In The Court of Appeals for the Fifth Appeals District of Texas at Dallas

Transcription

1 NO CV ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 May 21 P1:41 Lisa Matz CLERK In The Court of Appeals for the Fifth Appeals District of Texas at Dallas TIMOTHY DARRELL JONES, Appellant, V. FERNANDO GARZA and DORA GARZA, Appellees. On Appeal from the 191 st Judicial District Court Dallas County, Texas The Honorable Gena Slaughter, Presiding Cause No. DC J APPELLANT S BRIEF COUNSEL FOR APPELLANT TIMOTHY DARRELL JONES ORAL ARGUMENT REQUESTED KENNETH J. LAMBERT State Bar No PAUL W. BENNETT State Bar No FLETCHER, FARLEY, SHIPMAN & SALINAS, L.L.P N. Central Expressway, 16th Floor Dallas, Texas (214) (214) [Facsimile]

2 IDENTITY OF PARTIES AND COUNSEL Pursuant to Texas Rule of Appellate Procedure 38.1(a), Appellant certifies that the following is a complete list of the parties, attorneys, and any other persons having any interest in the outcome of this lawsuit: Timothy Darrell Jones Defendant/Appellant Kenneth J. Lambert Appellate Counsel for Defendant/Appellant Paul W. Bennett Trial Counsel for Defendant/Appellant Fletcher, Farley, Shipman & Salinas, L.L.P N. Central Expressway, 16th Floor Dallas, Texas Fernando Garza and Dora Garza Douglas A. Allison Bradford P. Klager Law Offices of Douglas A. Allison 403 N. Tancahua Street Corpus Christi, Texas Plaintiffs/Appellees Counsel for Plaintiffs/Appellees Other Defendants in Trial Court (Not Parties Herein) Elbar, Inc. Trisal Leasing Company, Inc. Paul W. Bennett Fletcher, Farley, Shipman & Salinas, L.L.P N. Central Expressway, 16th Floor Dallas, Texas Trial Counsel for Other Defendants ii

3 TABLE OF CONTENTS PAGE Identity of Parties and Counsel... ii Table of Contents... iii Table of Authorities... v Statement of the Case... vii Issue Presented... vii Texas courts do not have jurisdiction over a nonresident defendant unless the nonresident defendant has purposefully established minimum contacts with Texas, and the court s exercise of jurisdiction over the defendant comports with fair play and substantial justice. Can a Texas court exercise jurisdiction over a Tennessee resident, whose only sporadic contacts with Texas are that he passed through it five times in his life (two of which were trips to Ft. Hood as a part of his military service), merely because he had a vehicular collision with a Texas resident in Virginia?... vii Statement of Facts... 1 Summary of the Argument... 5 Argument... 6 A. The Legal Standards and Allegations Specific Jurisdiction Standards General Jurisdiction Standards Plaintiffs Allegations Relating to Jurisdiction B. Texas Courts are not Authorized to Exercise Jurisdiction Over Jones iii

4 1. Appellees Allegations Regarding Alter Ego Appellees Allegations Regarding Jones as an Employee, Statutory Employee, Borrowed Servant, Agent, etc. of Elbar, Inc Jones has Insufficient Contacts to be Subjected to the Jurisdiction of a Texas Court a. Specific Jurisdiction b. General Jurisdiction Exercise of Jurisdiction Over Jones in This Case Would Offend Traditional Notions of Fair Play and Substantial Justice Conclusion Prayer Certificate of Service Appendix iv

5 TABLE OF AUTHORITIES Cases Page(s) BMC Software Belgium, B.V. v. Marchand 83 S.W.3d 789 (Tex. 2002)... 7, 8, 19 Burger King Corp. v. Rudzewicz 471 U.S. 462 (1985)... 7, 9, 10, 20 Commonwealth Gen. Corp. v. York 177 S.W.3d 923 (Tex. 2005)... 7 Cornelison v. Chaney 127 Cal. Rptr. 352 (Cal. 1976) CSR Ltd. v. Link 925 S.W.2d 591 (Tex. 1996) , 19 Goodyear Dunlop Tires Operations, S.A. v. Brown, U.S. 131 S.Ct (2011) , 9, Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C. 815 S.W.2d 223 (Tex. 1991) , 19, 25 Hanson v. Deckla 357 U.S. 235 (1958)... 9, 19, 22 Helicopteros Nacionales v. Hall 466 U.S. 408 (1984) , 17, 19, International Shoe Co. v. Washington 326 U.S. 310 (1945)... 16, 21-22, 24 Kelly v. General Interior Constr., Inc. 301 S.W.3d 653 (Tex. 2010) , v

6 Michiana Easy Livin Country, Inc. v. Holten 168 S.W.3d 777 (Tex. 2005)... 7, 9, 10, 18, 20 Moki Mac River Expeditions v. Drugg 221 S.W.3d 569 (Tex. 2007) , 16-17, 19-20, 22, 24 National Indus. San Ass n v. Gibson 897 S.W.2d 769 (Tex. 1995)... 8, 17 Nichols v. Tseng Hsiang Lin 282 S.W.3d 743 (Tex. App. Dallas 2009 no pet.) Perkins v. Benguet Consol. Mining Co. 342 U.S. 437 (1952) Schlobohm v. Schapiro 784 S.W.2d 355 (Tex. 1990)... 8, 17 Twister B.V. v. Newton Research Partners, LP S.W.3d, 2012 Tex. App. LEXIS 2833 (Tex. App. Dallas April 11, 2012, n.p.h.)... 16, 22 World-Wide Volkswagen Corp. v. Woodson 444 U.S. 286 (1980)... 9, 20 Statutes and Rules TEX. CIV. PRAC. & REM. CODE ANN (VERNON 2008 & SUPP. 2011) TEX. GOV T CODE ANN. 54A.013(b) (Vernon Supp. 2011)... vii TEX. R. APP. P. 38.1(a)... ii vi

7 STATEMENT OF THE CASE Nature of the Case: Plaintiffs sued several defendants seeking recovery for personal injuries allegedly sustained as a result an alleged vehicular collision in Virgina. Trial Court: Hon. Gena Slaughter, 191 st Judicial District Court, Dallas County. Trial Court s Disposition: The Associate Judge denied Appellant Timothy Darrell Jones Special Appearance on April 11, 2012 [Apx. Tab A ; CR 279]. That Order became an Order of the trial court by operation of law on May 11, TEX. GOV T CODE ANN. 54A.013(b) (Vernon Supp. 2011). ISSUE PRESENTED Texas courts do not have jurisdiction over a nonresident defendant unless the nonresident defendant has purposefully established minimum contacts with Texas, and the court s exercise of jurisdiction over the defendant comports with fair play and substantial justice. Can a Texas court exercise jurisdiction over a Tennessee resident, whose only sporadic contacts with Texas are that he passed through it five times in his life (two of which were trips to Ft. Hood as a part of his military service), merely because he had a vehicular collision with a Texas resident in Virginia? vii

8 NO CV In The Court of Appeals for the Fifth Appeals District of Texas at Dallas TIMOTHY DARRELL JONES, Appellant, V. FERNANDO GARZA and DORA GARZA, Appellees. APPELLANT S BRIEF Appellant, TIMOTHY DARRELL JONES, files this his appellant s brief, seeking reversal of an Order denying his special appearance. STATEMENT OF FACTS On August 6, 2009, Appellee, Fernando Garza was stopped due to traffic on I-81 South, in Wythe County Virginia [CR 50]. 1 Garza pled that while he was 1 References to the Clerk s Record in this case will be in this following format: [CR ]. Although requested by Appellant, no Court Reporter was available for this hearing in front of Associate APPELLANT S BRIEF PAGE 1

9 sitting in traffic, another 18-wheeler tractor/trailer rig driven by Jones struck him from the rear [CR 50]. In support of his Special Appearance, Jones provided the following facts, which were not contradicted or contested by Plaintiffs: Jones is not and has never been a Texas resident [CR 43, 212]. Jones is a resident of Memphis, Tennessee, where he has lived for the last 10 years, save for a short time when he lived in Mississippi [CR 43, 212]. At the time of the Special Appearance hearings, Jones was on active duty with the Army National Guard, stationed at Camp Shelby (Water Valley, Mississippi), awaiting deployment to Afghanistan [CR 43, 212]. He has never owned any property in Texas or owned or operated any business in Texas [CR 43, 212]. Jones is employed by Pat Salmon & Sons driving trucks, and was so employed on the date of the alleged accident [CR 44, 213]. He has never maintained a place of business in Texas, has never been employed in Texas, and has never had any employees, servants, or agents within the State [CR 44, 213]. He is not an officer or director of Pat Salmon & Sons, and his only financial interest in that company was getting paid his salary for driving trucks [CR 213]. Judge McFarlin. However, this is of no legal significance, since no testimony or evidence was provided at the hearings, and all of the evidence was contained in the filings [see CR 279]. APPELLANT S BRIEF PAGE 2

10 He has no knowledge of or control over the structure or business practices of Pat Salmon & Sons or any of its affiliated or related companies [CR 213]. Although as a part of his work for Pat Salmon & Sons and other trucking companies, he drove trucks through several states, he never had any regular route to or through Texas [CR 213]. During his years as a truck driver, he passed through Texas on three occasions; twice while a Pat Salmon & Sons driver, substituting for another driver, when he drove through the Texas panhandle on the way to Denver; and once when he covered a route for a former employer taking him to Laredo [CR 44, 213]. His only other contacts with Texas were two trips to Fort Hood when he was required to go there as a part of his National Guard duties [CR 44, 213]. He has no family in Texas and has never even visited Texas for a vacation [CR 44, 213]. His only contacts with Texas were fortuitous and random, and certainly not continuous and systematic [CR 44, 213]. Over the years, Jones regular trucking routes have been from, to or through the states of Tennessee, North Carolina, Virginia, Maryland, New Jersey, New York, Connecticut, West Virginia, Rhode Island, Arkansas, Kentucky, Colorado, Kansas, Missouri, Georgia, Iowa, Pennsylvania, Michigan, Louisiana, Oklahoma, and Indiana [CR ]. Most of his truck driving experience has been East of the Mississippi [CR 214]. This alleged accident took place in Virginia while Jones APPELLANT S BRIEF PAGE 3

11 was on the return leg of a delivery trip from Memphis, Tennessee to Massachusetts [CR 44, 214]. Jones has never been an employee, agent or representative of any sort for a company called Trisal Leasing Co., Inc. or Elbar, Inc. [CR 214]. He has never had any contracts, done any work for or had any dealings at all with Trisal or Elbar, and never entered into any kind of partnership, joint venture or any other kind of relationship with them [CR 214]. He only became aware of Trisal and Elbar s existence through this lawsuit [CR 214]. He has no knowledge of any Trisal or Elbar employees, officers or even where those businesses are located or what they do [CR 214]. In short, he has no relationship with Trisal or Elbar at all [CR 214]. Although there was an Elbar decal on the side of the truck Jones was driving at the time of the alleged accident forming the basis of this lawsuit, he did not realize that until he was shown pictures after this lawsuit was filed [CR ]. Although he is an employee of Pat Salmon & Sons, Inc., he is not an officer or supervisor he is a truck driver [CR 215]. He does not set any policies or make any contracts or enter into any relationships for them, he just drives their trucks [CR 215]. Jones has also never been employed by or had any relationship with any of the following companies: Cross Street Service, Inc.; Cross Street Properties, LLC; APPELLANT S BRIEF PAGE 4

12 Pat Salmon & Sons of Florida, Inc.; Mitchell Mail Service, Inc.; Fast Freight, Inc.; Fast Freight South, Inc.; Fast Freight West, Inc.; Fast Freight North, Inc.; CMT Trucking, Inc.; C. Gulley Truck Service, Inc.; Star Freight, Inc.; Tri-Sal Leasing, Inc.; Tri-Sal Leasing of Memphis, Inc.; Dennis Truck Line of Ohio, Inc.; JRP, Inc.; Dennis Truck Line of Florida, Inc.; J.E. Martin, Inc.; Charlie O. Young & Sos Trucking, Inc.; Texas Mail Service, Inc.; Gully Freight Lines, Inc.; Salmon Brothers, LLC; Barclay, Inc.; Kyla, Inc.; or Woodruff Trucking, Inc., and only became aware of these companies existence through this lawsuit [CR 215]. SUMMARY OF THE ARGUMENT Jones is a truck driver allegedly involved in an accident in Virginia. He also has virtually no contacts of any sort with the State of Texas. Nevertheless, the trila court denied his Special Appearance and chose to exercise personal jurisdiction over him. The clear holdings of the United States and Texas Supreme Courts, as well as this Court instruct that there is no general or specific jurisdiction over Jones, and that the exercise of jurisdiction over him in this case offends the traditional notions of fair play and substantial justice, depriving Jones of due process as guaranteed by the Constitution of the United States. APPELLANT S BRIEF PAGE 5

13 Hence, the trial court s order denying Jones Special Appearance should be reversed, and this Court should render judgment dismissing all claims against Jones for want of jurisdiction. ARGUMENT This case presents one of the most astoundingly unsupported claims for personal jurisdiction possible an individual who lives and worked far from Texas, and who has virtually no contact with the State, allegedly becoming involved in a traffic accident nearly a thousand miles from Texas borders, and then being hailed into a Texas court. There is no colorable basis for asserting jurisdiction over Jones here, and the trial court s assertion of jurisdiction over him fails every test. Jones has not purposefully established any minimum contacts with Texas, and assertion of jurisdiction over him would be offensive in every sense, requiring this Court to ignore the clear and repeated dictates of the United States and Texas Supreme Courts. A. THE LEGAL STANDARDS AND ALLEGATIONS. Texas courts do not have jurisdiction over a nonresident defendant unless the nonresident defendant has purposefully established minimum contacts with Texas, and the court s exercise of jurisdiction over defendant comports with fair play and substantial justice. Goodyear Dunlop Tires Operations, S.A. v. Brown, APPELLANT S BRIEF PAGE 6

14 U.S., 131 S.Ct. 2846, 2853 (2011); Burger King Corp. v. Rudzewicz, 471 U.S. 462, (1985); Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007); BMC Software Belgium, B.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991). Under minimum contacts analysis, Texas courts must determine whether the nonresident defendant has purposefully availed itself of the privilege of conducting activities within Texas. Moki Mac, 221 S.W.3d at 575; Michiana Easy Livin Country, Inc. v. Holten, 168 S.W.3d 777, (Tex. 2005); see CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996). See also Goodyear, 131 S.Ct. at Minimum contacts are not established unless the court finds it has either specific or general jurisdiction over the defendant. See Moki Mac, 221 S.W.3d at ; Commonwealth Gen. Corp. v. York, 177 S.W.3d 923, 925 (Tex. 2005). The plaintiff bears the initial burden to plead sufficient allegations to bring the nonresident defendant within the reach of Texas long-arm statute. See Kelly v. General Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010). If the plaintiff fails to plead facts bringing the defendant within reach of the long-arm statute, the APPELLANT S BRIEF PAGE 7

15 defendant need only prove that it does not live in Texas to negate jurisdiction. Id. at Specific Jurisdiction Standards. Texas courts cannot exercise specific jurisdiction over a nonresident defendant unless the nonresident defendant s activities were purposefully directed to Texas, and the litigation resulted from injuries that are alleged to arise out of or relate to those activities. Moki Mac, 221 S.W.3d at 576; National Indus. San Ass n v. Gibson, 897 S.W.2d 769, 774 (Tex. 1995); Schlobohm v. Schapiro, 784 S.W.2d 355, 358 (Tex. 1990); see Helicopteros Nacionales v. Hall, 466 U.S. 408, 414 (1984). 2. General Jurisdiction Standards. General jurisdiction requires a showing that the defendant conducted substantial activities within the forum, a more demanding minimum contacts analysis than for specific jurisdiction. CSR Ltd., 925 S.W.2d at 595. Texas courts cannot exercise general jurisdiction over a nonresident defendant unless the nonresident defendant has continuous and systematic contacts with Texas. BMC Software, 83 S.W.3d at 796; Guardian Royal, 815 S.W.2d at 230; see 2 Here, as detailed below, the Plaintiffs allegations failed to present any actionable factual claims that would provide the trial court with jurisdiction over Jones. Hence, proof that Jones is not a Texas resident is sufficient to establish a lack of jurisdiction over him. See Kelly, 301 S.W.3d at 658. However, even if the assertions made by Plaintiffs had met the bare threshold, Jones clearly and easily established that a Texas court could not exercise jurisdiction over him. APPELLANT S BRIEF PAGE 8

16 Helicopteros, 466 U.S. at Essentially, as stated by a unanimous United States Supreme Court just last year: For an individual, the paradigm forum for the exercise of general jurisdiction is the individual s domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home. Goodyear, 131 S.Ct. at Jurisdiction may be asserted over a party that purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. Hanson v. Deckla, 357 U.S. 235, 253 (1958); Kelly, 301 S.W.3d at ; Moki Mac, 221 S.W.3d at 575. The Texas Supreme Court has detailed what the term purposeful availment means: We have recently explained that there are three parts to a purposeful availment inquiry. Michiana, 168 S.W.3d at First, only the defendant s contacts with the forum are relevant, not the unilateral activity of another party or a third person. Id. at 785. Second, the contacts relied upon must be purposeful rather than random, fortuitous, or attenuated. Id.; see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 n.18, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). Thus, [s]ellers who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to the jurisdiction of the latter in suits based on their activities. Michiana, 168 S.W.3d at 785 (quoting Burger King, 471 U.S. APPELLANT S BRIEF PAGE 9

17 at 473). Finally, the defendant must seek some benefit, advantage or profit by availing itself of the jurisdiction. Michiana, 168 S.W.3d at 785. In contrast, a defendant may purposefully avoid a particular forum by structuring its transactions in such a way as to neither profit from the forum's laws nor subject itself to jurisdiction there. Burger King, 471 U.S. at 472. Moki Mac, 221 S.W.3d at 575. Here, Jones has not created continuing relationships and obligations with Texas citizens, or sought any benefit, advantage or profit by availing himself of Texas jurisdiction, rather, Jones has virtually no contacts at all with Texas. 3. Plaintiffs Allegations Relating to Jurisdiction. In their pleadings, Plaintiffs make the following allegations that might relate to jurisdiction over Jones: (a) Jones resides in Mississippi [CR 49]; (b) 7. Defendants Trisal and Jones were, at all times relevant to suit, doing business in Texas, fairly subjecting themselves to jurisdiction on Texas courts as alter egos, a sham, and a fraud, attempting to conceal their identity and seeking to avoid their rightful obligations, indistinguishable from the employees, business, and tractor-trailers of a Texas corporation, and availing themselves of the privileges, advantages, and benefits of the State of Texas as alleged in paragraphs below. Plaintiffs cause of action arose from and relates to Defendants contacts with Texas. Defendants had continuous and systematic contacts with Texas. And the court s exercise of jurisdiction over Defendants and their property will not offend traditional notions of fair play and substantial justice, and is consistent with the Constitutional requirements of due process [CR 50]. APPELLANT S BRIEF PAGE 10

18 (c) 15. Additionally, and/or alternatively, Plaintiffs would show that Timothy Darrell Jones was the employee, and/or borrowed employee, and/or borrowed servant, and/or statutory employee of Defendant Elbar, Inc. and/or Trisal Leasing. Timothy Darrell Jones was driving the Defendants rig with full consent and permission. Timothy Darrell Jones was driving the Defendants rig prominently displaying the name of Elbar, Inc. Timothy Darrell Jones was driving the Defendants rig prominently displaying the name of Elbar, Inc. Timothy Darrell Jones was driving the Defendants rig pursuant to that authority granted by the United States Department of Transportation to Defendant Elbar, Inc., as witnessed by Defendants display of the US DOT number on the door of the Defendants rig. Timothy Darrell Jones was driving the Defendants rig pursuant to that operating authority granted by the United States Department of Transportation to Defendant Elbar, Inc., as witnessed by Defendants display of the MC (operating authority) number on the door of the Defendants rig. At all times relevant to suit, Defendants shared the Texas identity, logo, offices, supervision, tractor/trailer, and the Texas companies licensing and authority to operate on the roadway. Defendant Jones has had further contacts with the State of Texas having driven three (3) routes through Texas. Additionally, Defendant Jones was stationed in Texas on two occasions. Since Timothy Darrell Jones was operating the Defendants rig pursuant to federal laws, state law, and/or regulations bestowing such privilege and/or privileges upon Elbar, Inc., then it follows that Timothy Darrell Jones was (and must have been) the employee, and/or borrowed employee, and/or borrowed servant, and/or statutory employee of Defendant Elbar, Inc. [CR 53-54]. APPELLANT S BRIEF PAGE 11

19 In their responses to Jones special appearance, Plaintiffs also asserted the following bases for asserting jurisdiction over Jones: (a) (b) (c) (d) (e) That Jones was insured by the same insurance company that insured Elbar, Inc., Trisal, Pat Salmon & Sons, and many more related entities, and that the insurance company (Circle Star Insurance Company) is run by the same people that own those various entities [CR ]. That Jones is represented by the same law firm as Elbar, Inc., Trisal and Pat Salmon & Sons [CR ]. That Jones was a statutory employee of Elbar, Inc. (a Texas company) [CR 243]. That Jones must have known that he was driving a truck with Elbar s name, logo, federal US DOT number and federal MC number on it [CR 247]. That it would have been illegal for Jones to have been operating the truck unless he was operating it for Elbar, Inc. [CR 248]. B. TEXAS COURTS ARE NOT AUTHORIZED TO EXERCISE JURISDICTION OVER JONES. Jones has virtually no association or contacts with Texas at all, and exercising jurisdiction over him here would violate the specific dictates of the United States and Texas Supreme Courts, as well as this Court s own authority. As a threshold matter, there are several allegations and claims made by Plaintiffs that can be disposed of before proceeding to the traditional analysis of specific and APPELLANT S BRIEF PAGE 12

20 general jurisdiction neither of which provide to subject Jones to jurisdiction in Texas courts. 1. Appellees Allegations Regarding Alter Ego. As noted above, Appellees claimed that Jones was an alter ego of one or more of a number of entities, including at least one Texas company [CR 50]. This unsupported allegation was specifically addressed by Jones in the trial court, where he testified (by affidavit, since there was no testimony or additional evidence presented at the hearings) that he was an employee of Pat Salmon & Sons driving trucks, that he was not an officer or director of Pat Salmon & Sons, and his only financial interest in that company was getting paid his salary for driving trucks, and that he had no knowledge of or control over the structure or business practices of Pat Salmon & Sons or any of its affiliated or related companies [CR 213, 215]. Jones also testified that he has never been an employee, agent or representative of any sort for a company called Trisal Leasing Co., Inc. or Elbar, Inc., has never had any contracts, done any work for or had any dealings at all with Trisal or Elbar, and never entered into any kind of partnership, joint venture or any other kind of relationship with them [CR ]. He only became aware of Trisal and Elbar s existence through this lawsuit, has no knowledge of any Trisal or Elbar employees, officers or even where those businesses are located or what APPELLANT S BRIEF PAGE 13

21 they do [CR 214]. In short, he has no relationship with Trisal or Elbar at all [CR 214]. Jones also testified that he had never been employed by or had any relationship with any of the other companies mentioned by Appellees in their pleadings: Cross Street Service, Inc.; Cross Street Properties, LLC; Pat Salmon & Sons of Florida, Inc.; Mitchell Mail Service, Inc.; Fast Freight, Inc.; Fast Freight South, Inc.; Fast Freight West, Inc.; Fast Freight North, Inc.; CMT Trucking, Inc.; C. Gulley Truck Service, Inc.; Star Freight, Inc.; Tri-Sal Leasing, Inc.; Tri-Sal Leasing of Memphis, Inc.; Dennis Truck Line of Ohio, Inc.; JRP, Inc.; Dennis Truck Line of Florida, Inc.; J.E. Martin, Inc.; Charlie O. Young & Sos Trucking, Inc.; Texas Mail Service, Inc.; Gully Freight Lines, Inc.; Salmon Brothers, LLC; Barclay, Inc.; Kyla, Inc.; or Woodruff Trucking, Inc., and only became aware of these companies existence through this lawsuit [CR 215]. If defies credulity to claim that a truck driver-employee of Pat Salmon & Sons could somehow be an alter ego of some vague Texas company (and it does appear that the claim was made in bad faith), however, Jones testimony established that he could not possibly be an alter ego of any company mentioned in Appellees pleadings, since he had never even heard of most of them prior to this lawsuit, and had no relationship of any sort with any of them other than his APPELLANT S BRIEF PAGE 14

22 employer, Pat Salmon & Sons. In addition his testimony established that his relationship with Pat Salmon & Sons was purely that of a low-level employee not an alter ego. Appellees provided no evidence or testimony to support their bald assertion regarding alter ego, and did not dispute Jones testimony in any way (indeed, Appellees did not even address this argument in their response to Jones special appearance). Hence, the alter ego argument is of no moment, and cannot be any factor in this analysis. 2. Appellees Allegations Regarding Jones as an Employee, Statutory Employee, Borrowed Servant, Agent, etc. of Elbar, Inc. Although Appellees made a number of allegations trying to tie Jones to Elbar, Inc., in their responses, they focused extensively on the claim that Jones was a statutory employee of Elbar, Inc. (a Texas corporation) [CR 91-94, 235, ]. However, these arguments are merely a red herring, since for jurisdictional purposes, the residency of Jones employer (actual or imputed) is irrelevant. It is fundamental that only Jones actions are relevant, not those of any other party or entity: The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will APPELLANT S BRIEF PAGE 15

23 vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945). See Hanson, 357 U.S. at 253; Moki Mac, 221 S.W.3d at 575; Twister B.V. v. Newton Research Partners, LP, S.W.3d, 2012 Tex. App. LEXIS 2833, *15 n.3 (Tex. App. Dallas, April 11, 2012, n.p.h.). In addition, jurisdiction over an individual cannot be based upon jurisdiction over a corporation. Nichols v. Tseng Hsiang Lin, 282 S.W.3d 743, 750 (Tex. App. Dallas 2009, no pet.). Hence, the analysis is necessarily narrowed to encompass only the actions of Jones not of his employer, statutory employer, principal or any other entity. Hence, the citizenship or activities of Elbar, Inc. (or his actual employer or any of the other entities mentioned by Appellee) are irrelevant here. 3. Jones has Insufficient Contacts to be Subjected to the Jurisdiction of a Texas Court. Under Texas law, a nonresident defendant is subject to the personal jurisdiction of Texas courts if two conditions are met: (1) the Texas long-arm statute authorizes the exercise of personal jurisdiction, and (2) the exercise of jurisdiction does not violate federal and state constitutional due process APPELLANT S BRIEF PAGE 16

24 guarantees. 3 Kelly, 301 S.W.3d at 657. As noted above, the due process inquiry is divided into two categories either of which can apply to allow the exercise of personal jurisdiction, and neither of which applies here. a. Specific Jurisdiction. Texas courts cannot exercise specific jurisdiction over a nonresident defendant unless the nonresident defendant s activities were purposefully directed to Texas, and the litigation resulted from injuries that are alleged to arise out of or relate to those activities. Moki Mac, 221 S.W.3d at 576; Gibson, 897 S.W.2d at 774; Schlobohm, 784 S.W.2d at 358; see Helicopteros, 466 U.S. at 414. It is fundamental in Texas that a plaintiff must allege acts by an individual in Texas, and in the absence of such allegations, specific jurisdiction is defeated merely by proof that the individual is not a Texas resident. See Kelly, 301 S.W.3d at 659. Here, it is undisputed that the alleged accident took place in Virginia [CR 50], and that Jones is not a Texas resident [CR 49, 212]. As the Texas Supreme Court has held, in a specific jurisdiction analysis, a plaintiff must plead and prove that the defendants acts occurred, at least in part, in 3 It is questionable whether Appellees even alleged sufficient facts to comply with the Texas Long Arm Statutes, since they failed to allege that any tort took place in Texas or that the motor vehicle at issue was operated in Texas. See TEX. CIV. PRAC. & REM. CODE ANN (Vernon 2008 & Supp. 2011). APPELLANT S BRIEF PAGE 17

25 Texas. Kelly, 301 S.W.3d at 661. In the absence of any allegations that the claim originated from the defendant s conduct in Texas, specific jurisdiction is lacking. As the Court noted when a plaintiff argued that out-of-state conduct was sufficient if it was directed to Texas: But we rejected the concept of directed-a-tort jurisdiction in Michiana, instead affirming the importance of the defendant s contacts with the forum state. Kelly, 301 S.W.3d at 661 (citing Michiana, 168 S.W.3d at ). In Michiana, the Texas Supreme Court addressed this issue in detail, rejecting the reasoning of the Fifth Circuit and numerous Texas Courts of Appeals. Michiana, 168 S.W.3d at As the Court noted, this type of analysis improperly shifts a court s focus from the relationship among the defendant, the forum, and the litigation to the relationship among the plaintiff, the forum and the litigation. Michiana, 168 S.W.3d at 790 (emphasis in original, citations omitted). The Court further noted that this type of analysis confuses the roles of judge and jury by equating the jurisdictional inquiry with the underlying merits. Id. Texas courts do not have specific jurisdiction over Jones because Jones did not purposefully direct his activities to Texas, and plaintiff s cause of action did not arise from or relate to Jones contacts with Texas. Rather, plaintiff s cause of action arose from an accident that took place in the State of Virginia, if anywhere APPELLANT S BRIEF PAGE 18

26 [CR 50]. In short, there are absolutely no activities regarding this alleged accident that have any connection with Texas at all. Hence, specific jurisdiction is not available for Jones in Texas. b. General Jurisdiction. As noted above, general jurisdiction requires a showing that the defendant conducted substantial activities within the forum, a more demanding minimum contacts analysis than for specific jurisdiction. CSR Ltd., 925 S.W.2d at 595. Texas courts cannot exercise general jurisdiction over a nonresident defendant unless the nonresident defendant has continuous and systematic contacts with Texas. BMC Software, 83 S.W.3d at 796; Guardian Royal, 815 S.W.2d at 230; see Helicopteros, 466 U.S. at For an individual, such as Jones, the paradigm forum for the exercise of general jurisdiction is his domicile. Goodyear, 131 S.Ct. at Before a court can exercise jurisdiction over an individual in a state that is not his domicile, it must be established that the individual purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. Hanson, 357 U.S. at 253; Kelly, 301 S.W.3d at ; Moki Mac, 221 S.W.3d at 575. As set forth above, the Texas Supreme Court has detailed that the term purposeful availment means: APPELLANT S BRIEF PAGE 19

27 (1) Only the defendant s contacts with the forum are relevant, not the unilateral activity of another party or a third person. Michiana, 168 S.W.3d at 785. (2) The contacts relied upon must be purposeful rather than random, fortuitous, or attenuated. Id.; see also Burger King, 471 U.S. at 476 n.18; World-Wide, 444 U.S. at 297. (3) The defendant must seek some benefit, advantage or profit by availing itself of the jurisdiction. Michiana, 168 S.W.3d at 785. Moki Mac, 221 S.W.3d at 575. Here, Jones has not created continuing relationships and obligations with Texas citizens, or sought any benefit, advantage or profit by availing himself of Texas jurisdiction, rather, Jones has virtually no contacts at all with Texas. The standard for finding general jurisdiction over a person is quite high, indeed. As noted above, for an individual such as Jones, the paradigm forum for the exercise of general jurisdiction is the individual s domicile which here is Tennessee. See Goodyear, 131 S.Ct. at To go beyond a person s domicile requires continuous and systematic contacts. Id. at As the United States Supreme Court noted in Goodyear, there are very few Supreme Court decisions regarding general jurisdiction at the time of Goodyear, there had only been two prior decisions (since the standard was created in APPELLANT S BRIEF PAGE 20

28 International Shoe) illustrating just how high the general jurisdiction hurdle actually is. The first such case was Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952), The textbook case of general jurisdiction appropriately exercised. Goodyear, 131 S.Ct. at In Perkins, a Philippine mining company that had ceased activities in the Philippines during World War II was sued in Ohio. During the time operations were not ongoing in the Philippines, the corporation s president maintained his office in Ohio, kept the company s files there, issued salary checks from there, maintained two company bank accounts there, held director s meetings there, set policies there, and directed rehabilitation of the company s Philippines properties from there. Perkins, 342 U.S. at The Supreme Court held that although the claim at issue did not arise in Ohio, it could still be adjudicated there, since Ohio was corporation s principal, if temporary, place of business. Id. The second case wherein the Supreme Court considered general jurisdiction was Helicopteros. In that case, three survivors of a helicopter crash in Peru sued a Columbian corporation in Texas. The company s contacts with Texas consisted of sending its chief executive officer to Texas to negotiate a contract, accepting checks drawn on a Houston bank, purchasing helicopters, equipment and training services from a Texas company, and sending personnel to Texas for training. APPELLANT S BRIEF PAGE 21

29 Helicopteros, 466 U.S. at 416. In Helicoptoros, the Supreme Court found that all of this activity did not constitute the kind of continuous and systematic general business contacts... found to exist in Perkins, and were insufficient to support the exercise of general jurisdiction. Id. at See Goodyear, 131 S.Ct. at In the trucking context, the case of Cornelison v. Chaney, 127 Cal. Rptr. 352 (Cal. 1976) is instructive [a copy of this opinion is included in the Appendix at Tab B ]. In Cornelison, a trucker carrying a load to a California destination was involved in an accident just across the state s border in Nevada. The court held that the standard for general jurisdiction was not met in that case in spite of evidence that the driver had made 20 trips into California in each of the past 7 years to deliver and obtain goods, had an independent contractor relationship with a local broker in California, and has a California Public Utilities Commission license. Id., 127 Cal. Rptr. at 355. So, what are Jones contacts with Texas? That is the single inquiry, since the contacts or status of others has no relevance at all for purposes of general jurisdiction only the contacts of Jones himself. See International Shoe, 326 U.S. at 319; Hanson, 357 U.S. at 253; Moki Mac, 221 S.W.3d at 575; Twister B.V., 2012 Tex. App. LEXIS 2833 at *15 n.3. APPELLANT S BRIEF PAGE 22

30 Jones is an individual residing in Memphis, Tennessee, where he has lived for 10 years, save for a short time when he lived in Mississippi, and he has never lived or worked in Texas [CR 43, 212]. He does not and has never owned any property in Texas or owned or operated any business in Texas [CR 43, 212]. He is employed by Pat Salmon & Sons driving trucks [CR 44, 213]. Although he has driven trucks through several states, he does not and has never had any regular route to or through Texas [CR 213]. During his years as a truck driver, he has passed through Texas on three occasions; twice while a Pat Salmon & Sons driver, substituting for another driver, when he drove through the Texas panhandle on the way to Denver; and once when he covered a route for a former employer taking him to Laredo [CR 44, 213]. Jones only other contacts with Texas are two trips to Fort Hood when he was required to go there as a part of his National Guard duties [CR 44, 213]. Jones has no family in Texas and has never even visited Texas for a vacation [CR 44, 213]. Jones only contacts with Texas were fortuitous and random, and certainly not continuous and systematic. 4 Jones has far too few contacts to meet the legal standard, and the contacts he does have are far to attenuated and sporadic to subject him to the jurisdiction of a Texas court. 4 Interestingly, even if Jones had continuous contacts with Texas, that would be insufficient as a matter of law to establish general jurisdiction. See Goodyear, 131 S.Ct. at APPELLANT S BRIEF PAGE 23

31 4. Exercise of Jurisdiction Over Jones in This Case Would Offend Traditional Notions of Fair Play and Substantial Justice. Even if there were sufficient contacts to support general or specific jurisdiction over Jones (which there clearly are not), the assumption of jurisdiction by the Court over Jones would offend the traditional notions of fair play and substantial justice, depriving Jones of due process as guaranteed by the Constitution of the United States. See Goodyear, 1131 S.Ct. at 2853; International Shoe, 326 U.S. at 316; Moki Mac, 221 S.W.3d at 575. Exercising jurisdiction over Jones here would be outrageous, since neither this accident not any of Jones past activities have any relationship to Texas at all. Forcing Jones to defend himself in a State fare from his home, especially a State that has absolutely no interest in any aspect of a trucking accident in Virginia, is offensive and burdensome. 5 This Court should decline to exercise jurisdiction over Jones because fair play and substantial justice would be offended; the burden on Jones would be excessive; the interests of Texas in adjudicating the dispute is virtually nonexistent; the Appellees interest in obtaining convenient and effective relief is minimal at 5 The true irony here is that Plaintiffs actually had Jones in a lawsuit (with his actual employer, Pat Salmon & Sons) in a Virginia federal court before they filed this action, but Plaintiffs chose to dismiss that action [CR ]. Clearly, a Virginia court could exercise specific jurisdiction over Jones, since the alleged accident actually took place there (and he regularly travels through Virginia on his trucking route with Pat Salmon & Sons). APPELLANT S BRIEF PAGE 24

32 best (since they not only had other forums in which to pursue this clam, they actually had a lawsuit in one of those forums that they voluntarily dismissed); the interstate judicial system s interest in obtaining the most efficient resolution of controversies certainly would not allow Texas to assert jurisdiction over a matter so disassociated from it in every way; and the shared interest of the states in furthering fundamental social policies would actually be diminished. See Guardian Royal, 815 S.W.2d at 231. CONCLUSION Jones is a truck driver. He works for Pat Salmon & Sons, Inc. when he is not on active duty with the United States Army. He lives in Tennessee, and works driving trucks up the East Coast. In his entire lifetime, he has been to Texas a total of five times twice he was stationed here as a part of his military service, twice he drove a load as a substitute driver and passed through the Texas panhandle on the way to Denver, and once he was a substitute driver taking a load to Laredo. In spite of this, Plaintiffs seek to force Jones to come to Texas to defend himself regarding an alleged truck accident that happened in Virginia, on a trip that had nothing to do with Texas in any way. The facts here simply cannot meet the constitutional requirements for asserting jurisdiction over Jones, since there is no general or specific jurisdiction here. APPELLANT S BRIEF PAGE 25

33 Moreover, the assumption of jurisdiction by a Texas court over Jones would offend the traditional notions of fair play and substantial justice, depriving Jones of due process as guaranteed by the Constitution of the United States. PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant, Timothy Darrell Jones prays that this Court reverse the Order of the trial court denying Jones Special Appearance, and render judgment dismissing Appellees claims against Jones for want of jurisdiction, and for such other and further relief to which this Appellant may show himself justly entitled. /s/ Kenneth J. Lambert KENNETH J. LAMBERT State Bar No PAUL W. BENNETT State Bar No N. Central Expwy., 16 th Floor Dallas, Texas (telephone) (facsimile) ATTORNEYS FOR APPELLANT TIMOTHY DARRELL JONES APPELLANT S BRIEF PAGE 26

34 CERTIFICATE OF SERVICE THIS WILL CERTIFY that a true and correct copy of the foregoing Brief has been served on the following by certified mail, return-receipt requested on the 29 th day of June, 2011, pursuant to the Texas Rules of Appellate Procedure: Douglas A. Allison Bradford P. Klager Law Offices of Douglas A. Allison 403 N. Tancahua Street Corpus Christi, Texas Counsel for Appellees Fernando Garza and Dora Garza /s/ Kenneth J. Lambert KENNETH J. LAMBERT APPELLANT S BRIEF PAGE 27

35 APPENDIX Order on Special Appearance (Timothy Darrell Jones) [CR 279]... Tab A Cornelison v. Chaney, 127 Cal. Rptr. 352 (Cal. 1976)... Tab B APPELLANT S BRIEF PAGE 28

36 TAB A

37

38 TAB B

39 Page 1 ODESSA CORNELISON, Plaintiff and Appellant, v. ROY DOUGLAS CHANEY, Defendant and Respondent L.A. No Supreme Court of California 16 Cal. 3d 143; 545 P.2d 264; 127 Cal. Rptr. 352; 1976 Cal. LEXIS 212 February 10, 1976 PRIOR HISTORY: Superior Court of Los Angeles County, No. C 40384, Charles H. Church, Judge. DISPOSITION: SUMMARY: The judgment is reversed. CALIFORNIA OFFICIAL REPORTS SUMMARY In a wrongful death action by a California resident against a Nebraska resident, arising out of an accident that occurred in Nevada, the trial court granted defendant's motion to quash out-of-state service of process made on him by mail and it dismissed the action. Defendant had been engaged, for 7 years preceding the accident, in the business of hauling goods by truck in interstate commerce, making approximately 20 trips a year to this state. The accident occurred near the California border while defendant was hauling goods to a manufacturer in this state. He intended to obtain cargo in California for a return shipment to an undesignated destination. He was licensed to haul freight in California as well as in several other states and he acted as an independent contractor for several brokerage companies engaged in shipping, one of which was in California. (Superior Court of Los Angeles County, No. C 40384, Charles H. Church, Judge.) The Supreme Court reversed, holding that, while defendant's activities in California were not so substantial or wide-ranging as to justify general jurisdiction over him to adjudicate all matters regardless of their relevance to plaintiff's cause of action, a substantial nexus was demonstrated between his California related activities and plaintiff's cause of action. After deciding that jurisdiction could be exercised, the court considered whether subjecting defendant to California jurisdiction would be fair and reasonable in the light of the inconvenience to him in defending an action in this state when balanced against the interests of plaintiff in suing locally and of the state in assuming jurisdiction. In that connection, the court pointed out that, though some of the witnesses who would testify at trial resided in Nevada, plaintiff was also a witness to the accident, that there was evidence in California on the amount of plaintiff's damages, that from the perspective of a Nebraska resident faced with litigation outside his state, there was little difference in the burden between defending in Nevada or California, and that California had an interest in providing a forum since plaintiff was a California resident. In conclusion, the court held that the interstate character of defendant's business, though not an independent basis for jurisdiction, was significant as a balancing factor. (Opinion by Mosk, J., with Wright, C. J., Tobriner and Sullivan, JJ., concurring. Separate dissenting opinion by Clark, J., with McComb and Richardson, JJ., concurring.) HEADNOTES CALIFORNIA OFFICIAL REPORTS HEAD- NOTES Classified to California Digest of Official Reports, 3d Series (1) Courts 17--In Personam Jurisdiction-- Nonresidents. --Jurisdiction may not be exercised over a nonresident unless his relationship to the forum state is such as to make the exercise of such jurisdiction reasonable. If a nonresident defendant's activities may be described as extensive or wide-ranging or substantial, continuous and systematic, there is a constitutionally sufficient relationship to warrant jurisdiction for all causes of action asserted against him and, in such circumstances, it is not necessary that the specific cause of action alleged

40 16 Cal. 3d 143, *; 545 P.2d 264, **; 127 Cal. Rptr. 352, ***; 1976 Cal. LEXIS 212 Page 2 be connected with the defendant's business relationship to the forum. (2) Courts 17--In Personam Jurisdiction-- Nonresidents. --If a nonresident defendant's activities in the forum state are not so pervasive as to justify the exercise of general jurisdiction over him, then jurisdiction depends on the quality and nature of his activity in the forum in relation to the particular cause of action. In such a situation, the cause of action must arise out of an act done or transaction consummated in the forum, or the defendant must perform some other act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws. The crucial inquiry concerns the character of the defendant's activity in the forum, whether the cause of action arises out of or has a substantial connection with that activity, and upon the balancing of the convenience of the parties and the interests of the state in assuming jurisdiction. (3a) (3b) Courts 17--In Personam Jurisdiction-- Nonresidents Served Outside of State. --The trial court erred in quashing process served by mail on defendant Nebraska resident in a wrongful death action brought by a California resident arising out of an accident on a Nevada highway, where, though defendant's activities in California were not so substantial or wide-ranging as to justify general jurisdiction over him to adjudicate all matters regardless of their relevance to plaintiff's cause of action, a substantial nexus between that cause of action and defendant's activities in California was demonstrated by the facts that his activities had brought him into the state almost twice a month for seven years as a trucker under a California license, that the accident arose out of the driving of the truck and occurred not far from the California border, and that defendant was bringing goods into California for a local manufacturer, intended to receive merchandise here for delivery elsewhere, and where a balancing of conveniences as between the parties demonstrated that due process would not be offended by subjecting defendant to the jurisdiction of the California courts. (4) Courts 17--In Personam Jurisdiction-- Nonresidents--Balancing Conveniences. --Where justification for the exercise of jurisdiction in a civil action over a defendant who resides in another state is not obvious, the convenience of the parties is a factor to be considered in determining whether it would be fair to exercise such jurisdiction. COUNSEL: Olney, Levy, Kaplan & Tenner and Jack Tenner for Plaintiff and Appellant. Williams & Black and Donald B. Black for Defendant and Respondent. JUDGES: In Bank. Opinion by Mosk, J., with Wright, C. J., Tobriner and Sullivan, JJ., concurring. Separate dissenting opinion by Clark, J., with McComb and Richardson, JJ., concurring. OPINION BY: MOSK OPINION [*146] [**265] [***353] The issue presented by this appeal is whether California, consistent with the due process clause of the United States Constitution, may assert jurisdiction over a nonresident individual whose essentially interstate business has a relationship to this state, but whose allegedly tortious acts occurred outside the state. Plaintiff is a California resident whose husband was killed in a highway collision with defendant's truck in Nevada, 27 miles south of Las Vegas, not far from the California border. Plaintiff was a witness to the accident. She filed a complaint in California alleging that his death was caused by defendant's negligence. Defendant is a resident and domiciliary of Nebraska and process was served upon him by mailing copies of the original summons and complaint to his residence in Nebraska. ( Code Civ. Proc., ) 1 Appearing specially and without submitting himself to the jurisdiction of the court, defendant moved that the issuance of the summons and the service be quashed because the court lacked jurisdiction over his person. ( Code Civ. Proc., , subd. (a)(1).) 2 The trial court granted the motion and dismissed the action on the ground that it had no jurisdiction over defendant because "the quality, extent and nature of the contacts of defendant... with the State of California, as it applies to the transaction giving [**266] [***354] rise to this cause of action, are not sufficient for jurisdiction of this Court to attach herein." 1 Section , subdivision (a), provides, "(a) A summons may be served by mail as provided in this section. A copy of the summons and of the complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender." 2 Section , subdivision (a)(1), provides, "(a) A defendant, on or before the last day of his time to plead or within such further time as the court may for good cause allow, may serve and file a notice of motion.... (1) To quash service