UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 97-20708
__________________
JOE H. SELF,
Plaintiff-Appellant,
versus
M&M CHEMICAL COMPANY; SOLITE CORPORATION; CHARLES HORTON,
Defendants-Appellees.
______________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-96-CV-2613)
______________________________________________
March 17, 1999
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Joe H. Self appeals from an order of the district court
dismissing his suit against M&M Chemical Company, Solite
Corporation, and Charles Horton (“Defendants”) for lack of
personal jurisdiction. Because we find that the district court
erred by failing to transfer this case to a venue that could
assert jurisdiction over the Defendants, we vacate the district
court’s judgment in part and remand.
Self’s suit is based upon injuries he received on August 15,
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1995, at a truck stop in Martinsburg, West Virginia. While Self
was kneeling next to his parked truck to adjust the tandem,
another truck backed up over Self’s foot, causing severe and
permanent injuries including damage to the spinal nerve roots in
his back. The other truck was driven by Horton, an Alabama
resident, who was working at the time for M&M Chemical, an
Alabama corporation, which is a subsidiary of Solite, a Virginia
corporation.
On August 15, 1996, Self, a Texas resident, filed a personal
injury suit against Horton, M&M Chemical, and Solite in the
Southern District of Texas, Houston Division, under that court’s
diversity jurisdiction. Self’s complaint alleged that Horton was
liable for negligence and that M&M Chemical and Solite were
vicariously liable for Horton’s negligence under the law of
respondeat superior and directly liable for failure to train and
supervise. Self sought damages for physical pain, emotional
distress, medical expenses, loss of earnings, and physical
impairment.
On October 11, 1996, the Defendants filed a Rule 12(b)(2)
motion to dismiss for lack of personal jurisdiction, arguing that
none of the Defendants had sufficient Texas contacts to bring
them within the reach of the state’s long-arm statute. They
asserted that neither Horton nor Solite had any contacts with
Texas. As to M&M Chemical, an attached affidavit from the
company’s president, Don Burris, attested that M&M Chemical’s
truckers had transported “no more than seven loads to or from the
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State of Texas over the last ten years.” These contacts, the
motion contended, were insufficient to establish general
jurisdiction in Texas over M&M Chemical. Self’s response to the
12(b)(2) motion contended that the district court did have
personal jurisdiction over all three of the Defendants under
Texas’s long-arm statute. Alternatively, Self requested that, if
the court found personal jurisdiction lacking in Texas, it
transfer the case to a forum that could assert jurisdiction.
On July 14, 1997, the district court granted the Defendants’
motion to dismiss for lack of personal jurisdiction. The court
found that it clearly did not have jurisdiction over Horton and
Solite as neither had any contacts with Texas. It also found
that it did not have jurisdiction over M&M Chemical because seven
deliveries over a ten-year period was too brief and intermittent
to constitute the “continuous and systematic” contacts necessary
to subject M&M Chemical to general jurisdiction in Texas.
The district court also rejected Self’s request that the
court transfer the case to a proper venue instead of dismissing
it. Although the court acknowledged its statutory authorization
to order a transfer, it found that Self had not shown that a
transfer in this case was warranted. First, the court noted that
Self had failed to identify a specific district where the action
could be relocated. Second, the court held that because Self had
brought the suit in a forum that had no contacts with two of the
Defendants and only tenuous contacts with the third, transfer
would improperly reward him for his lack of diligence in
3
selecting a proper forum from the outset.
On July 31, 1997, Self filed a motion for a new trial
pursuant to Federal Rule of Civil Procedure 59, and on August 11,
1997, he filed a motion for relief from judgment under Rule
60(b). In both motions, Self argued that newly discovered
evidence supported his claim that there was jurisdiction over the
Defendants in Texas. Specifically, Self directed the court to a
July 2 deposition of Barron Durden, M&M Chemical’s trucking
superintendent. Durden testified that M&M Chemical had made
eighteen deliveries to Texas between 1995 and 1997, which was
many more than the seven deliveries over ten years Dan Burris
described in his affidavit and the court relied upon in its
decision. The motions also stated that Self had been preparing
to supplement his response to the dismissal motion with this
recently obtained evidence when the order dismissing his case was
entered.
On August 14, 1997, while the Rule 59 and 60(b) motions were
still pending, Self filed a notice of appeal from the district
court’s dismissal order. On October 2, 1997, he also filed with
the district court a supplemental motion to transfer the case to
the Northern District of Alabama. The district court denied
Self’s Rule 59 and Rule 60(b) motions on March 29, 1998, and two
days later denied his supplemental transfer motion. Self neither
filed a new notice of appeal nor amended his previously filed
notice to include any of the post-dismissal rulings.
DISCUSSION
4
On appeal, Self argues that the district court erred by (1)
finding that it could not exercise personal jurisdiction over the
Defendants, (2) refusing to transfer the case to the Northern
District of Alabama, (3) denying his Rule 59 motion for a new
trial, and (4) denying his Rule 60(b) motion for relief from
judgment. We review de novo a district court’s determination
that it lacks jurisdiction over a non-resident defendant, see
Allred v. Moore & Peterson, 117 F.3d 278, 281 (5th Cir. 1997),
whereas we review only for abuse of discretion a district court’s
refusal to transfer a case, see Peteet v. Dow Chemical Co., 868
F.2d 1428, 1436 (5th Cir. 1989), denial of a motion for a new
trial, see Hidden Oaks Limited v. City of Austin, 138 F.3d 1036,
1049 (5th Cir. 1988), or denial of a motion for relief from
judgment under Rule 60(b), see First Nationwide Bank v. Summer
House Joint Venture, 902 F.2d 1197, 1200 (5th Cir. 1990).
I. Personal Jurisdiction
We find that the district court did not err in holding that
it could not assert personal jurisdiction over the Defendants. A
federal court has jurisdiction over nonresident defendants in a
diversity suit to the same extent that a state court in that
forum would have jurisdiction. See Wilson v. Belin, 20 F.3d 644,
646 (5th Cir. 1994). A state court’s jurisdiction is delimited
by the state’s long-arm statute and the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. See
Bullion v. Gillespie, 895 F.2d 213, 216 (5th Cir. 1990). Because
5
Texas’s long-arm statute, Tex. Civ. Prac. & Rem. Code Ann. §
17.042, has been interpreted by the Texas courts as being
coextensive with due process, see Schlobohm v. Schapiro, 784
S.W.2d 355, 357 (Tex. 1990), we review any exercise of
jurisdiction over nonresident defendants by a federal district
court in Texas with reference only to the federal constitutional
limitations.
An exercise of jurisdiction over a nonresident defendant
comports with due process when two conditions are met. First,
the nonresident defendant must have “purposefully availed himself
of the benefits and protections of the forum state by
establishing ‘minimum contacts’ with that forum state.” Belin,
20 F.3d at 647 (quoting International Shoe Co. v. Washington, 326
U.S. 310, 316 (1945)). Second, exercising jurisdiction “must not
offend ‘traditional notions of fair play and substantial
justice.’” Id. (quoting Asahi Metal Indus. Co. v. Superior
Court, 480 U.S. 102, 113 (1987)). Additionally, where the
plaintiff’s claims did not arise out of any of the defendant’s
contacts with the forum state, as is the undisputed situation in
this case, the plaintiff may bring suit in the forum’s courts
only if those courts can assert general jurisdiction over the
defendant. For general jurisdiction to attach, due process
requires that a nonresident defendant’s “minimum contacts” with
the forum state be “continuous and systematic.” Helicopteros
Nacionales De Colombia v. Hall, 466 U.S. 408, 415-16 (1984).
It was Self’s burden to present to the district court facts
6
sufficient to establish a case for personal jurisdiction over the
Defendants. See Bullion, 895 F.2d at 216-17 (quoting WNS, Inc.
v. Farrow, 884 F.2d 200, 203 (5th Cir. 1989)). Because the court
made its jurisdictional ruling without an evidentiary hearing,
Self’s burden could be met by showing only a prima facie case,
although that burden would rise to a preponderance of the
evidence at trial. See Felch, 92 F.3d at 326. In deciding
whether Self had established a prima facie case, the district
court was required to take uncontroverted allegations in Self’s
complaint as being true and to resolve all conflicts contained in
the parties’ affidavits in Self’s favor. See Bullion, 895 F.2d
at 217.
The district court correctly applied these standards in
finding that Self did not establish a prima facie case of
personal jurisdiction in Texas over M&M Chemical. Self’s
complaint did not allege any specific contacts between M&M
Chemical and Texas. Furthermore, the only contacts revealed by
the parties’ affidavits were M&M Chemical’s “no more than seven”
deliveries to Texas over a ten year period, attested to by M&M
Chemical’s president, Don Burris.1 Although we have found
evidence of an unspecified number of deliveries sufficient to
establish a prima facie case of “minimum contacts” in at least
1
Although the discovery performed by Self immediately
preceding the district court’s ruling revealed Burris may have
underestimated the number of Texas deliveries made by M&M Chemical,
that information had not been presented to the district court prior
to its finding that personal jurisdiction was lacking and thus
cannot be considered by this Court on review of that decision.
7
one context, see DeMelo v. Touche Marine, Inc., 711 F.2d 1260,
1271 & n.13 (1983) (finding a prima facie case for personal
jurisdiction based upon an affidavit indicating an unspecified
number of product shipments into Mississippi), the greater weight
of authority from this circuit suggests that seven deliveries
over ten years was not sufficiently “continuous and systematic”
to subject M&M Chemical to general jurisdiction. See Felch v.
Transportes Lar-Mex SA DE CV, 92 F.3d 320, 328 (5th Cir. 1996)
(finding that an unspecified number of truck deliveries into
Texas is not sufficiently “continuous and systematic” to create
general jurisdiction in Texas); Dalton v. R & W Marine, Inc., 897
F.2d 1359, (5th Cir. 1990) (finding that being title record
holder to charter boats operated in Louisiana was not
sufficiently “continuous and systemic” to create general
jurisdiction in Louisiana); Bearry v. Beech Aircraft Corp., 818
F.2d 370, 375-76 (5th Cir. 1987) (finding that substantial sales
through Texas dealers were not sufficiently “continuous and
systematic” to subject an airplane manufacturer to general
jurisdiction in Texas). Based upon that precedent, we find that
the district court properly found that Self had not established a
prima facie case for general jurisdiction over M&M Chemical.
The district court also properly applied the due process
factors in finding that it could not assert general jurisdiction
over Horton. Neither Self’s complaint nor any of the affidavits
describe or suggest any contacts between Horton and Texas.
Without any allegations or evidence presented, the court was
8
clearly correct in finding that a prima facie case for general
jurisdiction over Horton was not established.
Although we likewise affirm the district court’s finding
that it could not assert general jurisdiction over Solite, we are
unable to do so on the court’s asserted basis that Solite had
“absolutely no contacts with Texas.” Self alleged in his
complaint that “Defendant M&M . . . is the alter ego of Defendant
Solite.” This allegation was not refuted in any of the
Defendants’ affidavits,2 and the district court was therefore
required to accept it as true in making its preliminary
jurisdictional ruling. When two defendant corporations are
established as being alter egos, the contacts of each are
attributed to both for jurisdictional purposes. See Gundle
Lining Construction Corp. v. Adams County Asphalt, Inc., 85 F.3d
201, 208 (5th Cir. 1996). Thus, in this situation, without any
evidence refuting Self’s allegation, the district court was
required to impute all of M&M Chemical’s contacts to Solite.
Nevertheless, because M&M Chemical’s contacts were insufficient
to establish general jurisdiction, we ultimately agree with the
district court that Self did not establish a prima facie case for
asserting general jurisdiction over Solite either.
II. Transfer
We find that the district court abused its discretion in
2
In an affidavit attached to the Defendants’ motion to
dismiss, J. Wayne Thornton, a vice president of Solite, did attest
that Solite, itself, did not have any contacts with Texas.
Thornton’s affidavit was silent, however, regarding the alleged
alter ego relationship between Solite and M&M Chemical.
9
denying Self’s request that, upon a finding that the Defendants
were not amenable to personal jurisdiction in Texas, the case be
transferred to another venue instead of dismissed. A district
court in which a jurisdictionally improper case is filed is
empowered by 28 U.S.C. § 1404(a) or § 1406(a) either to dismiss
the case or, “if it be in the interest of justice,” to transfer
it to another venue where jurisdiction may be had. See Goldlawr,
Inc. v. Heiman, 369 U.S. 463, 465-66 (1962); Bentz v. Recile, 778
F.2d 1026, 1028 (5th Cir. 1985). The congressional purpose in
allowing such transfers, as stated by the Supreme Court in
Goldlawr, was to “avoid[] the injustice which had often resulted
to plaintiffs from dismissal of their actions merely because they
had made an erroneous guess with regard to the existence of some
elusive fact.” Goldlawr, 369 U.S. at 466.
Neither of the district court’s reasons for refusing to
transfer Self’s case were sufficient to overcome the injustice
Self faced by having his suit extinguished by the court’s
dismissal. First, Self’s failure to identify a specific
transferee court in his original response to the motion to
dismiss was, at most, a de minimis error. We are aware of no
other court that has attached weight to such an omission.
Moreover, it was obvious from the facts of this case that courts
in both West Virginia and Alabama would likely be able to assert
jurisdiction over all of the Defendants. The district court
could easily have identified a suitable transferee district
either sua sponte or through supplemental briefing by the
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parties.
Second, we do not agree with the district court that
granting a transfer would have rewarded Self for lack of
diligence in choosing a proper forum from the outset. As
discussed above, M&M Chemical initially admitted to several
contacts with Texas and, for purposes of the motion to dismiss,
those contacts should have been imputed to Solite as well.
Although we are affirming the district court on its
jurisdictional ruling, this was a close case in which it was
reasonable for Self to have guessed that M&M Chemical, a national
hazardous waste disposal company, would have had “continuous and
systematic” contacts with Texas. Dismissing Self’s action based
on his having been unable to find sufficient evidence to support
his guess regarding that elusive jurisdictional fact would impose
the very injustice that Congress intended to alleviate by
permitting transfers under § 1404(a) and § 1406(a).3 It was,
therefore, an abuse of discretion for the district court to have
dismissed the case instead of granting Self’s request for a
3
We also note that the district court chose to dismiss Self’s
complaint seven weeks before the discovery deadline contained in
its own scheduling order. Although a district court is not
required to wait until discovery is completed before ruling on
jurisdictional motions, see Patterson v. Dietze, Inc., 764 F.2d
1145, 1147 & n.4 (5th Cir. 1985), we reject any suggestion that
Self, by utilizing the full time provided for discovery by the
district court, was not diligent in pursuing the facts necessary to
support the court’s exercise of jurisdiction. Moreover, we observe
that had the district court postponed ruling on the dismissal
motion for the few remaining weeks in the discovery period, it
could have considered the additional testimony Self obtained in the
July 2 deposition of Barron Durden, which contradicted the
affidavit of Don Burris relied upon by the court in its decision.
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transfer.
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III. Rule 59 and 60(b) Motions
We decline to consider Self’s arguments that the district
court erred by rejecting his Rule 59 motion for a new trial and
Rule 60(b) motion for relief from judgment. Because Self filed
his notice of appeal before the district court ruled on either of
those motions and did not amend his notice to include the court’s
rulings after they were made, they were not appealed and are not
properly before this court.
CONCLUSION
For the foregoing reasons, we affirm the district court’s
decision insofar as it found that the Defendants are not amenable
to personal jurisdiction in Texas. Nonetheless, we vacate the
district court’s dismissal of Self’s complaint and remand with
instructions to transfer this case to a suitable venue where
jurisdiction may be had over the Defendants.
AFFIRMED in part, VACATED in part, and REMANDED
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