Chapter 23-3 Pleading Personal Jurisdiction over Nonresident Defendants

• Jurisdiction: United States

23-3 Pleading Personal Jurisdiction over Nonresident Defendants

When defendants residing outside of Texas are being sued, special pleading requirements come into play to establish personal jurisdiction. The Texas rule relating to proof of personal jurisdiction differs from the federal rule, placing the burden on the defendant to negate personal jurisdiction rather than placing the burden on the plaintiff to establish personal jurisdiction over the defendant.³³ Nevertheless, the plaintiff in a Texas state court still effectively has two pleading burdens relating to a nonresident defendant.

First, "[t]he plaintiff bears the initial burden of pleading allegations sufficient to bring a nonresident defendant within the provisions of the long-arm statute,"³⁴ if service is being accomplished through the long-arm statute. Second, the plaintiff has the burden to plead the bases for asserting personal jurisdiction, because the defendant's burden of proof is to "negate all the bases of personal jurisdiction alleged by the plaintiff."³⁵

With regard to the first pleading burden, a nonresident defendant is not required to be served through use of a Texas long-arm statute, since service through Tex. R. Civ. P. 108 (service in another state) or 108a (service of process in foreign countries) is a viable alternative. But if service via a Texas long-arm statute is employed, it is necessary to plead the specifics as to why the particular long-arm statute is applicable to the particular nonresident defendant, since each long-arm statute is only applicable to a specified category of nonresident defendants.³⁶ For example, Texas Civil Practice and Remedies Code Section 17.044 authorizes substituted service on the secretary of state for nonresident defendants who qualify for any one of several specified reasons, but not for all nonresident defendants generally.³⁷ The Texas Supreme Court has held that when a long-arm statute is relied upon for service without a recitation of facts in the petition demonstrating why the long-arm statute applies to the specific defendant, there is a lack of jurisdiction apparent on the face of the record.³⁸ The proper facts can be alleged by simply tracking the statutory grounds set forth in the statute. Of course, since issues of both personal jurisdiction and proper service can be waived by the defendant, a failure to plead facts showing why a long-arm statute is applicable will not be a problem if the defendant simply answers the lawsuit.

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