American Type Culture Collection, Inc. v. Coleman

26 S.W.3d 37, 2000 Tex. App. LEXIS 6124, 2000 WL 637005
CourtCourt of Appeals of Texas
DecidedAugust 31, 2000
Docket01-99-00045-CV
StatusPublished
Cited by11 cases

This text of 26 S.W.3d 37 (American Type Culture Collection, Inc. v. Coleman) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Type Culture Collection, Inc. v. Coleman, 26 S.W.3d 37, 2000 Tex. App. LEXIS 6124, 2000 WL 637005 (Tex. Ct. App. 2000).

Opinions

OPINION

MURRY B. COHEN, Justice.

American Type Culture Collection, Inc. (“ATCC”) takes this interlocutory appeal from an order denying its special appearance. See Tex. Crv. PRAC. & Rem.Code Aun. § 51.014(a)(7) (Vernon Supp.2000). We consider whether a mail-order company that does not advertise locally in, has no physical presence in, and performs all services outside Texas may nonetheless be [40]*40subject to general personal jurisdiction in Texas when, among other things, Texas is its sixth largest market in the United States. Concluding it can under the evidence presented, we affirm.

I.Factual and Procedural Background

Appellees are veterans of the 1991 Persian Gulf War and some of their family members. Of the nearly 1800 plaintiffs in this ease, about 185 live in Texas. Appel-lees allege ATCC, one of over 80 defendants, sold Iraq dangerous pathogens that were later used in weapons against the appellees who served in that war.

In June 1994, appellees sued the defendants in Brazoria County, Texas on theories of negligence and product liability. ATCC made a special appearance. The defendants removed the case to federal court, where ATCC moved to dismiss for lack of personal jurisdiction, but Judge Kent dismissed the entire case for lack of subject-matter jurisdiction. Coleman v. Alcolac et al., 888 F.Supp. 1388, 1404 (S.D.Tex.1995) (order granting motion to dismiss for lack of subject-matter jurisdiction and remanding cause to state court).

On remand, ATCC again urged its special appearance. In December 1998, the trial judge denied ATCC’s special appearance without filing fact findings or legal conclusions. ATCC appeals, arguing in four points of error that the trial judge erred.

II.Standard of Review and Burden of Proof

The burden of proof was on ATCC to negate all possible grounds for personal jurisdiction. Garner v. Furmanite Australia Pty., Ltd., 966 S.W.2d 798, 802 (Tex.App.—Houston [1st Dist.] 1998, pet. denied). Existence of personal jurisdiction is a question of law, but that determination must sometimes be preceded by the resolution of underlying factual disputes. James v. Illinois Cent. R.R. Co., 965 S.W.2d 594, 596 (Tex.App.—Houston [1st Dist.] 1998, no pet.). When, as here, the trial judge files no fact findings, we presume all factual disputes were resolved to support the judge’s order. Gamer, 966 S.W.2d at 802. While we generally review for factual sufficiency, we review de novo if the underlying facts are undisputed or otherwise established. C-Loc Retention Sys., Inc. v. Hendrix, 993 S.W.2d 473, 476 (Tex.App.—Houston [14th Dist.] 1999, no pet.). Many of the facts here are undisputed, although the parties place greatly different significance on them.

III.Jurisdictional Test

A court may assert personal jurisdiction over a nonresident defendant only if the requirements of both the Fourteenth Amendment’s due process clause2 and the Texas long-arm statute3 are satisfied. CSR, Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996) (orig.proceeding). Because the Texas long-arm statute reaches “as far as the federal constitutional requirements of due process will allow,” the statute is satisfied if the exercise of personal jurisdiction comports with federal due process. Id.

Federal due process requirements are two-fold. First, the nonresident defendant must have purposefully established such minimum contacts with the forum that it could reasonably anticipate being sued there. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). If the nonresident defendant has purposefully availed itself of the privileges and benefits of conducting business in a state, it has sufficient contacts to confer personal jurisdiction. Id. Random, fortuitous, or attenuated contacts do not suffice. Id. Neither do unilateral actions by third parties claiming some relationship with the nonresident defendant. Id. It is the quality [41]*41and nature of the contacts, rather than their number, that is important. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 230 n. 11 (Tex.1991).

Minimum contacts analysis is further divided into general and specific personal jurisdiction. CSR, Ltd., 925 S.W.2d at 595. The parties agree this is a case of general personal jurisdiction,4 which requires ATCC to show its contacts in Texas were not continuous and systematic. Id. To support a finding of general jurisdiction, the defendant’s forum activities must have been “substantial,” which requires stronger evidence of contacts than for specific personal jurisdiction.5 Id.

Second, if the nonresident defendant has purposefully established minimum contacts with the forum, the exercise of jurisdiction must comport with fair play and substantial justice. Burger King Corp., 471 U.S. at 477, 105 S.Ct. 2174, 2184; Guardian Royal, 815 S.W.2d at 231.

IV. Jurisdictional Facts

The following evidence was adduced at the special appearance hearing.

ATCC is a non-profit corporation, organized under the laws of the District of Columbia, and having its principal place of business in Maryland. ATCC serves as a long-term repository and distribution center for living microorganisms, viruses, and cell lines, which it makes available to scientists and researchers around the world. During the 1980s, ATCC sold materials to Iraqi governmental entities, apparently in compliance with then-existing regulations.

ATCC is not authorized by Texas to do business in Texas and has no registered agent for service of process in Texas. It does not have an office or other facilities, any real property, a bank account or telephone listing, or officers, directors, or employees in Texas. Neither does it recruit employees in Texas, unless Texas residents respond to its national employment advertisements. ATCC has no Texas distributors for its biological products. It does not control the research conducted by its customers. The evidence does not show that ATCC pays any taxes in Texas, but an ATCC representative testified that, if ATCC incurs any taxes here, it would be sales taxes for Texas goods ATCC buys.

A. ATCC’s Advertising and Sales Methods

ATCC sells its biological materials to customers throughout the United States, including Texas, and in 45 countries. It is basically a mail-order company. Accordingly, all service to Texas is by telephone or mail. ATCC does not make in-person sales visits anywhere. ATCC ships its materials F.O.B. (“free on board”), Rock-ville, Maryland. ATCC sends its bills from Maryland, and its customers send payments to Maryland.

ATCC advertises only in national and international periodicals. ATCC’s biological research materials are listed in cata-logues that are sent to customers or prospective customers only upon request. ATCC does not make unsolicited, targeted makings of its catalogues to prospective Texas customers. ATCC maintains local Maryland and toll-free 800 numbers for customer inquiries.

B. ATCC’s Sales to Texas Residents

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Zack Shahin v. Deyaar Development Corporation USA
367 S.W.3d 274 (Court of Appeals of Texas, 2011)
Blair Communications, Inc. v. Ses Survey Equipment Services, Inc.
80 S.W.3d 723 (Court of Appeals of Texas, 2002)
American Type Culture Collection, Inc. v. Coleman
83 S.W.3d 801 (Texas Supreme Court, 2002)
International Elevator Co. v. Garcia
76 S.W.3d 778 (Court of Appeals of Texas, 2002)
Experimental Aircraft Ass'n, Inc. v. Doctor
76 S.W.3d 496 (Court of Appeals of Texas, 2002)
AmQuip Corp. v. Cloud
73 S.W.3d 380 (Court of Appeals of Texas, 2002)
Shapolsky v. Brewton
56 S.W.3d 120 (Court of Appeals of Texas, 2001)
Michel v. Rocket Engineering Corp.
45 S.W.3d 658 (Court of Appeals of Texas, 2001)
American Type Culture Collection, Inc. v. Coleman
26 S.W.3d 37 (Court of Appeals of Texas, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
26 S.W.3d 37, 2000 Tex. App. LEXIS 6124, 2000 WL 637005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-type-culture-collection-inc-v-coleman-texapp-2000.