UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION


THIRD PLANET PUBLISHING, INC.	:
						:
				Plaintiff	:
						:
			v.			:	CASE NUMBER:  4:95CV328
						:
JEFF PULVER AND PERFORMANCE :
SYSTEMS INTERNATIONAL, INC.,	:
						:
				Defendants	:

MOTION TO DISMISS

Jeff Pulver, a defendant in this case, moves, pursuant to Fed. R. Civ. P.
12(b)(2)(3)(4) & (5) and 28 United States Code, Section 1400(a) and 1406(a),
that the above entitled action be dismissed.  Dismissal of this action is 
proper under Rule 12(b)(2)(3)
(4)&(5) for the reason that this Court lacks personal jurisdiction over
defendant Jeff Pulver, for insufficiency of service of process, lack of filing
by counsel of proof of service by the Secretary of State, as required by 
United States District Court - 
Eastern District Local Rule 4(b)(3)(c); in addition, dismissal of this action 
is warranted under 28 U.S.C. Sec. 1400(a)], for improper venue.  In the
alternative, if it be deemed in the interest of justice, [under 28 U.S.C. 
Sec. 1406(a)],
defendant Jeff Pulver
requests that this action be transferred to the United States District Court 
for the Eastern District of New York, where the action could have been brought 
originally.  In support of this motion this defendant shows the Court the 
following:

	1.	Plaintiff sues defendant Jeff Pulver in this case for copyright 
infringement (Count 1) and misappropriation of trade secrets (Count 2). 
Plaintiff also
seeks a Preliminary Injunction against defendant Jeff Pulver and others with 
regard to certain acts
related to Plaintiff's alleged copyright protected software, from which acts
Plaintiff erroneously claims it has no adequate remedy at law.

	2.	Venue in this district is based in part upon erroneous allegations in 
Plaintiff's Verified Complaint that venue is proper in this district and 
division under 28 United States Code Sec. 1391(b) & (c) in that a substantial
part of the events giving rise
to the claims in this action occurred in this district and division.  Such 
allegations are in fact not true.  See the affidavit of defendant Jeff Pulver, 
copy of which is attached to this Motion as Exhibit A and made a part hereof
by reference.

	3.	The venue allegations contained in Plaintiff's Verified Complaint filed
in this Court should be given no probative value by the Court.  Prior to filing
this action, Plaintiff filed a substantially similar action in the Northern 
District of Texas against
defendant Jeff Pulver and in the Verified Complaint filed in that district and
division, Plaintiff swears that "a substantial part of the events giving rise
to the claims in this action occurred in this district [Northern District of 
Texas] and division
[Dallas],"  [emphasis supplied].  Notwithstanding its sworn allegations to the
contrary, Plaintiff now files a Verified Complaint in this Court swearing that
"a substantial part of the events giving rise to the claims in this action 
occurred in this 
[the Eastern] district and division [Sherman]," [emphasis supplied].  
Plaintiff's contradictory sworn statements should not be used to support 
Plaintiff's claims that this Court has in personam jurisdiction over defendant
Jeff Pulver and venue of this action.
Defendant Jeff Pulver was never served with the Verified Complaint filed in the
Northern District of Texas, Dallas Division.  A copy of that Complaint was 
obtained by counsel for defendant Jeff Pulver and is attached to this Motion as
Exhibit B.

	4.	Moreover, Count 1 of the Complaint alleges that defendant Jeff Pulver 
has committed infringement of plaintiff's copyright under 17 United States Code
Sec. 501.  This cause is therefore subject to venue under 28 United States Code
1400(a), ("the copyrght venue statue").
Under the copyright venue statute, this Court is required to consider 
Jeff Pulver's contacts with this particular federal judicial district to 
determine the location in which Jeff Pulver "may be found" for purposes of 
establishing venue
as well as Jeff Pulver's amenability to personal jurisdiction.   Defendant
Jeff Pulver has not "engaged in business" in [the Eastern District of Texas] 
within the meaning of Sec. 17.044 of the Tex. Civ. Prac. & Rem. Code and the
copyright venue statute.
Moreover, the claims asserted by Plaintiff in this case do not arise "out of . 
. . business done" in the [Eastern district] of Texas [by Jeff Pulver] and to 
which the nonresident [Jeff Pulver] is a party."  Thus, the requirements of 
that statute have 
not been satisfied as shown by the affidavit of Jeff Pulver attached to this 
Motion and Jeff Pulver is not amenable to personal jurisdiction by this Court 
under the Texas Long Arm Statute.  The "may be found" requirement of section 
1400(a) of the copyright
venue statute generally is equated with a party being subject to personal 
jurisdiction and therefore the focus of the Court's inquiry in this case is 
whether Jeff Pulver has contacts with the Eastern District of Texas.  The 
copyright statute requires that
this Court construe references in the Texas Long Arm Statute, to "engaging in 
business in Texas", [for purposes of determining Jeff Pulver's amenability to 
personal jurisdiction in Texas], as meaning "engaging in business in the 
Eastern District of Texas."
See defendant Jeff Pulver's Memorandum of Law in Support of this 
Motion to Dismiss.

	5.	Plaintiff alleges on page 1 of the Complaint that defendant Jeff Pulver
is an individual "who appears to be a non-resident," and that said defendant 
"has engaged in business in the State of Texas out of which Plaintiff's cause 
of action arises..." and
that said defendant may properly be served with process "under Texas Civil 
Practice and Remedies Code Sec. 17.044", [the Texas long-arm statute].

	6.	As shown in the attached affidavit, defendant Jeff Pulver is a resident
of the State of New York and has not engaged in business in the State of Texas,
and specifically has no contacts with either district in which this case was 
filed.  This Court lacks
in personam jurisdiction over defendant Jeff Pulver because he is a resident
of the State of New York and was not, and is not, amenable to service of 
process within the Eastern District, [or any district], of the State of 
Texas; moreover, the claim on 
which this action is based, arose, if at all, in the Eastern federal judicial
district of the State of New York, as shown in the attached affidavit of 
defendant Jeff Pulver.

	7.	By reason of the foregoing, defendant Jeff Pulver also claims that 
services of process in this action was insufficient.  Process was served upon
the Secretary of State of Texas as agent for service of process on defendant 
Jeff Pulver under the Texas Long Arm Statue.
Jeff Pulver is not amenable to personal jurisdiction under that statute and 
therefore service upon the Secretary of State of Texas was ineffective as to 
defendant Jeff Pulver and proper service was never effected or obtained upon
said defendant.
	
	8.	Defendant also asserts insufficiency of process under Fed. R. 12(b)(4).
Plaintiff's counsel failed to file a copy of the Proof of Service by the 
Secretary of State with the Clerk of this Court within ten (10) days of its 
receipt as required by Rule 4
(b)(3)(c) of this Court's Local Rules and therefore this Court should dismiss 
the action for want of prosecution as provided in said Local Rule.

	WHEREFORE defendant Jeff Pulver demands judgment that the Complaint be 
dismissed, together with the costs and disbursements of this action, or, in the
alternative, if it be deemed in the interest of justice, that this action be 
transferred under Title 28
, United States Code Sec. 1406(a) to the United States District Court for the 
Eastern District of New York, where this action could have been brought 
originally.

	Dated:	January 3, 1996.

						Respectfully submitted,

						___________________________________
						Thomas W. Moore
						TBN#14401000
						Veda Moore
						TBN#14378600
						MOORE AND MOORE, P.C.
						14141 Southwest Freeway
						Suite 1500
						Sugar Land, Texas 77478
						(713) 242-8004
						(713) 242-8224 - Telecopier

						ATTORNEYS FOR DEFENDANT
						JEFF PULVER

CERTIFICATE OF SERVICE

	I hereby certify that a true and correct copy of the foregoing Motion, 
the accompanying Notice of Motion, and proposed Order were served upon counsel
for plaintiff via United States Mail, Certified, Return Receipt Requested, on
this ___ day of January, 1996, as follows:


Mack Ed Swindle
Thomas F. Harkins
David R. Childress
MICHENER LARIMORE SWINDLE
WHITAKER FLOWERS SAWYER
REYNOLDS & CHALK, L.L.P.
301 Commerce Street, Suite 3500
Fort Worth, Texas 76102

						______________________________
							Thomas W. Moore