Wilson v. Belin

United States Court of Appeals,

Fifth Circuit.

No. 93-1907

Summary Calendar.

Thomas W. WILSON, Plaintiff-Appellant,

v.

Davis W. BELIN and G. Robert Blakey, Defendants-Appellees.

May 13, 1994.

Appeal from the United States District Court for the Northern
District of Texas.

Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The question presented in this case is whether a federal

district court sitting in Texas has personal jurisdiction over two

out-of-state defendants. In fact, none of the parties are Texas

residents. The plaintiff, a Pennsylvania resident, filed this

defamation suit in Texas state court against an Indiana resident

and an Iowa resident. The genesis of this lawsuit is in a speech

the plaintiff made in Dallas concerning the Kennedy assassination.

A Dallas reporter telephoned the defendants in Indiana and Iowa,

respectively, for a response to the speech. The reporter then

purportedly quoted the defendants' reactions in a newspaper

article. The plaintiff claims that the defendants' negative

remarks libeled him in Texas. After removal, the federal district

court dismissed the case for lack of personal jurisdiction. We

affirm.

I

1
 The plaintiff, Thomas W. Wilson, is a Pennsylvania resident,

who used photographic image processing technology in his job as an

engineer for U.S. Steel Corporation. Wilson began applying certain

imaging technology—on his own time—to photographs of the

assassination of President John F. Kennedy. Wilson claimed that

his computer enhancements revealed a second gunman on the "grassy

knoll" and revealed that a photograph of Lee Harvey Oswald with a

rifle had been tampered with. On November 15, 1991, Wilson spoke

at a symposium in Dallas, Texas, on the Kennedy assassination and

presented his "revelations."

During the symposium, Mark Potok, a reporter for the Dallas

Times Herald, telephoned Robert Blakey, who served as chief counsel

and staff director of the House Select Committee on Assassinations,

to discuss Wilson's conclusions. The reporter also called David

Belin, who served as assistant counsel to the Warren Commission to

discuss Wilson's comments. Both Blakey and Belin received the

calls in their respective states of residence—Indiana and Iowa.

On November 16, 1991, the Dallas Times Herald published an

article written by Mr. Potok that quoted Mr. Blakey as saying, "You

know the saying among computer people, "Garbage in, garbage out?'

This is garbage." The article quoted Mr. Belin as saying, "It's a

series of massive lies. The man is basically making an outrageous

claim."

II

On September 3, 1992, Wilson filed a bill of discovery in

Texas state court to depose Potok to determine if he misquoted

2
Blakey and Belin before instituting suit against them. On November

13, Wilson filed a defamation suit against Blakey and Belin in

Texas state court. The suit and the original petition were

received by the Texas Secretary of State, as agents for the

nonresidents, on November 23. On December 22, Blakey and Belin

filed a joint notice of removal citing diversity of citizenship.

On September 2, 1993, the district court granted Blakey and

Wilson's motion to dismiss the case on the grounds that the court

lacked specific and general personal jurisdiction over them.

Wilson filed this appeal.

III

In a diversity suit, a federal court has personal

jurisdiction over a nonresident defendant to the same extent that

a state court in that forum has such jurisdiction. Bullion v.

Gillespie, 895 F.2d 213, 215 (5th Cir.1990); Fed.R.Civ.P. 4(e).

The reach of this jurisdiction is delimited by: (1) the state's

long-arm statute; and (2) the Due Process Clause of the Fourteenth

Amendment to the federal Constitution. Bullion, 895 F.2d at 215.

Because the Texas long-arm statute extends to the limits of federal

due process,1 our two-step inquiry is reduced to an analysis of

1
The Texas long-arm statute authorizes the exercise of
jurisdiction over nonresidents "doing business," which includes
committing a tort in whole or in part, in Texas. Tex.Civ.Prac. &
Rem.Code Ann. § 17.02 (Vernon 1986). The Texas Supreme Court has
interpreted the "doing business" requirement broadly, allowing
the long-arm statute to reach as far as the federal Constitution
permits. Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990).
Further, for purposes of the jurisdictional issue only, Blakey
and Belin concede that a tort was committed in whole or in part
in Texas via the publication of the newspaper article in a Texas
newspaper. Thus, the outcome of this case turns wholly on the

3
whether requiring Blakey and Belin to defend a defamation suit in

Texas would impinge on their individual liberty interests—not to be

subjected to suits in a distant forum with which they have little

connection—that are protected by the Due Process Clause.2 See

Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456

U.S. 694, 702 n. 10, 102 S.Ct. 2099, 2104 n. 10, 72 L.Ed.2d 492

(1982) (stating that the restriction on state power to subject a

nonresident to suit is "ultimately a function of the individual

liberty interest preserved by the Due Process Clause").

The exercise of personal jurisdiction over a nonresident will

not violate due process principles if two requirements 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.

International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct.

154, 158, 90 L.Ed. 95 (1945); Bullion, 895 F.2d at 216. And

second, the exercise of jurisdiction over the nonresident defendant

must not offend "traditional notions of fair play and substantial

justice." Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102,

113, 107 S.Ct. 1026, 1033, 94 L.Ed.2d 92 (1987) (citing

International Shoe, 326 U.S. at 316, 66 S.Ct. at 158).

The "minimum contacts" prong of the inquiry may be further

subdivided into contacts that give rise to "specific" personal

federal constitutional reach of personal jurisdiction.
2
The Due Process Clause provides, "[N]or shall any State
deprive any person of life, liberty, or property, without due
process of law." U.S. Const. amend. XIV, § 1.

4
jurisdiction and those that give rise to "general" personal

jurisdiction. Specific jurisdiction is appropriate when the

nonresident defendant's contacts with the forum state arise from,

or are directly related to, the cause of action. Helicopteros

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104

S.Ct. 1868, 1872 n. 8, 80 L.Ed.2d 404 (1984); Bullion, 895 F.2d at

216. General jurisdiction, however, will attach, even if the

nonresident defendant's contacts with the forum state are not

directly related to the cause of action, if the defendant's

contacts with the forum state are both "continuous and systematic."

Helicopteros, 466 U.S. at 414 n. 9, 104 S.Ct. at 1872 n. 9;

Bullion, 895 F.2d at 216.

If a nonresident defendant has sufficient related or

unrelated minimum contacts with the forum, we must then consider

whether the "fairness" prong of the jurisdictional inquiry is

satisfied. See Asahi, 480 U.S. at 105, 107 S.Ct. at 1033;

Bullion, 895 F.2d at 216. The Supreme Court has stated that the

"fairness" of requiring a nonresident to defend a suit in a distant

forum is a function of several factors, including the "interests of

the forum State."3 Asahi, 480 U.S. at 113, 107 S.Ct. at 1033.

3
The factors considered in the fairness inquiry are:

[T]he burden upon the nonresident defendant; (2) the
interests of the forum state; (3) the plaintiff's
interest in securing relief; (4) "the interstate
judicial system's interest in obtaining the most
efficient resolution of controversies"; and (5) "the
shared interest of the several States in furthering
fundamental substantive social policies."

Bullion, 895 F.2d at 216 n. 5 (citing Asahi, 480 U.S. at

5
 IV

When the facts are not in dispute, we review de novo a

district court's determination that its exercise of personal

jurisdiction over a nonresident defendant is proper. Bullion, 895

F.2d at 216. "When a nonresident defendant presents a motion to

dismiss for lack of personal jurisdiction, the plaintiff bears the

burden of establishing the district court's jurisdiction over the

nonresident." Stuart v. Spademan, 772 F.2d 1185, 1192 (5th

Cir.1985). When the district court rules on the motion without an

evidentiary hearing, the plaintiff may bear his burden by

presenting a prima facie case that personal jurisdiction is proper.

Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th

Cir.1985). "Moreover, on a motion to dismiss for lack of

jurisdiction, uncontroverted allegations in the plaintiff's

complaint must be taken as true, and conflicts between the facts

contained in the parties' affidavits must be resolved in the

plaintiff's favor for purposes of determining whether a prima facie

case for personal jurisdiction exists." Bullion, 895 F.2d at 217

(quoting D.J. Investments, Inc. v. Metzeler Motorcycle Tire Agent

Gregg, Inc., 754 F.2d 542, 545 (5th Cir.1985)).

A

Wilson first argues that the district court had specific

personal jurisdiction over Blakey and Belin because each of them

spoke with a Texas newspaper reporter and thus reasonably could

113, 107 S.Ct. at 1033 (quoting World-Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 563, 62
L.Ed.2d 490 (1980))).

6
foresee that their defamatory comments would be published in Texas

and injure Wilson's reputation in Texas. Wilson argues that Calder

v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 1487, 79 L.Ed.2d 804

(1984) clearly stands for the proposition that whenever the effects

of libel by a nonresident are felt in the forum state, specific

jurisdiction exists. We believe Wilson reads Calder too broadly.4

In Calder, 465 U.S. at 788-90, 104 S.Ct. at 1486-87, a

reporter for a Florida publication researched a story in

California, wrote a story about a California resident whose career

was centered in California, and provided that story to his (the

defendant reporter's) employer, which had a substantial portion of

its national circulation in California. The Court stated that the

defendants' (the reporter's and his editor's) "actions were

expressly aimed at California" because they wrote and edited "an

article that they knew would have a potentially devastating impact

upon [the plaintiff in California]." Id. at 789, 104 S.Ct. at

1487. In the instant case, however, neither Blakey nor Belin did

any preparation for a story to defame the plaintiff. They did not

even write or devise a story. They did no research regarding

Wilson's theory in Texas or elsewhere. Furthermore, there is no

indication that these defendants were paid for their comments, that

their comments were part of a planned business venture, or that

such unsolicited comments served any role in advancing their

4
We also note that First Amendment considerations regarding
the defendants' abilities to inject their respective opinions
into the marketplace of ideas on a topic of obvious public
concern are not relevant to our wholly jurisdictional inquiry.
Calder, 465 U.S. at 790-91, 104 S.Ct. at 1487-88.

7
business careers. Finally, the plaintiff, Wilson, is not a Texas

resident and his career is not centered there. Thus, the

dispositive facts in Calder simply are absent from this case.

Wilson also places great weight on the premise that a libelous

tort is deemed to have occurred where the offending material is

circulated. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770,

777, 104 S.Ct. 1473, 1479, 79 L.Ed.2d 790 (1984) (citing

Restatement (Second) of Torts § 577A, Comment a (1977)). This

principle alone, however, will not win the day for Wilson. That

the tort is deemed to have occurred in whole or in part in Texas is

simply not dispositive of whether jurisdiction is appropriate. See

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 288-89, 100

S.Ct. 559, 562-63, 62 L.Ed.2d 490 (1980) (holding that although

tort occurred in Oklahoma, New York defendant was not subject to

personal jurisdiction in Oklahoma by nonresident plaintiff).

Wilson also argues foreseeability as a basis for specific

personal jurisdiction. The defendants, he argues, could foresee

that the defamatory remarks would be published in Texas. The

Supreme Court has stated, however, that:

"[F]oreseeability" alone has never been a sufficient benchmark
for personal jurisdiction under the Due Process Clause....
[T]he foreseeability that is critical to due process analysis
is ... that the defendant's conduct and connection with the
forum State are such that he should reasonably anticipate
being haled into court there.

World-Wide Volkswagen, 444 U.S. at 295, 297, 100 S.Ct. at 566, 567

(citations omitted) (emphasis added).

In this connection, the Supreme Court has held that a

defendant could "reasonably anticipate being haled into court" when

8
he "purposefully directed" his activities and contacts into the

forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476,

105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985). In Burger King, id.,

the defendant had "purposefully directed" activities into the forum

state when he mailed communications to the plaintiff's headquarters

in the forum state, promised to send money into the forum state,

and agreed to allow the forum state's law to govern the contract in

dispute. Here, by contrast, Blakey and Belin took no planned

action to inject themselves or their opinions into the Texas forum.

Each simply received one unsolicited phone call from Texas. They

sent no money or materials into Texas, and neither ever bound

themselves to Texas law—even implicitly—concerning the disputed

photographic interpretations in this case.

Similarly, the facts in the instant case are distinguishable

from Brown v. Flowers Indus., Inc., 688 F.2d 328 (5th Cir.1982),

cert. denied, 460 U.S. 1023, 103 S.Ct. 1275, 75 L.Ed.2d 496 (1983),

where we held that personal jurisdiction in Mississippi was proper

over an out-of-state resident who made a phone call to Mississippi

to defame a Mississippi resident. In so holding, we emphasized

that the defendant initiated the defamatory phone call. Id. at 334

& n. 15 (differentiating McBreen v. Beech Aircraft Corp., 543 F.2d

26, 31 (7th Cir.1976), in which the court held that jurisdiction

was improper, in part, because the defendant did not initiate the

phone call). Here, the defendants did not execute a prearranged

plan by initiating a communication to Texas aimed at a Texas

resident. Instead, Blakey and Belin, while sitting unsuspectingly

9
in their respective offices in Indiana and Iowa, merely answered

one uninitiated and unsolicited phone call asking about their

opinion of a Pennsylvania resident's theory. We hold that the

assertion of specific personal jurisdiction over Blakey and Belin

would deprive them of the due process liberty interest not to be

subjected to suit in a distant forum with which they have little

connection.

B

Next, Wilson argues that the district court has general

personal jurisdiction over Blakey and Belin because of the

unrelated contacts each had with Texas. In resolving this issue we

first turn to the Supreme Court's seminal case on this point:

Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct.

413, 96 L.Ed. 485 (1952). In Perkins, id. at 438, 72 S.Ct. at 438,

the Supreme Court upheld the district court's exercise of general

personal jurisdiction in Ohio over a Philippine corporation that

had temporarily relocated to Ohio. The Court held that the

corporation's general contacts with Ohio, although unrelated to the

cause of action, would support the exercise of general personal

jurisdiction because they were "continuous and systematic." Id.

Some twenty years later, in Keeton, 465 U.S. at 779 n. 11, 104

S.Ct. at 1481 n. 11, the Supreme Court gave a concise explanation

of why general jurisdiction was appropriate in Perkins. The Keeton

Court, emphasized that unrelated contacts must be "substantial" in

order to support general jurisdiction:

In Perkins, ... [the corporation's] president, who was also
general manager and principal stockholder of the company,

10
 returned to his home in Ohio where he carried on "a continuous
and systematic supervision of the necessarily limited wartime
activities of the company...." The company's files were kept
in Ohio, several directors' meetings were held there,
substantial accounts were maintained in Ohio banks, and all
key business decisions were made in the State.... In those
circumstances, Ohio was the corporation's principal, if
temporary, place of business so that Ohio jurisdiction was
proper even over a cause of action unrelated to the activities
in the State.

Id. (citations omitted).5

In the instant case, Wilson argues that the assertion of

general personal jurisdiction over Blakey is warranted because of

his various unrelated contacts with Texas. Wilson first points to

Blakey's relationship with a Texas law firm. Blakey carried his

5
Keeton was an unusual case, as scholars have noted, because
the Supreme Court used a blend of related and unrelated contacts
to uphold personal jurisdiction. See GENE R. SHREVE & PETER RAVEN-
HANSEN, UNDERSTANDING CIVIL PROCEDURE § 19A (1989). In Keeton, 465
U.S. at 772, 104 S.Ct. at 1477, an Ohio publishing corporation
had only a small part of its monthly national circulation in New
Hampshire. The Supreme Court reasoned that if these magazine
sales were unrelated to the cause of action, they would be
insufficient to warrant the exercise of personal jurisdiction.
Id. at 779, 104 S.Ct. at 1481. The Keeton Court distinguished
Perkins on the grounds that "[t]he defendant corporation's
contacts with the forum State in Perkins were more substantial
than those of [the publisher] with New Hampshire in this case."
Id. at 779 n. 11, 104 S.Ct. at 1481 n. 11 (emphasis added).
Other cases have echoed the substantiality requirement. See,
e.g., Helicopteros, 466 U.S. at 471, 418-19, 104 S.Ct. at 1873-74
(refusing to uphold general jurisdiction over a foreign
corporation that negotiated a contract in, purchased equipment
from, and had its employees trained in the forum state because
such activity did not constitute continuous and systematic
unrelated contacts); Holt Oil & Gas Corp. v. Harvey, 801 F.2d
773, 779 (5th Cir.1986), cert. denied, 481 U.S. 1015, 107 S.Ct.
1892, 95 L.Ed.2d 499 (1987) (upholding general jurisdiction over
a nonresident defendant that attended college in, owned real
estate in, travelled to, and conducted extensive business
dealings in the forum state to such an extent that, in toto, his
contacts evidenced "constant and extensive personal and business
connections with [the forum state] throughout [the nonresident
defendant's] adult life").

11
malpractice insurance through the Texas firm for less than a year.

The record makes clear, however, that Blakey performed no work for

and received no compensation from that firm. Wilson also points

out that Blakey performed approximately one legal project per

year—each for a different firm—in Texas for three years prior to

the institution of this suit and gave a legal seminar in Texas.

Additionally, Blakey served, in a limited capacity, as a pro bono

consultant to a historical society in Dallas for several years; in

this connection, he made two trips to Dallas, one in 1988 and one

on opening day—February 21, 1989.6 Further, Blakey wrote a letter

to the editor that appeared in a Texas newspaper, and he wrote a

book that was circulated, in part, in Texas. Finally, he gave a

few interviews to Texas reporters over the years.

Wilson also asserts that Belin had a number of unrelated

contacts with Texas that will support the exercise of general

personal jurisdiction over him. Wilson points out that, in the

last five years, Belin made a few trips to Texas during which he

gave interviews concerning the Kennedy assassination. On one

occasion, during a several-hour layover at a Dallas airport, Belin

visited the Texas School Book Depository. Wilson further points

out that on another occasion Belin engaged in discussions with an

investment banking firm in Texas on behalf of a nonresident

corporation in which he owned a small interest and served as

6
The "Sixth Floor Project" established a museum on the sixth
floor of the Texas School Book Depository from which Lee Harvey
Oswald is alleged to have fired the shots that fatally wounded
President Kennedy.

12
secretary. Belin also wrote three books that were circulated, in

part, in Texas. Finally, he wrote an article for the Washington

Post that was reprinted in a Texas newspaper.

Our examination of Blakey's and Belin's activities in Texas,

in toto, leads us to the conclusion that their unrelated contacts

with Texas were not as "continuous and systematic" and, in any

event, were not as "substantial" as the nonresident defendant's

contacts in Perkins. We simply cannot say that because of these

various brief contacts with Texas that either of these defendants

should have reasonably expected to be sued in Texas on any matter,

however remote from these contacts. They simply were not

substantial enough to give rise to such an expectation.7 Neither

Blakey nor Belin conducted regular business in Texas. They never

made all or even a substantial part of their business decisions in

Texas, did not keep bank accounts in Texas, did not hold directors'

meetings in Texas, and did not maintain their files in Texas. Cf.

Perkins, 342 U.S. at 448, 72 S.Ct. at 419. Even if Blakey's

contacts with Texas via his short-lived malpractice insurance

arrangement through a Texas law firm and his multi-year pro bono

association with the historical society were arguably continuous,

we hold that they were not substantial enough to warrant the

7
Because we hold that Blakey and Belin do not have
sufficient related or unrelated minimum contacts with Texas, we
need not address whether the exercise of personal jurisdiction in
this case would be consonant with "traditional notions of fair
play and substantial justice." See Asahi, 480 U.S. at 113, 107
S.Ct. at 1033 (requiring both minimum contacts and fairness in
order to assert personal jurisdiction); Bullion, 895 F.2d at 216
(same).

13
imposition of general personal jurisdiction over Blakey. See

Keeton, 465 U.S. at 779 & n. 11, 104 S.Ct. at 1481 & n. 11. With

respect to Belin, his contacts are sporadic and attenuated instead

of continuous, and they are definitely not substantial.

Consequently, we hold that the assertion of general personal

jurisdiction over Blakey and Belin would deprive them of their

respective due process liberty interests not to be subjected to

suit in a distant forum with which they have little connection.8

8
Wilson makes several other arguments, all of which fail.
First, Wilson argues that removal was improper because notice of
removal was untimely. It is, of course, true that 28 U.S.C. §
1446(b) requires a defendant to file notice of removal within
thirty days of receipt of the "initial pleading setting forth the
claim for relief." Although plaintiff filed a bill of discovery
more than thirty days prior to the defendants' removal, the first
document stating a claim—the complaint—was filed less than thirty
days prior to the defendants' filing of their joint notice of
removal.

Second, Wilson argues that the complaint, which had no
ad damnum clause, did not state claims that facially
involved more than $50,000. Thus, removal was timely.
Because the record contains a letter, which plaintiff's
counsel sent to defendants stating that the amount in
controversy exceeded $50,000, it is "apparent" that removal
was proper. See Marcel v. Pool Co., 5 F.3d 81, 84 (5th
Cir.1993) (allowing removal when it was facially apparent
that the claims exceeded $50,000).

Third, Wilson also argues that the district court erred
in failing to rule on his motion to remand prior to ruling
on the personal jurisdiction issue. Our precedent provides,
however, that district courts have the power to rule on
personal jurisdiction before reaching motions to remand.
See Villar v. Crowley Maritime Corp., 990 F.2d 1489, 1494
(5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 690,
126 L.Ed.2d 658 (1994).

Finally, Wilson argues that the district court erred in
not ruling on its motion to compel more discovery. We are
satisfied that the district court, after granting several
extensions to the plaintiff to file his motion in opposition
to summary judgment and after reviewing the affidavits,

14
 V

For the foregoing reasons, the order of the district court is

AFFIRMED.

answers, and interrogatories before it dismissed this case,
did not abuse its broad discretion in this discovery matter.
See Wyatt v. Kaplan, 686 F.2d 276, 283 (5th Cir.1982).

15