National Indus. Sand Ass'n v. Gibson, D-3855

CourtSupreme Court of Texas
Citation897 S.W.2d 769
Docket NumberNo. D-3855,D-3855
Parties38 Tex. Sup. Ct. J. 541 NATIONAL INDUSTRIAL SAND ASSOCIATION, Relator, v. The Honorable Jay GIBSON, Judge, Respondent.
Decision Date27 April 1995

Benton Jordan Barton, Robert H. (Bob) Frost, Scott W. MacLaren, Dallas, for relator.

M. Diane Dwight, Beaumont, R. Sandy Torres, Midland, Lance P. Bradley, Beaumont, Robert E. White, Odessa, for respondent.

GONZALEZ, Justice, delivered the opinion of the Court, in which HIGHTOWER, HECHT, SPECTOR and OWEN, Justices, join.

This original mandamus action involves the overruling of a special appearance filed pursuant to Rule 120a of the Texas Rules of Civil Procedure. Relator, National Industrial Sand Association (NISA), is a defendant in three consolidated silicosis lawsuits in Ector County. NISA argued that it lacked the minimum contacts with Texas necessary for the trial court to assert personal jurisdiction under the Due Process Clause of the Fourteenth Amendment. U.S. CONST. amend. XIV, § 1; see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 2181-82, 85 L.Ed.2d 528 (1985). The trial court held that it had personal jurisdiction over NISA. NISA then sought leave to file a petition for writ of mandamus with the court of appeals. That court held that NISA's remedy by way of appeal from a final judgment was adequate. 855 S.W.2d 790. We disagree.

The remedy of mandamus is "extraordinary" and "available only in limited circumstances." Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). Consequently, a writ of mandamus will issue only "to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law." Johnson v. Fourth Ct. of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (citing State v. Walker, 679 S.W.2d 484, 485 (Tex.1984)). We recently held in Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 307 (Tex.1994), that an appeal from a final judgment is ordinarily adequate to remedy denial of a special appearance. However, in Canadian Helicopters, we noted an exception to this rule in cases in which the trial court's assertion of personal jurisdiction is "with such disregard for guiding principles of law that the harm to the defendant becomes irreparable." Id. at 308. Because this case falls within the exception, we conditionally grant the writ of mandamus.

NISA is a non-profit lobbying organization based in Silver Spring, Maryland. It represents members' interests before Congress and various agencies of the federal government in matters affecting the sandblasting industry. It does not manufacture or supply industrial sand or protective equipment. The plaintiffs in the three underlying lawsuits are former sandblasters who contracted silicosis. They sued NISA along with several manufacturers and sellers of sand. The plaintiffs' claims against the latter defendants are based on negligence and products liability. Their theory with regard to NISA is conspiracy. Specifically, the plaintiffs allege that NISA conspired with Texas Mining Company and Lone Star Industries 1 for the purposes of (1) suppressing information on the dangers of silica and (2) defeating the 1974 public health movement 2 to ban the use of abrasives containing high levels of silica.

NISA filed special appearances to contest the trial courts' personal jurisdiction in each of the three lawsuits. It provided the following facts. NISA keeps its members informed of developments in federal law through the circulation of periodic letters and other publications. However, NISA has never appeared before or communicated with any member or staff of the Texas Legislature or with any regulatory authority in the state. Only one Texas corporation, Texas Mining Company, is a member of NISA. NISA's only contacts with this state have been periodic mailings of its letters, publications, and notices of acceptance of dues to Texas Mining since the company became a member of NISA in 1976.

The trial court consolidated the three lawsuits for consideration of NISA's special appearances. (In oral argument the Court was informed that there were five cases pending in Ector County and sixteen cases in Jefferson County wherein NISA is a defendant.) In response, the plaintiffs asserted specific jurisdiction over NISA based on the alleged conspiracy and general jurisdiction based on the relationship between NISA and Texas Mining Company.

In Personam Jurisdiction

The Due Process Clause guarantees that a party cannot be bound to the "judgments of a forum with which he has established no meaningful 'contacts, ties, or relations.' " Burger King, 471 U.S. at 471-72, 105 S.Ct. at 2181 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 159, 90 L.Ed. 95 (1945)). In order for a court's assertion of jurisdiction over a nonresident defendant to comport with due process, the defendant must have purposefully established minimum contacts with the forum state such that it could reasonably anticipate being sued in the courts of the state. See Guardian Royal Exch. Assurance, Ltd. v. English China Clays, 815 S.W.2d 223, 226-27 (Tex.1991) (explaining that a party must have fair warning that its activity will subject it to the jurisdiction of the forum). The exercise of jurisdiction also must comport with fair play and substantial justice. See id. at 226 (citing Burger King, 471 U.S. at 475-76, 105 S.Ct. at 2183-84). For a trial court to have specific jurisdiction over a defendant, the cause of action must arise out of or relate to the defendant's contact with the forum state. On the other hand, so long as the defendant has had continuous and systematic contacts with the forum state, a trial court has general jurisdiction even if the cause of action did not arise from the defendant's purposeful conduct in the state. See Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 1872-73, 80 L.Ed.2d 404 (1984); Guardian Royal, 815 S.W.2d at 228. A defendant asserting lack of personal jurisdiction by special appearance has the burden of negating all bases of jurisdiction. Guardian Royal, 815 S.W.2d at 231 n. 13; Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 438 (Tex.1982).

NISA presented undisputed evidence that it:

1. Is not and never has been a resident of Texas;

2. Is not required to maintain and has never maintained a registered agent for service in Texas;

3. Does not maintain, and has never maintained a place of business in Texas;

4. Does not have, and has never had any employees or agents in Texas;

5. Has never maintained an office, mailing address, or telephone number in Texas;

6. Has never owned any assets in Texas;

7. Has never paid any taxes in Texas;

8. Has never maintained a bank account in Texas;

9. Has never owned, leased, rented, or controlled any real or personal property in Texas;

10. Has never purchased any tangible items or other personal property in Texas or from a Texas business, citizen, or resident;

11. Has never entered into a contract with any Texas business, citizen, or resident; and

12. Has never held a Board of Directors, officers, or other official meeting in Texas.

We must determine whether the evidence met NISA's burden of demonstrating insufficient minimum contacts to sustain either specific or general personal jurisdiction. Specifically, we must decide if these contacts were so minimal that NISA could not reasonably have foreseen that it would be sued in a Texas court. See Guardian Royal, 815 S.W.2d at 227 (discussing that "foreseeability" is one aspect of determining if a defendant has purposefully established minimum contacts in the forum state).

A. Conspiracy Theory of Jurisdiction

The sole theory of liability the plaintiffs assert against NISA is civil conspiracy, and they assert conspiracy as a basis for long-arm jurisdiction. Some courts have recognized civil conspiracy as a separate basis to support the exercise of jurisdiction. See, e.g., Textor v. Board of Regents of N. Ill. Univ., 711 F.2d 1387, 1392 (7th Cir.1983); Gemini Enters. Inc. v. WFMY Television Corp., 470 F.Supp. 559, 564 (M.D. N.C.1979); see generally Riback, Note, The Long Arm and Multiple Defendants: The Conspiracy Theory of In Personam Jurisdiction, 84 COLUM.L.REV. 506 (1984). The exercise of long-arm jurisdiction based on conspiracy rests on the concept that acts of conspirators in furtherance of the conspiracy are attributable to co-conspirators. Textor, 711 F.2d at 1392 (quoting Gemini, 470 F.Supp. at 564). Courts have used this theory to assert jurisdiction "over [those] whom jurisdiction would otherwise be lacking." In re Arthur Treacher's Franchisee Litigation, 92 F.R.D. 398, 411 (E.D.Pa.1981).

Conspiracy as an independent basis for jurisdiction has been criticized as distracting from the ultimate due process inquiry: whether the out-of-state defendant's contact with the forum was such that it should reasonably anticipate being haled into a court in the forum state. Althouse, The Use of Conspiracy Theory to Establish In Personam Jurisdiction: A Due Process Analysis, 52 Fordham L.Rev. 234, 252 (1983). To comport with due process, the exercise of long-arm jurisdiction over a defendant "must rest not on a conceptual device but on a finding that the non-resident, through his relationship with another, has 'purposefully avail[ed him]self of the privilege of conducting activities within the forum State.' " Id. at 252 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980)). It follows that:

The relationship may be described in terms of conspiracy, but such a characterization should not mask the real facts of the relationship or avoid analysis of the attribution process. The term "conspiracy" is meaningful only to the extent that it helps to elucidate these facts.

Id. at 252-53. In short, "due process will not permit the plaintiff to use insignificant...

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