Personal Jurisdiction

• Author: Scott Brister (Ret.)/Dan S. Boyd
• Pages: 345-414

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Chapter 8

PERSONAL JURISDICTION

QUICK VIEW

Definition: Personal or in personam jurisdiction is the power of the court to render a judgment that binds the

litigants. A judgment of a court without personal jurisdiction is void.

Scope of chapter: Jurisdiction based on presence; jurisdiction based on consent; long-arm jurisdiction; federal

due process requirements; pleading jurisdiction; challenging jurisdiction by special appearance.

Strategies and tactics: In most cases whether personal jurisdiction exists is clear. But the outcome can be dif-

ficult to predict in close cases as each case turns on its facts. A nonresident defendant’s counsel should consider

filing a special appearance to contest personal jurisdiction before filing an answer, making an appearance on

extraordinary motions, or taking any other action in court. A defendant has the burden to establish that he or she

is not subject to personal jurisdiction. To make this showing, defense counsel must consider the extent of the

defendant’s contacts with Texas, the relationship between defendant’s Texas contacts and the claims asserted,

and whether defendant purposefully initiated those contacts.

Statutes and rules: CPRC §§17.041, 17.042; TRCP 120a.

Related topics: Subject Matter Jurisdiction, Ch 7; Venue, Ch 9; Service of Process, Ch. 10; Motion Practice,

Ch 16; Attacking the Pleadings, Ch 15; Defaults and Dismissals, Ch 37.

TABLE OF CONTENTS

I. General Points

A. Overview

§8:01 Necessary for Adjudication

§8:02 In Personam, in Rem, Quasi in Rem, and Status Jurisdiction

§8:03 General & Specific Jurisdiction

§8:04 Jurisdiction Over Plaintiffs

§8:05 Jurisdiction Over Defendants

§8:06 Necessary as to Each Defendant

§8:07 CAVEAT: Difficulty of Determining Personal Jurisdiction

B. Related Concepts

§8:12 COMPARE: Venue

§8:13 COMPARE: Forum Non Conveniens

§8:14 COMPARE: Defective Service of Process

§8:15 COMPARE: Comity

(Rev. 10, 4/13)

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TEXAS PRETRIAL PRACTICE 8-2

II. Federal Due-Process Limits

A. General Points

§8:20 Due Process Limits Jurisdiction

§8:21 Constitutional Test: Minimum Contacts and Fairness

§8:22 Timing: Contacts Until Claim Filed

§8:23 Timing: Contacts Before Claim Arose

§8:24 Timing: Contact Throughout Suit Not Required

§8:25 Plaintiff’s Domicile and Contacts With Forum Usually Irrelevant

B. Minimum Contacts

1. GENERAL POINTS

§8:30 Minimum Contacts Test Is Usually Determinative

§8:31 Purpose of Requiring Minimum Contacts

§8:32 Quality vs. Quantity

§8:33 Current Contacts Vs. Future Plans

2. PURPOSEFUL AVAILMENT

§8:38 Meaning of Purposeful Availment

§8:39 Defendant Must Be the One Directing Activity to Texas

§8:40 Contacts Cannot Be Random or Fortuitous

§8:41 Substantial Connection

§8:42 Foreseeability of Jurisdiction, Not of Occurrence

§8:43 CASE EXAMPLES: Facts Constituting Purposeful Availment

§8:44 CASE EXAMPLES: Facts Not Constituting Purposeful Availment

3. GENERAL AND SPECIFIC JURISDICTION

§8:50 General Jurisdiction: Continuous, Substantial Contacts Required

§8:51 CASE EXAMPLES: Sufficient Contacts for General Jurisdiction

§8:52 CASE EXAMPLES: Insufficient Contacts for General Jurisdiction

§8:53 Specific Jurisdiction: Claims Arising from Occasional Contacts

§8:54 CASE EXAMPLES: Claims Arising from Texas Contacts

§8:55 CASE EXAMPLES: Claims Not Arising from Texas Contacts

§8:56 CASE EXAMPLES: Sufficient Contacts for Specific Jurisdiction

§8:57 CASE EXAMPLES: Insufficient Contacts for Specific Jurisdiction

C. Fair Play and Substantial Justice

1. GENERAL POINTS

§8:62 Requirement

§8:63 Stiff Burden of Proof on Nonresident Defendant

§8:64 Factors

2. BURDEN ANALYSIS

§8:70 Basic Considerations

§8:71 When Litigants Have History of Travel

§8:72 When Defendants Are U.S. Residents

§8:73 When All Litigants Are Residents of Other States

§8:74 When Defendants Are Foreign Nationals

3. INTEREST OF TEXAS

§8:80 When Texas Has an Interest

§8:81 Basic Considerations

§8:82 Activities Needing Protection

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4. CONVENIENCE AND EFFICIENCY

§8:88 Convenience and Efficiency for Plaintiff

§8:89 Judicial Efficiency

5. SOCIAL POLICY

§8:94 Interstate and International Policy

§8:95 CASE EXAMPLES: Fair Play Offended

III. Jurisdiction Based on Presence

A. General Points

§8:100 Presence Confers General Jurisdiction

§8:101 Test of “Presence”

B. Individuals

1. TEXAS RESIDENTS

§8:106 Residents Are Subject to Personal Jurisdiction

§8:107 Determined When Cause of Action Arose

§8:108 Plaintiff’s Residence Not Required

§8:109 Service Outside Texas Permitted

2. NONRESIDENT IN TEXAS WHEN SERVED

§8:114 Service on Nonresident Within Texas Establishes Personal Jurisdiction

§8:115 Minimum Contacts Required?

§8:116 No Exception for Judicial Proceedings or Fraud?

3. NONRESIDENT DOING BUSINESS IN TEXAS

§8:120 Must Meet Long-Arm Requirements

C. Corporations

§8:126 Corporation “Present” Where It Has Constitutional Contacts

§8:127 Texas Corporations

§8:128 Foreign Corporations With Principal Place of Business in Texas

§8:129 Officers and Directors of Texas Corporations

§8:130 Foreign Corporations Generally

§8:131 Foreign Corporations Authorized to Do Business in Texas

§8:132 No Service on Corporate Officer While Present in Texas

§8:133 Affiliated Corporations Assessed Individually

IV. Jurisdiction Based on Consent

A. Contractual Consent

§8:138 Types of Consent Clauses

§8:139 Consent by Forum Selection Clause

§8:140 Scope of Forum Selection Clause

§8:141 Consent Not Subject to Minimum Contacts Test

§8:142 Contractual Consent Clause May Protect Nonparties

§8:143 Limits on Contractual Consent

§8:144 Factors in Determining Enforceability: Commercial Contracts

§8:145 Factors in Determining Enforceability: Consumer Contracts

§8:146 Exclusive Forum Selection Clause Can Be Waived

§8:147 Forum Selection Clause as Evidence of Minimum Contacts

§8:148 IN PRACTICE: Asserting Forum Selection Clause

§8:149 COMPARE: Choice-of-Law Clause

§8:150 Arbitration Agreement

(Rev. 10, 4/13)

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