P16. Yet, when this alleged conduct
occurred, Brennan was located in his office in Georgia, the people he
allegedly recruited were all located outside of Texas, and they all
went to work for DI in locations outside the state of Texas. And, at
the time Brennan allegedly knew Dunn was working for both DI and
FundsXpress, neither one of them was located in the State of
Texas. Brennan Aff. at P11. As such, none of the acts which
Plaintiff alleges that Brennan committed occurred in, or were
purposefully directed at, Texas.

Similarly, the complaint does not allege that Dorman engaged in any
conduct in or directed at Texas. Instead, it alleges that Dorman made
several statements regarding FundsXpress' business and information DI
allegedly obtained regarding FundsXpress. Complaint at PP 57,
103. These alleged statements were made while Dorman was at DI's
off~ce in Calabasas, California. Complaint at P3; Dorman Aff. at
P10. Thus, Dorman is not subject to personal jurisdiction in Texas, as
he did not commit any act in or directed at Texas.

Further, specific jurisdiction over Dorman cannot be created by the
fact that the statements attributed to him in the Complaint were
published in a magazine which is circulated nationally (although this
fact is not alleged in the Complaint). In Wilson v Belin, 20 F.3d 633
(5th Cir. 1994), the Fifth Circuit found that the same factual
circumstances were insufficient to extend jurisdiction over a
nonresident who had been interviewed for an article that was published
in Texas. In Belin, a Texas reporter telephoned the defendants in
Indiana and Iowa and asked for their responses to a speech made by the
plaintiff. The reporter then allegedly published the defendants'
comments in a Texas newspaper. Based upon these published statements,
the plaintiff filed a libel action against the defendants in a Texas
court. The trial court dismissed the case against the defendants for
lack of personal jurisdiction, and the Fifth Circuit affirmed that
decision. Id. at 646.

In announcing its ruling, the Belin court found it significant that
"neither [defendant] did any preparation for a story to defame the
plaintiff. They did not even write or devise a story. They did no
research regarding [the plaintiff's] theory in Texas or
elsewhere. Furthermore, there is no indication they were paid for
their comments, that their comments were part of a planned business
venture, or that such unsolicited comments served any role in
advancing their business careers." Belin, 20 F.3d at 648.

Nor was the fact that the tort in Belin occurred in Texas found to be
dispositive. Although the defendants may have been able to foresee
that the defamatory remarks would be published in Texas, the Belin
court explained that foreseeability alone is not enough to confer
specific personal jurisdiction. Belin, 20 F.3d at 648-649. Because the
defendants "took no planned action to inject themselves into the Texas
forum," but merely accepted an unsolicited telephone call asking for
their opinions, the Texas courts did not have jurisdiction over either
one of them. Belin, 20 F. 3d at 649.

As in Belin, neither Dorman nor Brennan took any action to inject
themselves into a Texas forum. And although Dorman allegedly made
comments regarding FundsXpress, like the defendants in Belin, he did
not prepare for, write or edit a story to defame FundsXpress. Dorman
Aff. at P10. He merely accepted an unsolicited telephone call from a
reporter who asked him questions to which he responded. Id.

Because neither Dorman nor Brennan purposefully directed any
activities alleged in the Complaint toward the State of Texas, and
since neither could reasonably anticipate being haled into a Texas
court based upon those allegations, this Court does not have specific
personal jurisdiction over either one of them. Accordingly, the Court
should dismiss them from this action.

CONCLUSION

This Court does not have general or specific personal jurisdiction
over either Dorman or Brennan. Neither defendant has had systematic
and continuous contacts with Texas. In addition, none of the actions
which plaintiff ascribes to Dorman or Brennan occurred in Texas, and
plaintiffhas not alleged otherwise. Accordingly, both Dorman and
Brennan should be dismissed from this action for lack of personal
jurisdiction.

[1] Plaintiff previously sued Gifford Dunn in Kansas City, where he
    resides.  Complaint at P34. That action was settled.

[2] The Complaint fails to identify whom, among the six named
    defendants are purportedly liable for each of these six claims.

Respectfully submitted,

CLARK, THOMAS & WINTERS,
A Professional Corporation
By: BARRY K. BISHOP
State Bar No. 02346000
P. O. Box 1148
Austin, Texas 78767-1148
(512) 472-8800
(512) 474-1129 fax

John W. Cotton
Aaron C. Gundzik
COTTON & GUNDZIK LLP
725 South Figueroa Street, 34th Floor
Los Angeles, California 90017
(213) 312-1330
(213) 623-6699 fax

ATTORNEYS FOR DEFENDANTS DIGITAL INSIGHT CORPORATION, ERIC EDWARDS,
RONALD GOFFMAN, JOHN DORMAN, VINCENT BRENNAN AND STEPHEN CRAIN

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing
document has been served on all counsel of record via ( )
hand-delivery, ( ) facsimile and/or (*) certified mail, return receipt
requested, on this 31 day of July, 2002:

R. James George, Jr.
Nanneska N. Hazel
George & Donaldson, L.L.P.
114 West 7th Street, Suite 1100
Austin,Texas 78701
(512) 499-0094 fax
Barry K. Bishop