UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-40258
Summary Calendar
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TERRY L. O'QUINN,
Plaintiff-Appellant,
versus
WORLD INDUSTRIAL CONSTRUCTORS, INC.,
ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
(1:94 CV 179)
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September 19, 1995
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff Terry L. O'Quinn appeals the district court's order
granting Defendants', World Industrial Constructors, Inc., et al.
("World"), motion to dismiss for lack of personal jurisdiction. We
affirm.
World, a United States Virgin Islands corporation, entered
into a contract for the construction of an oil refinery in the
Virgin Islands. World then entered into a separate contract with
*
Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
Merit Industrial Constructors, Inc. ("Merit"), a Louisiana
corporation, to provide the labor and facilities necessary to
recruit construction workers in the contiguous United States for
the oil refinery job. The World-Merit contract explicitly states
that Merit does not have authority to hire, and that all hiring
will be done by World in the Virgin Islands.
Merit established an office in Texas City, Texas. O'Quinn
submitted an employment application to Merit's Texas office. Merit
arranged for O'Quinn to travel to Merit's Louisiana offices for
testing and then to World's facilities in the Virgin Islands, where
he was hired as a pipefitter. Shortly thereafter, O'Quinn
sustained a back injury in the course of his employment.
O'Quinn filed a negligence action against World and Merit in
the United States District Court for the Eastern District of Texas.
World and Merit filed alternative motions either to transfer venue
or to dismiss for lack of personal jurisdiction. The district
court granted World's motion to dismiss for lack of personal
jurisdiction. The court then granted O'Quinn's motion to
voluntarily dismiss the claims against Merit. O'Quinn appeals,
contending that the district court improperly granted World's
motion to dismiss for lack of personal jurisdiction.1
1
We review the district court's determination of personal jurisdiction
over nonresident defendants de novo. Command-Aire v. Ontario Mechanical Sales
& Serv., Inc., 963 F.2d 90, 93 (5th Cir. 1992). Disputed material facts must be
construed in the light most favorable to the plaintiff. Bullion v. Gillespie,
895 F.2d 213, 216 (5th Cir. 1990).
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A nonresident defendant is subject to personal jurisdiction in
a federal diversity suit to the extent that the law of the forum
state and constitutional due process considerations allow. Bullion
v. Gillespie, 895 F.2d 213, 215 (5th Cir. 1990). Both sides agree
that Texas law applies to the jurisdictional inquiry in this case.
Consequently, the personal jurisdiction of the district court
depends on the scope of the Texas long-arm statute.2 Texas courts
have interpreted the Texas long-arm statute to extend to the limits
of due process. Bearry v. Beech Aircraft Corp., 818 F.2d 370, 372
(5th Cir. 1987); U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d
760, 762 (Tex. 1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1235,
55 L.Ed. 763 (1978). Thus, personal jurisdiction over a
nonresident defendant under Texas law is determined by a
constitutional due process analysis. Bearry, 818 F.2d at 373.
Due process requires that federal courts assert personal
jurisdiction over nonresident defendants only in cases in which
(1) the defendant has purposefully established minimum contacts
with the forum state, and (2) jurisdiction over the defendant does
not offend traditional notions of fair play and substantial
justice. Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102,
112-113, 107 S.Ct. 1026, 1032-33, 94 L.Ed. 92 (1987). Personal
jurisdiction based on a minimum contacts analysis may be either
general or specific. Dalton v. R & W Marine, Inc., 897 F.2d 1359,
1361-62 (5th Cir. 1990). In this case, O'Quinn alleges only
specific personal jurisdiction.
2
Tex. Civ. Prac. & Rem. Code Ann. §§ 17.041-17.045 (West 1986).
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Specific jurisdiction is a two-prong inquiry. First, the
defendant must have purposefully availed himself of the forum
state, thereby seeking the benefits and protections of the laws of
the state. Bullion, 895 F.2d at 216. Second, the plaintiff's
cause of action must arise out of the defendant's contacts with the
forum state. Dalton, 897 F.2d at 1361.
Seeking to establish the purposeful availment prong of the
specific jurisdiction inquiry, O'Quinn first contends that personal
jurisdiction over World is proper in Texas because a principal-
agent relationship existed between World and Merit when Merit
established recruiting offices and performed recruiting services in
Texas. According to well-established law, a defendant may be found
subject to personal jurisdiction as a result of the actions of an
agent. Davis v. Asano Bussan Co., 212 F.2d 558, 563 (5th Cir.
1954); Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990). Under
Texas law, in order for a principal-agent relationship to be
established, the principal must have the right to control both the
means and the details of the process by which the agent
accomplishes the actions at issue.3 First Nat'l Bank of Fort Worth
v. Bullock, 584 S.W.2d 548, 551-52 (Tex.App.--Dallas 1979, writ
ref'd n.r.e.).
Although the World-Merit contract specifies that Merit is to
provide the labor and local facilities necessary to process
3
Under Texas law, agency is a mixed question of law and fact, freely
reviewable on appeal to the extent that the facts underlying the agency question
are undisputed. American International Trading Corp. v. Petroles Mexicanos, 835
F.2d 536, 539 (5th Cir. 1987).
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applications, World simply does not have contractual authority to
determine where such facilities are to be located. When Merit
established its office in Texas City, Merit purposefully availed
itself of the laws and protections of Texas. However, World did
not have sufficient control over the means or details of Merit's
actions to establish an agency relationship. See Matter of Carolin
Paxson Advertising, Inc., 938 F.2d 595, 598 (5th Cir. 1991)
(finding no agency relationship between advertising firm and
television station because of inadequate showing of right to
control). Thus, we find that Merit was not acting as an agent of
World while it operated its local office and conducted recruiting
services in Texas. Consequently, O'Quinn has not established the
contacts necessary to a finding of specific jurisdiction based on
agency theory.
In the alternative, O'Quinn argues that even if Merit was
acting only as an independent contractor of World, personal
jurisdiction over World was proper in Texas because O'Quinn's cause
of action arose out of Merit's activities in Texas. However, the
actions of an independent contractor in a forum state are not
sufficient, absent other contacts, to subject a nonresident
corporation to personal jurisdiction. Smith v. Piper Aircraft
Corp., 425 F.2d 823, 826 (5th Cir. 1970); see also Bearry, 818 F.2d
at 375-76 (holding manufacturer's maintenance of distribution
network in the forum insufficient to support finding of general
jurisdiction). O'Quinn does not allege any other contacts between
World and Texas. Thus, O'Quinn has not established that World,
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either directly or through an agent, purposely availed itself of
the benefits and protections of Texas. On this record, we hold
that O'Quinn has failed to establish specific personal jurisdiction
over World.4
Accordingly, we AFFIRM the order of the district court
granting World's motion to dismiss for lack of jurisdiction.
4
Since we do not find that there are sufficient contacts between World
and Texas to establish personal jurisdiction, we do not reach the separate
specific jurisdictional requirement that O'Quinn's cause of action arise out of
World's contacts with Texas. Nor do we reach the separate due process question
of whether the exercise of jurisdiction by a Texas court over World would comport
with traditional notions of fair play and substantial justice.
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