A Mexican company disputed personal jurisdiction in Texas, but ran afoul of special appearance procedure: “A special appearance that merely challenges the method of service fails as a special appearance and constitutes a general appearance. A complaint that a defendant was not served in acccordance with the Hague Convention is a complaint regarding a curable defect in service of process. Such a complaint does not defeat a nonresident’s amenability to the court’s process and thus should not be raised via a special appearance.” Vitro Packaging de Mexico v. Dubiel, No. 05-17-00258-CV (applying Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 202 (Tex. 1985)) (Dec. 13, 2017) (mem. op.) (citations omitted, emphasis added)
Appellant filed a notice of appeal about a special appearance that was timely, measured from the ruling on a motion to amend and reconsider, but was not timely, when measured from the original ruling. The Fifth Court found that it was untimely: “The record here reflects the issue in the special appearance was whether the trial court could exercise specific jurisdiction over appellant. Appellant’s motion to amend and reconsider did not present any new arguments. Instead, it cited to decisions issued after the original order was signed, none of which changed the state of the law regarding specific jurisdiction. Because the motion to amend and reconsider presented no new argument, we conclude the amended order denying appellant’s special appearance was not independently appealable and agree with appellees that appellant should have filed its notice of appeal within twenty days of the signing of the original order.” Michelin North America v. Gallegos, No. 05-17-00617-CV (Nov. 21, 2017) (mem. op.)
In recent years, the U.S. and Texas Supreme Court have been widely recognized as limiting the reach of long-arm personal jurisdiction. While the necessary showing is now more difficult in some case, it is far from impossible, as shown by Colmen LLC v. Santander Consumer USA, In that case, among other “[s]ince . . . 2015 . . . Colmen reached out to Santander in Texas to solicit the purchase of the fifty-two separate installment sales contracts at issue in this lawsuit. As required, for each individual contract, Colmen forwarded its proposed terms and conditions and all contractually required information, including customer credit-related information, to Santander’s offices in Texas.” No. 05-17-00101-CV (Nov. 3, 2017).
Over the summer, the Fifth Court thoroughly summarized and applied the many recent Supreme Court (both U.S. and Texas) cases about personal jurisdiction in Northern Frac Proppants v. 2011 NF Holdings. Specifically, “this appeal presents this central specific jurisdiction question: Do non-Texas residents who acquire and sell Wisconsin sand mines and related rights purposefully avail themselves of Texas if (i) Texas companies claim to be the assets’ rightful owners and (ii) the non-residents know that much of the sand produced in Wisconsin will be sold to customers for use in Texas fracing operations?” The Court “conclude[d] that the answer is no based on this case’s particular facts.” No. 05-16-00319-CV (July 27, 2017) (mem. op.)
In a forceful statement against merits discovery before the resolution of a special appearance, the Fifth Court granted a writ of mandamus to require that “relator’s deposition be limited to matters directly relevant to the issue of jurisdiction if the deposition is taken before the trial court rules on relator’s special appearance,” because “Rule 120a requires discovery be limited to matters relevant to jurisdiciton prior to a ruling on a special appearance.” In re: Stanton, No. 05-17-00834-CV (Aug. 24, 2017) (mem. op.) (citing, inter alia, In re: Doe, 444 S.W.3d 603, 608 (Tex. 2014)).
The Fifth Court rejected the exercise of personal jurisdiction in Texas over a Mexican reinsurance broker in Cooper Gay Martinez del Rio y Asociados v. Elamex, S.A. de C.V., holding: “Cornerstone [Healthcare Group Holding, Inc. v. Nautic Management, 493 S.W.3d 65 (2016)] is distinguishable. CGM did not spearhead or direct appellees’ purchase of the Policy. CGM did not seek out appellees in Texas, insure appellees’ Texas assets, or seek to profit from business in Texas. Further, unlike in Cornerstone, there is no evidence CGM was created for or created subsidiary entities for the purpose of conducting business in Texas, and appellees do not allege this occurred. Rather, Elamex, a Mexican entity, contacted HUB, which began a chain of communications eventually leading to CGM, to find an insurer for its properties. Afirme, a Mexican entity that provided that Policy, sought reinsurance through CGM and paid a commission to CGM. At no point did CGM seek out a Texas company or Texas assets in order to benefit, profit, or take advantage of Texas such that it impliedly consented to suit here.” No. 05-16-01436-CV (Aug. 22, 2017) (mem. op.)
Two important concepts about personal jurisdiction were at issue in Celanese Corp. v. Salcedo Sahagun, a case about “Mexican nationals’ use of a Washington, D.C. publicist to disseminate defamatory statements directed at Texas and other markets as part of a national media campaign . . . .” The resolution of those questions turned in no small part on the nuances of how they were defined. The first question was whether a publicist was an agent (and thus, creating imputation) as opposed to an independent contractor; its resolution turned on whether the defendants “retained control over [her] manner and means of performance — regardless of whether they chose to exercise that right.” The second involved the reconciliation of cases applying Calder v. Jones; the Court approached that issue by focusing on “whether [defendants] intended to benefit from having the statements distributed in Texas, regardless of the route taken to get them there.” No. 05-16-00868-CV (Aug. 9, 2017) (mem. op.)
A law firm’s former client sued for allegedly flawed tax advice; part of the basis for personal jurisdiction in Texas was the presence of a firm partner at a meeting with the IRS in Dallas. As to that point, the Fifth Court held: “On this record, we conclude there is no evidence of a substantial connection between Wolfe’s attendance at the June 2010 Dallas meeting and the operative facts of the litigation, i.e., whether appellants breached their fiduciary duties owed to Millennium when they ‘represented Hanson’ during the appeal of the 2009 audit and ‘continued to take positions’ during the June 2010 Dallas meeting that were ‘adverse to Millennium’s interests’ respecting the disputed tax benefits . . . . Therefore, Wolfe’s attendance at that meeting does not constitute a contact supporting specific jurisdiction.” The opinion reviews and rejects other arguments for personal jurisdiction, many of which appear (in various forms) in similar cases involving professional advice and state lines. Fried Frank v. Millennium Chemicals, No. 05-16-01132-CV (July 31, 2017) (mem op.)
In Deaton v. Johnson, the Fifth Court found that a Rhode Island lawyer’s retention pursuant to representation agreement governed by Texas law and “performable in Tarrant County, Texas” allowed the exercise of personal jurisdiction in Texas over that lawyer. No. 05-16-01221-CV (July 14, 2017) (mem. op.)
Plaintiff sued two insurance companies, headquartered out-of-state, who produced evidence that their business was limited to out-of-state activity. As to an allegation that the companies and their agents met in Toronto where they “conspired to forge [Plaintiff’s signature,” the Court reminded that “the assertion of personal jurisdiction over a nonresident defendant may not be based solely upon the effects or consequences of an alleged conspiracy with a resident in the forum state.” Friend v. Acadia Holding Corp., No. 05-16-00286-CV (April 27, 2017) (applying Nat’l Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 773 (Tex. 1995)).