                                                                      ACCEPTED
                                                                  01-15-00232-CV
                                                       FIRST COURT OF APPEALS
                                                               HOUSTON, TEXAS
                                                              5/8/2015 5:18:58 PM
                                                            CHRISTOPHER PRINE
                                                                           CLERK

      NO. 01-15-00232-CV
    ACCELERATED APPEAL
                                                 FILED IN
                                          1st COURT OF APPEALS
                                              HOUSTON, TEXAS
                                          5/8/2015 5:18:58 PM
            IN THE                        CHRISTOPHER A. PRINE
      COURT OF APPEALS                            Clerk
           FOR THE
   FIRST DISTRICT OF TEXAS


Nationwide Distribution Services, Inc.,
             Appellant

                  vs.

Robert Jones and Poly Trucking, Inc.,
             Appellees



     BRIEF OF APPELLANT


                Jack McKinley
                State Bar No. 13716300
                Robert L. Ramey
                State Bar No. 16498200
                RAMEY, CHANDLER, QUINN & ZITO, P.C.
                750 Bering, Suite 600
                Houston, Texas 77057
                Telephone: (713) 266-0074
                Facsimile: (713) 266-1064
                jmm@ramey-chandler.com

                COUNSEL FOR APPELLANT
                    STATEMENT REGARDING ORAL ARGUMENT

       Appellant, Nationwide Distribution Services, Inc., does not believe that oral

argument is necessary in order to fully present its position to the Court, but would be

pleased to participate if the Court finds a use for it.



                                RECORD REFERENCES

       All references to the clerk’s record are as follows: (CR [vol.][pg.]), with (CR

[vol.] at [page:line] to [page:line] indicating a citation to the internal pagination of a

deposition)

       All references to the reporter’s record are as follows: (RR [vol.] [pg.]).




                                            ii
               IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                 Nationwide Distribution Services, Inc.

COUNSEL FOR APPELLANTS:    Jack McKinley
                           State Bar No. 13716300
                           Ramey, Chandler, Quinn & Zito, P.C.
                           750 Bering, Suite 600
                           Houston, Texas 77057
                           Telephone: (713) 266-0074
                           Facsimile: (713) 266-1064
                           jmm@ramey-chandler.com

APPELLEE:                  Robert Jones

COUNSEL FOR APPELLEE       Jason A. Itkin
ROBERT JONES:              State Bar No. 24032461
                           Cory D. Itkin
                           State Bar No. 24050808
                           Noah M. Wexler
                           State Bar No. 24060816
                           Arnold & Itkin, LLP
                           6009 Memorial Drive
                           Houston, Texas 77007
                           Telephone: (713) 222-3800
                           Facsimile: (713) 222-3850
                           e-service@arnolditkin.com

APPELLEE:                  Poly Trucking, Inc.

COUNSEL FOR APPELLEE       Ruark D. Mershon
POLY TRUCKING, INC.:       State Bar No. 24037100
                           2000 W. Marshall Drive
                           Grand Prairie, Texas 75051
                           Telephone: (972) 337-7692
                           Facsimile: (972) 337-8139
                           ruarkm@poly-america.com

                             iii
                                             TABLE OF CONTENTS
                                                                                                                Page(s)

Statement Regarding Oral Argument........................................................................ ii

Record References. ................................................................................................... ii

Identity of Parties and Counsel. ............................................................................... iii

Table of Contents..................................................................................................... iv

Index of Authorities. ............................................................................................... vii

Statement of The Case. ............................................................................................. 1

Statement of Jurisdiction........................................................................................... 1

Issues Presented. ....................................................................................................... 1

Statement of The Facts.............................................................................................. 1

Summary of the Argument........................................................................................ 6

Test for Personal Jurisdiction; Standard of Review.................................................. 9

ARGUMENT.......................................................................................................... 12

         I.       There is no general jurisdiction over NDS because it has no
                  continuous and systematic contacts with Texas. ................................ 12

                  A.        NDS’ Georgia contract to manage a Georgia warehouse for
                            a Texas company with national operations is not a
                            “contact” with Texas................................................................ 14

                  B.        That Kimberly Clark has its headquarters and accounting
                            department in Texas, and so NDS sent bills to Texas, is no
                            basis for personal jurisdiction. ................................................. 18


                                                            iv
         II.      There is no specific jurisdiction over NDS because its “contacts”
                  with Texas are far below the constitutional minimum. ...................... 22

                  A.       Jones did not even allege that NDS committed a tort or took
                           any action in Texas, as required for specific jurisdiction......... 23

                           (1)       Jones alleged and the evidence shows that NDS
                                     loaded the cargo in Georgia, pursuant to its duties
                                     there as a warehouseman. .............................................. 23

                           (2)       The Kimberly Clark-NDS contract for
                                     warehouseman services in Georgia states that it is
                                     governed by Wisconsin law........................................... 24

                           (3)       Absent alleged contacts by NDS with Texas, NDS’
                                     Special Appearance had to be sustained because it is
                                     a foreign citizen. ............................................................ 25

                  B.       Effects within the forum from the act of a party operating
                           entirely outside the forum do not support specific
                           jurisdiction . ............................................................................. 26

         III.     NDS did not waive its Special Appearance by participating in
                  merits-related discovery and filing or joining non-dispositive
                  motions. .............................................................................................. 27

                  A.       Participating even in merits discovery does not deliberately
                           relinquish a challenge to personal jurisdiction......................... 28

                  B.       Merits-related motions for discovery and continuance may
                           be important to defending a lawsuit if a special appearance
                           is denied. .................................................................................. 37

Conclusion and Prayer. ........................................................................................... 42

Certificate of Compliance. ...................................................................................... 43


                                                            v
Certificate of Service. ............................................................................................. 44

Appellants’ Appendix. ............................................................................................ 45




                                                          vi
                                             INDEX OF AUTHORITIES

Cases                                                                                                                 Page(s)

American Type Culture Collection, Inc. v. Coleman,
 83 S.W.3d 801 (Tex. 2002)............................................................................ 28, 40

Anderson v. Bechtle,
   2001 WL 930205, p. 2 (Tex. App.—Houston [1st Dist.] 2001) (unpublished)
........................................................................................................................... 32, 41

BMC Software Belguim, N.V. v. Marchand,
 83 S.W.3d 789 (Tex. 2002).................................................................................. 11

Burger King,
 471 U.S. 462, 105 S.Ct. 2187. ............................................................................. 24

Burger King Corp. v. Rudzewicz,
 471 U.S. 462, 105 S.Ct. 2174 (1985)............................................................. 10, 18

Dawson-Austin v. Austin,
 968 S.W.2d 319 (Tex. 1998).................................................................... 32, 33, 34

Exito Electronics Co., Ltd. v. Trejo,
 142 S.W.3d 302 (Tex. 2004)........................................................ 33, 34, 35, 36, 41

First Oil, PLC v. ATP Oil & Gas Corp.,
  264 S.W.3d 767 (Tex. App. —Houston [1st Dist.] 2008). ................................... 34

Forest River, Inc. v. Quality Frames, Inc.,
 2005 WL 615424 (Tex. App.—Houston [1st Dist.] 2005)
 (memorandum opinion)............................................................................ 34, 36, 41

Freudensprung v. Offshore Technical Services, Inc.,
 379 F.3d 327 (5th Cir. 2004)................................................................................. 19

Gutierrez v. Cayman Islands firm of Deloitte & Touche,
 100 S.W.3d 261 (Tex.App.—San Antonio 2002)................................................ 37

                                                              vii
Helicopteros Nacionales De Colombia v. Hall,
 466 U.S. 408, 104 S.Ct. 1868 (1984)....................................................... 10, 11, 26

Helicopteros Nacionales,
 466 U.S. 417, 104 S.Ct. 1873. ....................................................................... 19, 26

Horizon Shipbuilding, Inc. v. Blyn II, Holding, LLC,
 324 S.W.3d 840, 846 (Tex.App.—Houston [14th Dist.] 2010). .......................... 40

Horowitz v. Berger,
 377 S.W.3d 115 (Tex. App.—Houston [14th Dist.] 2012). .................................. 36

In Re Stern,
  321 S.W.3d 828 (Tex. App.—Houston [1st Dist.] 2010). ........................ 34, 35, 36

In re: Alford Chevrolet-Geo,
  997 S.W.2d 173 (Tex. 1999)................................................................................ 38

In re Doe,
  443 S.W.3d 603 (Tex. 2014)................................................................................ 14

In re City of Georgetown,
  53 S.W.3d 328 (Tex. 2001).................................................................................. 31

Jernigan v. Langley,
  111 S.W.3d 153 (Tex. 2003)................................................................................ 28

Kelly v. General Interior Construction, Inc.,
 301 S.W.3d 653 (Tex. 2010).......................................................................... 25, 26

Lisitsa v. Flit,
  419 S.W.3d 672 (Tex. App.—Houston [14th Dist.] 2013). .................................. 37

Luther Transfer & Storage v. Walton, Inc.,
 296 S.W.2d 750 (Tex. 1956)................................................................................ 16

Luv N' care, Ltd. v. Insta-Mix, Inc.,
 438 F.3d 465 (5th Cir.2006). ............................................................................... 17

                                                     viii
Metropolitan Wholesale Supply, Inc. v. M/V Royal Rainbow,
 12 F.3d 58 (5th Cir. 1992)..................................................................................... 13

Michiana Easy Livin’ Country, Inc. v. Holten,
 168 S.W.3d 777 (Tex. 2005).............................................................. 20, 21, 24, 26

Minucci v. Sogevalor, S.A.,
 14 S.W.3d 790 (Tex. App.—Houston [1st Dist.] 2000). ...................................... 33

Moki Mac Expeditions v. Drugg,
 221 S.W.3d 569 (Tex. 2007) (CR 71)............................................................ 22, 23

Moncrief Boil International, Inc. v. OAO Gazprom,
 414 S.W.3d 142 (Tex. 2013).......................................................................... 12, 23

National Industrial Sand v. Gibson,
 897 S.W.2d 769 (Tex. 1995)................................................................................ 27

Peninsula Asset Management (Cayman) Ltd. v. Hankook Tire Co., Ltd.,
 2006 WL 1030185, p.4 (Tex.App. —Ft. Worth 2006) (unpublished)................ 40

PHC-Minden, L.P. v. Kimberly-Clark Corp.,
 235 S.W.3d 163 (Tex. 2007)................................................................................ 11

Polycomp Administrative Services, Inc. v. Jackson,
 2010 WL 1611760 (Tex. App.—Houston [1st Dist.] 2010). .......................... 21, 24

Robertson v. Hensel Phelps Construction Co.,
 1999 WL 233599, p. 1 (Tex.App.—Houston [1st Dist.] 1999). ........................... 40

Ruston Gas Turbines, Inc. v. Donaldson Co., Inc.,
 9 F.3d 415 (5th Cir.1993). ................................................................................... 17

Schlobohm v. Schapiro,
  784 S.W.2d 355 (Tex. 1990)................................................................................ 10

Silbaugh v. Ramirez,
  126 S.W.3d 88 (Tex.App.—Houston [1st Dist.] 2002). ..................... 33, 34, 36, 41

                                                        ix
Southern Pacific Transportation Co. v. Commercial Metals Co.,
  456 U.S. 336, 342 102 S.Ct. 1815, 1820 (1982).................................................. 13

Stephen F. Austin State University v. Flynn,
  228 S.W.3d 653 (Tex. 2007)................................................................................ 22

Texas Mut. Ins. Co. v. Ruttiger,
 381 S.W.3d 430 (Tex. 2012)................................................................................ 31

U-Anchor Advertising, Inc. v. Burt,
 553 S.W.2d 760 (Tex. 1977)................................................................................ 20

University of Texas Medical Branch v. Blackmon,
 195 S.W.3d 98 (Tex. 2006).................................................................................. 30

Waterman Steamship Corp. v. Ruiz,
 355 S.W.3d 387 (Tex. App.—Houston [1st Dist.] 2011). .................................... 10

World Wide Volkswagon Corp. v. Woodson,
 444 U.S. 286, 296, 100 S.Ct. 559 (1980)....................................................... 17, 21

Statutes and Rules                                                                                           Page(s)

4 Wright & Miller, FEDERAL PRACTICE & PROCEDURE §1067.5............................. 11

Article 5568, Vernon's Texas Civil Statutes. .......................................................... 16

Tex. Bus. & Comm. Code §7.102(a)(13)................................................................ 16

Tex. Civ. Prac. & Rem. Code (“CPRC”) §17.042. ................................................... 9

Texas Long-Arm Statute..................................................................................... 9, 10

Tex. R. Civ. P. 120a...................... 8, 9, 28, 30, 31, 33, 34, 35, 36, 37, 39, 40, 41, 42

Tex. R. Civ. P. 162.................................................................................................. 30

United States Constitution. ............................................................................... 10, 15

                                                           x
TO THE HONORABLE FIRST COURT OF APPEALS:

                             STATEMENT OF THE CASE

      This is an accelerated appeal from a February 23, 2015 order (CR 121) denying

a special appearance by Nationwide Distribution Services, Inc. (CR 9). The lawsuit

seeks damages for personal injury. (CR 18). Appellant timely filed a Notice of Appeal

from the denial of its special appearance (CR 127).

                          STATEMENT OF JURISDICTION

      The court has jurisdiction to hear this appeal from an interlocutory order

pursuant to Texas Civil Practice & Remedies Code §51.014(a)(7) because the order

in question denied a special appearance.

                                ISSUES PRESENTED

1.    There is no general jurisdiction over NDS because it has no continuous and
      systematic contacts with Texas.

2.    There is no specific jurisdiction over NDS because its “contacts” with Texas
      are far below the constitutional minimum

3.    NDS did not waive its special appearance by participating in merits-related
      discovery and filing or joining non-dispositive motions

                            STATEMENT OF THE FACTS

      Plaintiff Robert Jones filed this lawsuit on October 25, 2013, initially suing

three “Kimberly-Clark” (hereafter: “K-C”) corporate entities. (SCR 3). Jones filed a

First Amended Petition on January 15, 2014 adding Nationwide Distribution Services,

Inc. (“NDS”) and Nationwide Express, Inc. as defendants. (SCR 9). Intervenor Poly
Trucking, Inc. (“Poly”), plaintiff’s employer, filed a Second Amended Petition in

Intervention adding NDS on January 24, 2014. (CR 4).

      Jones (“Jones”) alleges, and no one denies, that he is a Michigan resident suing

a Tennessee corporation (NDS) and a Texas corporation (Poly) for an injury he

suffered in Texas. (CR 19). Jones’ February 2012 injury (SCR 11) occurred while he

was delivering cargo as a truck driver for Poly. (SCR 201 at 35/1-25; 202 at 37/13-

24). Jones does not say NDS committed a negligent act in Texas. He alleges NDS

“negligently loaded and/or secured the cargo [in the trailer Jones was pulling] at its

facility in Roswell, Georgia.” (CR 19 ¶7) (emphasis added). NDS’ allegedly negligent

handling of cargo in Georgia is said to have caused injury in Texas because “the load

fell out of a trailer” while Jones was delivering the cargo in Texas. (CR 19 ¶7).

      On March 17, 2014—slightly more than a year ago—NDS filed a Special

Appearance in response to the petitions of both Jones and intervenor Poly, stating that

it has no activity in or contacts with Texas (CR 9). NDS attached to its Special

Appearance an affidavit of its president (David Coffey), attesting that NDS is a

Tennessee corporation with its principal place of business in Tennessee and no offices,

property, bank accounts, contracts, agents, employees or sales in Texas. (SCR 24).

Instead, NDS operates as a warehouseman in Roswell, Georgia (for co-defendant K-

C), where it loaded the cargo in question. (SCR 218 at 101/12-102/12).


                                          2
      The trial court issued a docket control order on May 13, 2014 (SCR 26), setting

trial for February 2, 2015 with pre-trial deadlines that included expert witness

designation for defendants on November 3, 2014 and a discovery cutoff on January

2, 2015. Jones filed a Second Amended Petition on July 7, 2014, specifying for the

first time the negligence being alleged against NDS. (CR 18, 19 ¶7).

      Jones filed a Response to NDS’s Special Appearance on February 20, 2015.

(CR 66). His Response equates NDS’ loading of Texas-bound cargo at a Georgia

warehouse with purposeful availment by NDS of the privilege of conducting business

in Texas (i.e., “minimum contacts” by NDS with Texas, justifying the exercise of

personal jurisdiction consistent with due process). Jones asserted as minimum contacts

that: (1) the load in question, and most loads leaving the Kimberly-Clark warehouse

in Georgia, went to Texas; (2) K-C, a Delaware corporation, has its headquarters in

Texas; and (3) NDS sent invoices to K-C’s “accounts payable” department in Texas.

(CR 72-75). Jones argues that those facts, and the foreseeability “that someone would

be injured in Texas if they improperly loaded cargo bound for Texas,” indicate general

jurisdiction over NDS in Texas. (CR 75).

      The evidence relevant to personal jurisdiction is undisputed. NDS loaded Poly’s

trailer with K-C’s cargo at the Roswell, Georgia warehouse, after which Jones

inspected the load, sealed the trailer and left for Texas. (SCR 210-213). Jones


                                           3
delivered the load to the Ravago facility in Waller, Texas (SCR 202 at 37/20-38/23),

where part of the load fell on him after he opened the trailer door. (SCR 214 at 86/10

to 216 at 94/10). There is no allegation or evidence that NDS has or has ever had any

employees or operations in Texas, or that it had anything to do with unloading the

trailer in Texas. Jones made the conclusory allegation that NDS “does a substantial

amount of business in Texas and directs products to Texas” (CR 19 ¶5), but the

affidavit attached to NDS’ Special Appearance (SCR 24) and even Jones’ own

evidence (SCR 74 at 5/22 to 75 at 9/15) established the opposite of that allegation.

      Jones deposed David Coffey, president of NDS, on February 16, 2014. (SCR

73). Mr. Coffey testified that NDS had two employees working on-site at the facility

in Roswell, Georgia where it acted as warehouseman for K-C. (SCR 74 at 6/22-7/9).

NDS leases its own facilities in Tennessee and North Carolina, but does not own or

lease the facility where it provides warehouse services to K-C in Roswell, Georgia.

(SCR 74 at 6/6-7/6). NDS provided warehouse services to K-C in Georgia pursuant

to a “Blanket Warehouse Services Agreement” between the two companies. (SCR 56;

75 at 9/11-15). Mr. Coffey testified that warehousing services include unloading and

storage of a client’s goods, while distribution includes preparing goods for pickup and

delivery by other companies. (SCR 77 at 18/11-15).

      Among NDS’s job responsibilities at the Georgia warehouse was loading


                                          4
trailers bound for Ravago in Waller, Texas, which it did on 168-170 occasions. (SCR

78 at 21/9-24/16). NDS was given paperwork directing what products to load on

trailers for shipment and where the products were to be shipped. (SCR 75 at 12/15 to

76 at 13/8).

      The Blanket Warehouse Services Agreement between K-C and NDS make clear

that NDS was merely handling goods on K-C’s behalf:

      9.01 Title: K-C shall consign the Products to itself in care of
      Warehouseman [i.e., NDS]. Title to such Products shall not pass to
      Warehouseman. All Products shall remain the property of K-C, and shall
      be stored and identified as K-C’s property.

(SCR 61). NDS, typical of any warehouseman, was to be notified by the goods’ owner

of incoming shipments, and was in turn to notify the owner of their receipt and

provide bills of lading for shipments leaving the warehouse. (SCR 62-63 at §10.04).

      The Warehouse Services Agreement directs K-C to give any notice under the

Agreement to NDS at its head office in Loudon, Tennessee, and NDS to give notice

to K-C at its Roswell, Georgia location. (SCR 67 at §14.06). K-C directed that NDS

send invoices to K-C’s “Accounts Payable Department” in Waco, Texas. (SCR 59 at

§6.02). The evidence that NDS acted as a warehouseman in Georgia, but did nothing

in Texas, is uncontradicted.

      In the year since its appearance, NDS has obtained and provided discovery,

both jurisdictional and merits-related, and has filed non-dispositive motions relating

                                          5
to its discovery disputes with Jones. Such filings have included a motion to quash

deposition notices for jurisdictional discovery based upon scheduling conflicts, a

motion to compel more complete answers by Jones to NDS’ interrogatories (CR 24),

and a motion to compel production by Jones of driver’s logs and DVIR records. (CR

32). NDS also moved for a continuance of the expert designation deadline (CR 41),

which the court granted by issuing a new docket control order. (SCR 34).

      At no time did NDS ever seek dispositive or affirmative relief, such as through

a motion for summary judgment, motion to dismiss, motion to strike pleadings or

otherwise. At no time did NDS state or imply that in pursuing merits-related

discovery, it was abandoning its concurrent challenge to the jurisdiction.

      The trial court held a hearing on NDS’s Special Appearance on February 23,

2015, and signed an order denying it that same day. (CR 121). Less than one year

elapsed between NDS’s Special Appearance and the ruling on that Special

Appearance by the trial court.

                          SUMMARY OF THE ARGUMENT

      Robert Jones, as plaintiff, pled and proved facts that conclusively negate both

general and specific jurisdictions over NDS in Texas. Uncontroverted evidence

attached to NDS’s Special Appearance and Jones’ response to it confirms only one,

trivial “contact” by NDS with Texas (if mailing invoices to a Texas accounting


                                          6
department even qualifies as a jurisdictional contact). Jones’ argument for personal

jurisdiction consists almost entirely of what courts long ago rejected: foreseeability

of injury in the forum, from acts outside the forum (an “effects” or “directed injury”

argument). Courts are clear: foreseeable harm in the forum is the plaintiff’s (Jones’)

contact with the forum—not the defendant’s. Foreseeability of harm is thus not a basis

for personal jurisdiction.

      Courts from the U.S. Supreme Court to this court have consistently rejected an

“effects”-based standard for personal jurisdiction. The problem is that an effects-based

standard focuses upon liability facts, not jurisdictionally relevant facts. Jones invited

the district court to focus upon his relationship to the Texas forum (he was injured

here), but personal jurisdiction turns upon NDS’ relationship (or lack of one) to the

forum. Whether Jones’ injury in the forum was a foreseeable result of NDS’ alleged

breach of duty is very relevant to liability, but irrelevant to personal jurisdiction. NDS

is not subject to being sued in Texas unless it committed a tortious act in Texas, or

otherwise has Texas contacts out of which Jones’ injury accident arose.

      The closest NDS came to a contact with Texas was sending invoices to K-C,

at its accounts payable department in Waco, Texas, for services performed in Georgia

pursuant to those parties’ Georgia contract. The party to be billed knows and

designates the address to which bills should be sent. Even if NDS had entered into a


                                            7
contract with K-C in Texas for its Georgia services, precedent is clear that would not

create personal jurisdiction over NDS in Texas.

      The district court had no evidence to justify its implicit finding that NDS

“purposefully availed itself of the privilege of conducting business in Texas.” The

error goes beyond the fact that NDS performed warehouse services in Georgia, not in

Texas. The district court also failed to recognize that NDS did the opposite of seeking

the benefits of Texas law. Its Blanket Warehouse Services Agreement with K-C

specifies that Wisconsin law governs the contract. (SCR 66; ¶14.05).

      Absent personal jurisdiction over NDS, Jones must resort to a waiver argument.

He equates NDS’ participation in merits-related discovery and its discovery motions

with a choice to abandon its challenge to personal jurisdiction. Controlling precedent

rejects that argument as well, consistent with the plain meaning of Tex. R. Civ. P.

120a (outlining special appearance practice).

      Jones discusses NDS’ discovery motions as though they constitute a request for

affirmative relief (i.e., adjudication on the merits, disposition of claims), but he never

explains why that would be or cites precedent for the proposition. His false equation

of discovery motions with merits adjudications dissolves on sight, as the two are

obviously distinct. Jones also misconceives the meaning of waiver. It is the deliberate

relinquishment of a known right. NDS’s attempts to obtain merits-related discovery


                                            8
from plaintiff, in recognition that its Special Appearance might be denied and it might

have to try the lawsuit (as the trial court has ruled), has nothing to do with and cannot

plausibly be construed as deliberate relinquishment of a personal jurisdiction defense.

      No rule or statute requires that a specially appearing defendant conduct only

jurisdictional discovery until the court rules on its special appearance. To the contrary,

R. 120a is explicit and unqualified in saying that “the use of discovery processes”

does not waive a special appearance. This court has held R. 120a means what it says,

and merits-related discovery does not waive a special appearance. Jones’ argument to

the contrary cannot stand against the rule’s plain meaning and controlling precedent.

           TEST FOR PERSONAL JURISDICTION; STANDARD OF REVIEW

      Jones claims both types of personal jurisdiction over NDS in Texas—general

and specific. Jones does not cite the Texas Long-Arm Statute, Tex. Civ. Prac. & Rem.

Code (“CPRC”) §17.042, which states that personal jurisdiction exists over a

defendant “doing business” in Texas. It gives, as examples, that the non-resident:

      1.     Contracts by mail or otherwise with a Texas resident and either
             party is to perform the contract in whole or in part in this state;

      2.     Commits a tort in whole or in part in this state; or

      3.     Recruits Texas residents, directly or through an intermediary located in
             this state, for employment inside or outside this state.

Jones does not allege (in his pleadings) or claim (in his Response to NDS’s Special


                                            9
Appearance) that any of those three examples exists here.

      The Texas Long-Arm Statute is construed as allowing assertion of personal

jurisdiction to the limits of the United States Constitution, so it is constrained only by

precedent construing the “due process” guarantee of the U.S. Constitution. Schlobohm

v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990); Waterman Steamship Corp. v. Ruiz,

355 S.W.3d 387, 403 (Tex. App.—Houston [1st Dist.] 2011).

      The United States Supreme Court indicates that the “touchstone” of personal

jurisdiction consistent with the U.S. Constitution is a showing that the defendant

purposefully established “minimum contacts” in the forum state—i.e., that defendant

“purposefully avails itself of the privilege of conducting activities within the forum

state, thus invoking the benefits and protections of its laws.” Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 2183 (1985). The second part of

the due process test is whether the assertion of personal jurisdiction over the non-

resident defendant, even with minimum contacts, comports with “fair play and

substantial justice.” Id. at 476, 2184. The second part of the test is not at issue here,

as NDS has no minimum contacts with Texas that could put “fair play” in issue.

      General jurisdiction requires more than specific jurisdiction—the defendant’s

contracts with the forum state must be “continuous and systematic,” not just

“minimum.” Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 416, 104


                                           10
S.Ct. 1868, 1873 (1984). The Texas Supreme Court has said that while the U.S.

Supreme Court “has given little guidance on the appropriate injury for general

jurisdiction,” its opinion in Helicopteros “suggests that the requisite level of contacts

is fairly substantial.” PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163,

167 (Tex. 2007). Thus, general jurisdiction requires a “more demanding minimum

contacts analysis” than does specific jurisdiction, and has a “substantially higher”

threshold.” Id. at 168.

      Leading scholars see general jurisdiction the same way: “The defendant must

be engaged in longstanding business in the forum state, such as marketing or shipping

products, or performing services or maintaining one or more offices there; activities

that are less extensive than that will not qualify for general in personam jurisdiction.”

Id. at 168, quoting 4 Wright & Miller, FEDERAL PRACTICE & PROCEDURE §1067.5.

      This court’s standard of review of the district court’s denial of NDS’s Special

Appearance is de novo because no facts are in issue, and whether the facts meet the

jurisdictional threshold is a matter of law for the court. BMC Software Belguim, N.V.

v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Facts necessary to support the district

court’s decision, and consistent with the evidence, are implied. However, because the

clerk’s record and reporter’s record are before the court, those implied findings are not

conclusive and may be challenged in this court for factual and legal sufficiency. Id.


                                           11
at 795. There are no fact issues in this appeal, so no factual insufficiency challenge,

but this court “may review the trial court’s legal conclusions drawing from the facts

to determine their correctness.” Id. at 794.

                                    ARGUMENT

I.    There is no general jurisdiction over NDS because it has no continuous and
      systematic contacts with Texas

      NDS notes the absence in the record of factual allegations or evidence of

“continuous and systematic contacts” of NDS with Texas. Jones’ Response asserts

they are “certainly” present (CR 74), but Jones discusses his own and K-C’s contacts

with Texas as if they constitute contacts of NDS. Jones’ Response to Special

Appearance argues for personal jurisdiction over NDS because K-C (1) has its

headquarters here; (2) required NDS to mail invoices to K-C’s “Accounts Payable”

office in Waco; and (3) regularly sends cargoes of scrap metal from the Georgia

warehouse managed by NDS to Texas. (CR 75).

      It is a fundamental rule of personal jurisdiction that “only the defendant’s

contacts with the forum are relevant, and not the unilateral activity of another party

or a third person.” Moncrief Boil International, Inc. v. OAO Gazprom, 414 S.W.3d

142, 151 (Tex. 2013). So K-C’s headquarters location in Texas and Jones’ injury

location in Texas, however significant for those parties, are not contacts of NDS with

Texas. Likewise, K-C’s decision to ship its goods to Texas from the Georgia

                                          12
warehouse where NDS stored them, and Jones’ choice to make the haul for Poly

(motor carrier for K-C), are acts of other parties.

      Such Texas contacts by other parties are not evidence that NDS purposefully

availed itself of the privilege of conducting business in Texas. For example, NDS

“filled out a bill of lading” when K-C directed that a load of its goods be shipped to

Ravago, a Texas purchaser. (CR 78 at 22/1-12). NDS, a warehouseman, can at most

have acted as K-C’s agent in filling out shipment paperwork because only K-C owned

and had the right to release the goods for shipment to a purchaser. There is no

evidence of any bill of lading saying NDS is shipping goods into Texas. There could

not be, as a bill of lading is a contract and chain of title document between the goods’

owner (the shipper/consignor, K-C) and the motor carrier the owner hires (Poly) to

carry the cargo to the consignee/purchaser (Ravago).

      A bill of lading is not made with or by a warehouseman. Precedent is clear:

“The bill of lading is the basic transportation contract between the shipper-consignor

and the carrier; its terms and conditions bind the shipper and all connecting carriers.”

Southern Pacific Transportation Co. v. Commercial Metals Co., 456 U.S. 336, 342

102 S.Ct. 1815, 1820 (1982) (emphasis added); Metropolitan Wholesale Supply, Inc.

v. M/V Royal Rainbow, 12 F.3d 58 (5th Cir. 1992) (bill of lading is “the contract of

carriage between the shipper and the carrier”).


                                          13
      There is no claim or evidence that NDS owned the goods K-C was selling and

shipping to Ravago in Waller, Texas from the Georgia warehouse managed by NDS.

That is consistent with NDS’ role as warehouseman, not a consignor/shipper of K-C’s

goods. It is undisputed that when NDS released and loaded K-C’s goods for delivery

by Poly to Ravago in Texas, it acted as directed by owner/consignor K-C. There is no

allegation or evidence that NDS had any right to do (or did do) anything beyond what

K-C directed with the goods K-C entrusted to its care. There is no claim or evidence

that NDS profited from K-C selling goods in Texas or Poly transporting cargo there.

      A.     NDS’ Georgia contract to manage a Georgia warehouse for a Texas
             company with national operations is not a “contact” with Texas

      First, it does not matter how deeply K-C is connected to Texas. Like any

multinational corporation doing business worldwide, it has a physical presence in, and

enters into contracts and performs operations in, jurisdictions outside Texas. Here, as

will often be the case, the local (foreign) business with which K-C made a contract has

no contacts with Texas, and performed operations for the Texas company in the

foreign jurisdiction rather than in Texas. If a Texas entity’s Texas contacts are

imputed to every foreign entity with which it contracts for services that are performed

in a foreign jurisdiction, constitutional limits will be an illusion. Having shrunk its

welcome mat as “the world’s forum of final resort,” In re Doe, 443 S.W.3d 603, 611

(Tex. 2014), Texas surely does not intend to violate U.S. constitutional limitations on

                                          14
the even more important issue of personal jurisdiction.

      Even if such jurisdictional gusto were compatible with due process under the

U.S. Constitution (which it plainly is not), it would add volume to Texas courts at the

expense of taxpayers, mostly for the benefit of lawyers. Jones has a legitimate

jurisdictional basis to sue Poly and K-C in Texas for his Texas injury because they do

business in Texas. If he wanted to sue NDS in the same lawsuit, he needed to file it

in Georgia (or Tennessee), where he presumably could find counsel as readily as he

found Texas counsel. The benefits of suing in Texas, however large and personal,

should not be confused with a basis for jurisdiction in Texas.

      Instead, the focus of personal jurisdiction is upon the foreign entity’s (NDS’)

contacts with Texas. The Statement of Facts shows NDS has no office, employees,

money, presence of any kind or contacts in Texas. Jones does not allege or prove facts

suggesting it does. Instead, Jones argues for what amounts to jurisdiction-by-

association. That novel doctrine has even less merit and support in precedent than

does guilt-by-association. No federal or Texas court has recognized one contracting

party’s Texas contacts as a basis for personal jurisdiction over its counter–party.

      Second, NDS cargo loading in Georgia does not become an NDS contact with

Texas just because K-C directs that its goods (the cargo) be shipped to Texas. NDS

fulfilled its responsibilities as a Georgia warehouseman by loading the cargo stored


                                          15
in the Georgia warehouse and generating the paperwork required for its shipment and

delivery. Traditionally, per Article 5568, Vernon's Texas Civil Statutes:

      Any person, firm, company or corporation who shall receive, * * *, or
      any kind of * * * merchandise, or any personal property in store for hire,
      shall be deemed and taken to be public warehousemen.

Luther Transfer & Storage v. Walton, Inc., 296 S.W.2d 750, 752 (Tex. 1956).

      Texas’ current version of the Uniform Commercial Code simply uses the term

“warehouse” to refer to “a person engaged in the business of storing goods for hire”

(i.e., a commercial bailee). Tex. Bus. & Comm. Code §7.102(a)(13). Such storage of

K-C’s goods for hire occurred only in Georgia. NDS releasing the bailor’s goods to

K-C’s chosen motor carrier (Poly), for delivery to K-C’s chosen destination, links K-C

and Poly—not NDS—to Texas.

      Jones’ real point, at the bottom of the paragraph in which he argues for general

jurisdiction, is that NDS knew K-C’s loads “were bound for Texas” and it was

foreseeable to NDS “that someone would be injured in Texas if they improperly

loaded cargo bound for Texas.” (Response, p. 10). Leave aside for a moment that U.S.

and Texas courts reject foreseeability of injury in the forum as a basis for personal

jurisdiction over a defendant that lacks minimum contacts in the forum (discussed in

part II.B. below). Even if foreseeability of harm in Texas from Georgia warehouse

operations were in itself a contact, it would be far short of the “continuous and


                                         16
systematic” contacts with Texas required for general jurisdiction.

      Jones seems to equate product distribution (which routinely supports personal

jurisdiction in multiple forums) with provision of services (which supports jurisdiction

only in the place of performance). Minimum contacts may exist for products liability

defendants with states where they knows or can foresee their products will be

distributed. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298

(1980); Ruston Gas Turbines, Inc. v. Donaldson Co., Inc., 9 F.3d 415, 419 (5th

Cir.1993). Personal jurisdiction is justified when a product manufacturer or distributor

seeks the financial benefits of selling its products in other states. Luv N' care, Ltd. v.

Insta-Mix, Inc., 438 F.3d 465, 470 (5th Cir.2006).

      No such jurisdictional rationale can apply to services (work). By its nature,

work is performed in a given location. Work is not a tangible object that can be

distributed to another state. Once NDS loaded the cargo in Georgia in its role as K-C’s

warehouseman, everything else that happened with the cargo was done by Poly as

motor carrier and K-C as owner. Here, unlike multi-state product distribution, there

is no claim or evidence that NDS derived any benefit from Poly’s transport of goods

to Texas or K-C’s use or sale of its goods in Texas. NDS sought and obtained benefit

in Georgia from work it did in Georgia.




                                           17
      B.     That Kimberly Clark has its headquarters and accounting
             department in Texas, and so NDS sent bills to Texas, is no basis for
             personal jurisdiction

      Because foreseeability of injury in Texas from cargo loading in Georgia is not

a Texas jurisdictional contact for the Georgia warehouse (see part II.B.), Jones must

find significance in K-C’s Texas location and instruction to send invoices to it at its

“Accounts Receivable” department in Waco. Precedent rejects each of those as a basis

for personal jurisdiction, as neither is a “contact” indicating a defendant purposefully

availed itself of the privilege of conducting activities in the forum.

      A strong sign Jones (and thus the trial court) is wrong on this point is that he

disagrees with the U.S. Supreme Court. The high court rejects the idea that contracting

with and payment to a forum state resident constitutes minimum contacts that satisfy

personal jurisdiction: “If the question is whether an individual’s contract with an out-

of-state party alone can automatically establish sufficient minimum contacts in the

other party’s home forum, we believe the answer clearly is that it cannot.” Burger

King v. Rudzewiscz, 471 U.S. 462, 478, 105 S.Ct. 2174, 2185 (1985).

      The Fifth Circuit, consistent with Burger King\, likewise rejects Jones’ equation

of contracts and billing with personal jurisdiction. That court has “repeatedly held that

the combination of mailing payments to the forum state, engaging in communications

related to the execution and performance of the contract, and the existence of a


                                           18
contract between the non-resident defendant and a resident of the forum are

insufficient to establish the minimum contacts necessary to support the exercise of

specific personal jurisdiction over the non-resident defendant.” Freudensprung v.

Offshore Technical Services, Inc., 379 F.3d 327, 344 (5th Cir. 2004).

      That K-C is a Delaware corporation with its headquarters in Texas is therefore

no support for asserting personal jurisdiction in Texas over a Tennessee corporation

performing services (loading and unloading; storage) for K-C at a Georgia warehouse.

That the foreign entity (NDS) sent bills for its Georgia services to a Texas address

designated by the Texas contracting party is even farther from turning the Georgia

services into a Texas “contact” for jurisdictional analysis. The Texas billing address

designated by K-C is not a “contact” for personal jurisdiction analysis, or is so

attenuated as to be meaningless.

      K-C, not NDS, determines where bills or payments to it should go. Such

unilateral activity by a Texas resident, as the U.S. Supreme Court said in analogous

circumstances, is “not an appropriate consideration when determining whether a

defendant has sufficient contacts with a forum state to justify an assertion of

jurisdiction.” Helicopteros Nacionales, 466 U.S. 417, 104 S.Ct. 1873. The court there

was discussing the Colombian defendant’s acceptance of checks drawn on a Texas

bank, but invoices going to Texas are no closer to being “contacts.”


                                         19
      The Texas Supreme Court also disagrees with Jones that payments to Texas

support personal jurisdiction. U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760,

763 (Tex. 1977) explained that a contract requiring an out-of-state defendant to pay

a Texas business at its office in Amarillo was a minimal and fortuitous contact, not an

indication that the defendant purposefully conducted activities within Texas. As the

court explained, the parties entered into an Oklahoma contract to be performed in

Oklahoma. The Oklahoma defendant did nothing to support an inference that it sought

the privilege of doing business in Texas, considering that his only Texas “contact”

was sending checks to the address of the Texas contracting party. The court held that

due process did not allow personal jurisdiction on those very analogous facts.

      The Texas Supreme Court has rejected a much stronger case for personal

jurisdiction than Jones presents. Michiana Easy Livin’ Country, Inc. v. Holten, 168

S.W.3d 777 (Tex. 2005) considered a lawsuit based upon an actual contact with

Texas—a product sale to a Texas resident. He looked up a recreational vehicle seller

(retail) seller in Indiana that did not do business in Texas. The only Texas contacts for

the Indiana entity were a phone call with the Texas purchaser, and arrangements for

shipping the RV to Texas. The court held that alleged misrepresentations in the phone

call and shipping of the vehicle did not create personal jurisdiction over the seller:

      Delivery in Texas was at Holten’s sole request and sole expense. If a
      seller of chattels is subject to suit wherever a customer requests delivery,

                                           20
      then the chattel has become its agent for service of process—a
      conclusion the United States Supreme Court has expressly rejected.
      [citing World Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 296,
      100 S.Ct. 559 (1980)].

Michiana, 168 S.W.3d 788.

      The product sale in Michiana resulted from the Texas resident purposefully

availing himself of the inventory and pricing offered by the retailer in Indiana—not

the Indiana business reaching out to Texas as a potential market. Id. at 784, 786. Here

Jones has even less to work with in trying to justify personal jurisdiction. NDS did not

sell a product or deliver anyone’s goods (much less its own) to the forum. K-C already

owned the goods, and Poly (K-C’s contracted motor carrier) delivered them. Nor did

NDS provide services in the forum. All NDS did was (a) load a forum resident’s

goods (b) onto Poly’s tractor-trailer (c) in Georgia (d) pursuant to a contract to

perform services in Georgia. That connects NDS to Georgia, not Texas.

      This court has followed the U.S. Supreme Court and Texas Supreme Court in

holding that financial or administrative paperwork passing to or from Texas is not a

contact supporting personal jurisdiction. Polycomp Administrative Services, Inc. v.

Jackson, 2010 WL 1611760 (Tex. App.—Houston [1st Dist.] 2010) (memorandum

opinion) explained that account statements sent to Texas were “a mere incident of

Polycomp’s custodial role,” and that Polycomp performed its services in California.

      The district court did not have the power to controvert all that controlling

                                          21
precedent, as required to deny NDS’ Special Appearance. The facts are not disputed,

so whether they support personal jurisdiction is a matter of law, reviewed de novo.

II.     There is no specific jurisdiction over NDS because its “contacts” with
        Texas are far below the constitutional minimum

        Jones correctly cites controlling precedent that specific jurisdiction exists if the

defendant’s “alleged liability arises out of or is related to an activity conducted within

the forum.” Moki Mac Expeditions v. Drugg, 221 S.W.3d 569, 576 (Tex. 2007) (CR

71). However, Jones does not even allege—much less prove—facts indicating that

NDS conducted any activity in Texas and that his injury arises out of that Texas

activity.1 Jones’ identification of NDS in the “Parties” section of the Second Amended

Petition includes the conclusory assertion that NDS “does a substantial amount of

business in Texas and directs products to Texas.” (CR 19). The pleading never alleges

any specific factual basis for that conclusory statement, and is nowhere near saying

that NDS committed a tort in Texas.

        Conclusory statements in pleadings have been given no effect in analogous

circumstances. Stephen F. Austin State University v. Flynn, 228 S.W.3d 653, 659

(Tex. 2007) (conclusory allegations of gross negligence not sufficient to plead within



1
 It appears Jones was (as he still does) simply characterizing, as NDS’ Texas “business,” the loading of
and provision of bills of lading for the K-C cargo that Poly transported from the Geogia warehouse to
Texas. In any event, NDS thoroughly controverted that allegation with the Affidavit of its president (SCR
23-24), proving that NDS did no business in and had no contacts with Texas.

                                                   22
Recreational Use statute).

       A.     Jones did not even allege that NDS committed a tort or took any
              action in Texas, as required for specific jurisdiction

       The Texas Supreme Court holds that “specific jurisdiction exists when the

cause of action arises from or is related to purposeful activities in the state.” Moncrief

Oil International, Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013). In

considering whether a foreign defendant purposefully availed itself of the privilege

of conducting business in Texas, “only the defendant’s contacts with the forum are

relevant, not the unilateral activity of another party or a third person.” Id. at 151. The

context “must be purposeful rather than random, fortuitous or attenuated,” and “the

defendant must seek some benefit, advantage or profit by availing itself of the

jurisdiction.” Id. at 151.

       Minimum contacts are not enough for specific jurisdiction. The Texas Supreme

Court explains that “for a non-resident defendant’s forum contacts to support an

exercise of specific jurisdiction, there must be a substantial connection between those

contacts and the operative facts of the litigation.” Moki Mac, 221 S.W.3d 585. That

required causation would be missing here, even if the contacts existed.

              (1)    Jones alleged and the evidence shows that NDS loaded the
                     cargo in Georgia, pursuant to its duties there as a
                     warehouseman

       When K-C and NDS negotiated their Blanket Warehouse Services Agreement,

                                           23
they had Georgia on their minds. Notices to K-C under the Agreement were to be sent

to it at its address in Roswell, Georgia. (SCR 67 at §14.06). It is undisputed that NDS

handled goods in the warehouse in Roswell, Georgia on behalf of K-C. The deposition

of NDS’ president establishes that NDS performed its warehouseman services through

two on-site employees. (SCR 74 at 6/22-7/9). Jones alleged, and it is undisputed, that

NDS “loaded and/or secured the cargo” in question at the Roswell, Georgia

warehouse. (CR 19).

      Jones and the trial court mistakenly based personal jurisdiction over NDS upon

a Texas effect of NDS’ alleged negligent act in Geogia. For specific jurisdiction, only

alleged negligence by NDS in Texas would have been relevant.

             (2)    The Kimberly Clark-NDS contract for warehouseman services
                    in Georgia states that it is governed by Wisconsin law

      To the extent that K-C and NDS did not have Georgia on their minds, they were

thinking about Wisconsin. Section 14.5 of the Blanket Warehouse Services

Agreement states: “Governing Law: This Agreement shall be construed and

performed according to the laws of the state of Wisconsin.” (SCR 66 at §14.05). Even

a choice of law provision directing application of the law of the forum does not in

itself establish personal jurisdiction. Burger King, 471 U.S. 462, 105 S.Ct. 2187. This

court in Polycomp, 2010 WL 1611760 at p. 6, and the Texas Supreme Court in

Michiana, 168 S.W.3d at 792, have treated choice of the law of a foreign jurisdiction

                                          24
as some indication that the foreign defendant did not intend to subject itself to Texas

jurisdiction or purposefully invoke the benefits and protections of Texas law.

             (3)    Absent alleged contacts by NDS with Texas, NDS’ Special
                    Appearance had to be sustained because it is a foreign citizen

      Texas law is clear about the effects of failing to allege or prove facts that

support personal jurisdiction—a special appearance must be sustained.

v. General Interior Construction, Inc., 301 S.W.3d 653, 659 (Tex. 2010) explains:

      The defendant can negate jurisdiction on either a factual or legal basis.
      . . Legally, the defendant can show that even if the plaintiff’s alleged
      facts are true, the evidence is legally insufficient to establish jurisdiction;
      the defendant’s contacts with Texas fall short of purposeful availment;
      for specific jurisdiction, that the claims do not arise from the contacts.

That is exactly the situation here, where Jones clearly pled tortious conduct by NDS

in Georgia and no specific actions by NDS in Texas, unless sending invoices to the

Kimberly Clark accounting department in Waco is though to be a “contact.”

      The Texas Supreme Court explained in Kelly that “GIC failed to plead facts

within the reach of the Long Arm Statute because it did not allege the Officers

committed any tortious acts in Texas.” Id. at 659. The same is true here, where Jones

pled a tortious act in Georgia; only its effects were in Texas. That result, as in Kelly,

is that NDS as the non-resident defendant “could, and did, meet [its] burden to negate

all bases of jurisdiction by proving that [it does] not live in Texas.” Id. at 660. A

plaintiff such as Jones can still present evidence controverting a Special Appearance.

                                            25
Jones tried, but his evidence instead supports NDS’ challenge to personal jurisdiction.

      What was true in Kelly is true here: the plaintiff’s rebuttal evidence was “as

silent as its pleadings regarding the Officers’ Texas contacts related to its claims,”

such that “the Officers’ special appearance should have been granted.” Id. at 660.

Here, too, Jones does not attempt and could never succeed in showing that NDS’

purported Texas “contacts” (a contract with a Texas corporation in another state to

perform services in that state, and bills sent to a Texas address) are substantially

related to the operative facts in this lawsuit (alleged loading error in Georgia that

made the cargo dangerous to unload in Texas). Jones presumes that harm in Texas

from loading in Georgia is a jurisdictional contact for the Georgia services provider

with Texas. As shown below, he never explains or cites precedent for that conclusion.

He cannot, as courts universally reject such an “effects” or “directed tort” test.

      B.     Effects within the forum from the act of a party operating entirely
             outside the forum do not support specific jurisdiction

      Jones hangs his argument for personal jurisdiction on a peg that cannot support

it, for reasons the Texas Supreme Court explained in Michiana. Jones argues the

“effects” test, which has also been described as declaring jurisdiction where the

defendant “directed a tort.” Michiana, 168 S.W.3d 790. Citing the U.S. Supreme

Court decision in Helicopteros Nacionales, the Texas Supreme Court explains that

effects or “directed a tort” argument impermissibly “shifts” a court’s focus from the

                                          26
‘relationship among the defendant, the forum and the litigation’ to the relationship

among the “plaintiff, the forum . . . and the litigation.” Id. at 790. See also National

Industrial Sand v. Gibson, 897 S.W.2d 769, 795 (Tex. 1995)

       Such an argument for personal jurisdiction is mistaken because “minimum-

contacts analysis focuses solely on the actions and reasonable expectations of the

defendant,” while an argument for “directed-a-tort jurisdiction confuses the roles of

judge and jury by equating the jurisdictional inquiry with the underlying merits.” Id.

at 790. Jones’ Response to the Special Appearance is a bold (and so far successful)

effort to conflate the foreseeability of harm in Texas (relevant to his tort claim) with

minimum contacts by NDS with Texas (essential to his jurisdictional claim).

       Jones is correct that improper loading in one state can foreseeably cause harm

in another state where the cargo is unloaded (whether that is true here is a non-issue,

beyond the record). However, Jones is wrong that foreseeability of injury in Texas

from cargo loading in Georgia means that the foreign defendant loading cargo in

Georgia has purposefully availed itself of the privilege of conducting business in (has

minimum contacts with) Texas. Far from establishing personal jurisdiction over NDS

in Texas, Jones’ allegations and proof of NDS’ Georgia-only operations negates it.

III.   NDS did not waive its Special Appearance by participating in merits-relatd
       discovery and filing or joining non-dispositive motions

       Apparently realizing the deficiencies in his personal jurisdiction claim, Jones

                                          27
began his Response to the Special Appearance by asking the trial court to find waiver

of the Special Appearance in routine discovery requests and motions. Absent findings

of fact and conclusions of law, the trial court is presumed to have done so. American

Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). The trial

court erred because the discovery actions of NDS as a matter of law do not constitute

waiver of its Special Appearance. Texas Rule of Civil Procedure 120a states:

      The issuance of process for witnesses, the taking of depositions, the
      serving of requests for admissions, and the use of discovery processes,
      shall not constitute a waiver of such special appearance. . . . Any motion
      to challenge the jurisdiction provided for herein shall be heard and
      determined before a motion to transfer venue or any other plea or
      pleading may be heard.

NDS’ only “plea” was its Special Appearance. It did not submit any part of its

pleading (answer) to be “heard and determined” before a Special Appearance ruling.

      A.     Participating even in merits discovery does not deliberately
             relinquish a challenge to personal jurisdiction

      Nothing in the discovery efforts and proceedings in this lawsuit indicates or

supports an inference that NDS waived its challenge to personal jurisdiction. Waiver

is “an intentional relinquishment of a known right or intentional conduct inconsistent

with claiming that right.” Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003).

There is no evidence that NDS intentionally relinquished its challenge to personal

jurisdiction over it in Texas. The only argument left to Jones is that NDS’ pursuit of


                                         28
merits-related discovery is inconsistent with a challenge to the jurisdiction, and must

be construed as waiver.

      Jones comes nowhere near showing that merits-related discovery proceedings

are “inconsistent with” simultaneously asserting a special appearance—i.e., that no

defendant would rationally or ordinarily do both at the same time. The Texas Supreme

Court makes clear that “for implied waiver to be found through a party’s actions,

intent must be clearly demonstrated by the surrounding facts and circumstances.” Id.

at 156. Defendants routinely engage in merits discovery while asserting special

appearances, for reasons explained in part III.B. below. Merits discovery is a

contingency—preparation of defenses in recognition that the trial court may declare

personal jurisdiction. “There can be no waiver of a right if the person sought to be

charged with waiver says or does nothing inconsistent with intent to rely upon such

a right.” Id. at 156. NDS never abandoned its Special Appearance; it just did not count

upon the trial court granting it. Events have vindicated its caution.

      Jones asserts, as evidence of waiver of the Special Appearance, four motions

filed or joined by NDS regarding discovery:

      1.     A motion to quash notices of the depositions of witnesses Wayne
             Carroll and Steve Wade based upon a scheduling conflict;

      2.     A motion to compel more complete answers by Jones to
             Interrogatories;


                                          29
      3.     A motion to compel production of driver’s logs and DVIR records
             by Jones; and

      4.     A motion for continuance of the expert designation deadline.

(Response to Special Appearance, pp. 4-6).

      There is no dispute that the last three motions involved merits-related issues.

Jones, however, fixates upon “affirmative relief” or the “merits” of the lawsuit to the

point of missing the obvious distinction between merits-related discovery and relief

on the merits. NDS’ discovery motions sought information, whereas “[a] claim for

affirmative relief must allege a cause of action, independent of the plaintiff's claim,

on which the claimant could recover compensation or relief.” University of Texas

Medical Branch v. Blackmon, 195 S.W.3d 98 (Tex. 2006) (construing Tex. R. Civ. P.

162). Plain meaning, precedent and common experience in defending lawsuits show

that merits-related discovery motions are nothing like requests for affirmative relief,

and as such cannot be considered a waiver of a personal jurisdiction defense.

      First, Rule 120a (quoted above) explicitly declares that depositions and “the use

of discovery processes” is not a waiver of a special appearance. The rule does not

limit that statement to jurisdictional discovery. Instead, Rule 120a declares only two

timing requirements for a special appearance: (1) it must be filed prior to any other

pleading or motion; and (2) it must be “heard and determined before . . . any other

plea or pleading may be heard.”

                                          30
      It is undisputed or clearly established that NDS complied with both the due

order of filing and the due order of hearing requirements. It did not present any “plea

or pleading” for ruling prior to its Special Appearance. A motion to compel discovery

or for continuance of discovery deadlines is universally understood to be distinct from

a “plea or pleading.” The former seek action by the court, typically (and in this case)

regarding procedural disputes, while the latter seek affirmative relief or other

adjudication on the merits.

      The Texas Supreme Court, drafter of the Texas Rules of Civil Procedure, knew

the difference between a motion and a “plea or pleading,” as shown by its several and

distinct references to such filings in Rule 120a. By its own standards for statutory

construction, the supreme court must be assumed to have intended to limit the due

order of hearing requirement to any “plea or pleading” other than the special

appearance, not including motions. The Texas Supreme Court “presumes the

Legislature deliberately and purposefully selects words and phrases it enacts, as well

as deliberately and purposefully omits words and phrases it does not enact.” Texas

Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012). That is no less true of

rules promulgated by the court under authority from the Legislature, which have the

status of law. In re City of Georgetown, 53 S.W.3d 328, 336 (Tex. 2001).

      Consistent with R. 120a, the supreme court has never said that merits-related


                                          31
discovery or motions regarding it waive a special appearance. The supreme court first

addressed the issue of waiver-by-motion in Dawson-Austin v. Austin, 968 S.W.2d 319

(Tex. 1998), in which a specially appearing defendant also filed a motion to quash

service of citation and a plea in abatement. She also later filed a motion for

continuance of a hearing set by her opponent on her filings other than the special

appearance. The supreme court rejected the then-held view of some appellate courts

that a filing not expressly made “subject to” a special appearance was a waiver of the

special appearance.

      Dawson-Austin is cited today regarding waiver because the court added, in

dicta, that the specially appearing defendant was “entitled to ask for more time for

discovery on her motion to quash, provided she did not attempt to take that discovery

before the special appearance was decided.” Id. at 323. That is dictum rather than a

holding because only jurisdictional discovery was at issue. The court had no need to

address, and did not address, whether seeking non-jurisdictional discovery prior to a

ruling on the special appearance is a waiver of the special appearance.

      Three years later, this court rejected an argument that a motion to quash “certain

[unspecified] discovery” waived defendants’ special appearances. Anderson v.

Bechtle, 2001 WL 930205, p. 2 (Tex. App.—Houston [1st Dist.] 2001) (unpublished).

This court noted: “All requests for affirmative relief do not waive a special


                                          32
appearance,” and “Waiver occurs only if the relief requested is inconsistent with the

defendant’s assertion that the district court lacked jurisdiction.” Id. at p. 2.

      This court was still more explicit on the issue two years later, in Silbaugh v.

Ramirez, 126 S.W.3d 88 (Tex.App.—Houston [1st Dist.] 2002). There the court held

that merits-related discovery and motions regarding it did not waive a defendant’s

special appearance. The court noted that “the Texas Supreme Court, in dicta,

interpreted Rule 120a as limiting discovery to facts relevant to the special appearance”

(i.e., in Dawson-Austin). Id. at 93. However, this court said it had “previously declined

to follow the dicta in Dawson-Austin, and instead followed the plain language of the

statute,” Id. at 93, referring to Minucci v. Sogevalor, S.A., 14 S.W.3d 790, 801 (Tex.

App.—Houston [1st Dist.] 2000). The court held in Silbaugh that the defendant’s

motions regarding discovery “were part of the discovery process and did not waive

her special appearance.” 126 S.W.3d 93. The court’s conclusion flowed from its

recognition that Rule 120a “does not limit discovery to only those issues that are

related to the special appearance.” Id. at 93.

      The supreme court again considered the waiver issue in Exito Electronics Co.,

Ltd. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004). There the court of appeals had ruled

that a defendant waived its special appearance by (among other things) “participating

in the trial court’s resolution of discovery matters before the trial court ruled on the


                                            33
special appearance.” Trejo offers no guidance here because the motions pertained only

to jurisdictional discovery, and the court did not consider the effect of merits-related

discovery. The court made that clear: “We therefore express no opinion on the effect

of parties’ participation in discovery that is unrelated to the special appearance before

its resolution.” Id. at 307, n.24. Thus, it is this court’s opinions that control the issue.

       This court again addressed merits-related discovery and motions regarding it

in Forest River, Inc. v. Quality Frames, Inc., 2005 WL 615424 (Tex. App.—Houston

[1st Dist.] 2005) (memorandum opinion). The court held that pursuit of a motion to

quash an expert deposition does not waive a special appearance. The opinion explains

that Trejo is not to the contrary because the supreme court expressly declined to

address whether merits discovery has an effect upon a yet-to-be presented special

appearance. This courts followed its holding in Silbaugh, concluding that the plain

meaning of Rule 120a does not limit discovery to jurisdictional issues.

       First Oil, PLC v. ATP Oil & Gas Corp., 264 S.W.3d 767 (Tex. App. —Houston

[1st Dist.] 2008) rejected a waiver argument based upon pursuit of motions regarding

jurisdictional discovery. It, like Dawson-Austin, does not address the issue here.

       Most recent of the relevant opinions is In Re Stern, 321 S.W.3d 828 (Tex.

App.—Houston [1st Dist.] 2010). The opinion resolved a distinct issue: whether a

plaintiff has a right to take non-jurisdictional discovery against a specially appearing


                                            34
defendant. It does not. The court held in Stern that the trial court abused its discretion

in ordering that the specially appearing defendant must produce his computer hard

drive for forensic examination in a defamation lawsuit, prior to a hearing on his

special appearance. The appeal did not present a waiver issue, yet the court had to

apply precedent that mentions waiver. In doing so it appropriately distinguished a

right to discovery on a special appearance from the waiver of one.

       Stern concluded that Rule 120a(3) authorizes discovery prior to a special

appearance only regarding facts essential to justify opposition to the special

appearance, and does not authorize postponing the special appearance hearing in order

to allow discovery “that is unnecessary or irrelevant to the establishment of

jurisdictional facts.” Id. at 839-40. Stern is significant for its discussion of the supreme

court’s opinion in Trejo, and especially for distinguishing the issues of (1) whether

there is a right to take merits-related discovery from a specially appearing defendant

prior to a hearing on jurisdiction; and (2) whether a specially appearing defendant

waives its jurisdictional challenge if it takes merits-related discovery before a hearing.

       Stern correctly refers to Trejo as having “pointedly expressed ‘no opinion on

the effect of parties’ participation in discovery that is unrelated to the special

appearance before its resolution.’” 321 S.W.2d 839. This court did not treat its ruling

in Stern against hard drive discovery as a rejection of or inconsistent with its ruling


                                            35
against waiver in Forest River and Silbaugh. Instead, the court said rulings that pursuit

of merits-related discovery is not waiver of a special appearance “are limited to those

situations in which the issue is whether a defendant waives a special appearance by

participating in discovery,” and do not apply to the issue (as in Stern) whether a

discovery ruling is an abuse of discretion in light of a special appearance. Id. at 840.

The result of all this precedent is simple. This court has never held that merits-related

discovery waives a special appearance—only that it does not.

      That is not a lonely position. The other Houston appellate court agrees that

merits-related discovery and motions regarding it do not waive a special appearance.

Horowitz v. Berger, 377 S.W.3d 115, 124 (Tex. App.—Houston [14th Dist.] 2012). As

Horowitz explains, “Interrogatories and requests for admission are not pleas, pleadings

or motions.” Id. at 124. The supreme court explained in Trejo that “pleadings”

consists of petitions and answers, while a “motion” is an “application requesting a

court to make a specified rule or order.” 142 S.W.3d 305, n.11. The court’s distinction

between a motion and a pleading is consistent with it having drafted Rule 120a to

require that a special appearance “be heard and determined” before “any other plea or

pleading may be heard,” but without not before any motion may be heard.

      The Fourteenth Court explains the state of precedent as follows:

      The two Houston-based courts of appeals have held that a defendant’s
      participation in merits discovery without having any motions regarding

                                           36
      that discovery heard before the special appearance does not constitute a
      general appearance waiving that defendant’s special appearance.”

Lisitsa v. Flit, 419 S.W.3d 672, 678 (Tex. App.—Houston [14th Dist.] 2013).

      Presenting discovery motions likewise is not waiver. To be waiver, a discovery

motion would have to violate the “due order of hearing” requirement. It cannot,

because R. 120a’s due order of hearing pertains only to “a motion to transfer venue

or any other plea or pleading.” See also Gutierrez v. Cayman Islands firm of Deloitte

& Touche, 100 S.W.3d 261, 267 (Tex.App.—San Antonio 2002) (petition for writ of

mandamus, to overturn an order compelling non-jurisdictional discovery, did not

waive petitioner’s special appearance because the petition was not a “pleading,” and

“Rule 120a specifies that the use of discovery processes does not constitute waiver”).

      Lawyers expect and find careful draftsmanship of rules by the Texas Supreme

Court, especially after scrutiny by the Bar and thorough review by committees. It is

inconceivable that the supreme court meant to include discovery motions in Rule

120a’s due order of hearing requirement, yet somehow forgot to say so, or equated a

motion with a “plea or pleading” when its own precedent clearly distinguishes them.

      B.     Merits-related motions for discovery and continuance may be
             important to defending a lawsuit if a special appearance is denied

      Jones and the district court are wrong about waiver for reasons going beyond

plain meaning and precedent. Defense counsel do not have the luxury of ignoring


                                         37
practical considerations, such as making sure they can defend a lawsuit on the merits

if a special appearance is denied and pre-trial discovery deadlines are not thereafter

reset. The hard-won wisdom of experience teaches trial lawyers that it is very risky

to limit their discovery to jurisdictional facts in support of a special appearance. The

risk begins with the prevalence of docket control deadlines for discovery and early

trial settings. It then grows with the typical delay in obtaining, providing and making

admissible the jurisdictional discovery needed before all parties will agree to or the

court will order a hearing on a special appearance. It continues with the uncertainty

of the district court’s ruling on a special appearance. Merits-related discovery is a

contingency against limited preparation time following denial of a special appearance.

      Defense lawyers function in a litigation environment in which pretrial discovery

deadlines are rarely if ever bifurcated based upon a defendant having filed a special

appearance. See, e.g., In re: Alford Chevrolet-Geo, 997 S.W.2d 173 (Tex. 1999)

(bifurcated discovery rejected even for class action certification, noting intertwining

of that issue with merits). Here the district court did not issue an initial set of

deadlines for jurisdictional discovery, to be followed (after special appearance rulings)

by a second set of deadlines for merits-related discovery.

      A defense lawyer does not have the luxury of assuming, on behalf of a client

whose fate depends upon him, that it is permissible or desirable to ignore pretrial


                                           38
discovery deadlines that apply to his client without limitation to jurisdictional

discovery. If he does, his client will be at the mercy of the court in obtaining merits

discovery via a new docket control order. He cannot just assume the trial court will

extend discovery deadlines if little or no time remains for discovery after a special

appearance is adjudicated. Some relief from deadlines might be expected if a specially

appearing defendant foregoes merits discovery pending a ruling on jurisdiction, but

like any discretionary ruling it is not assured. Even if the court allows more time, a

defendant that has foregone merits discovery and whose special appearance is denied

will be less prepared than other parties who have conducted merits discovery. Lawyers

also know that witnesses may move, disappear, change jobs (loyalties) and even die

in the months or even years that may pass before a special appearance is ruled upon.

      Competent and experienced defense counsel therefore hope for the best and

prepare for the worst by routinely taking merits-related discovery within the court-

ordered discovery deadlines, while pursuing in parallel their clients’ special

appearances. Counsel reading R.120a see that it explicitly allows discovery without

restricting it to jurisdictional facts, and sets a due order of hearing requirement only

for motions to transfer venue and a “plea or pleading.” If trial counsel look, they will

find precedent from both Houston appellate courts stating that engaging in merits-

related discovery (including motions) prior to a ruling on a special appearance is not


                                          39
a waiver of that special appearance. The practical considerations often leave trial

counsel with a strong motive to engage in merits discovery if no one is objecting to

it, and cost is the only downside of participating in it.

      Merits discovery, in the face of such litigation imperatives and uncertainties,

is thus prudence rather than waiver. There is nothing about merits discovery, or

motions pertaining to it, that constitutes or signals abandonment of a challenge to

personal jurisdiction. There are two red-lines that cannot be crossed without waiver:

(1) due order of filing; and (2) due order of hearing. NDS did not cross either one.

      Jones attempted to add delay as a waiver argument, but he has no basis to do

so. Less than a year passed between NDS’ special appearance (March 17, 2014) and

the hearing on it (February 23, 2015). R. 120a does not include a deadline or delay

provision, and special appearances are often decided more than one year after the

defendant’s appearance. See American Type Culture Collection, Inc. v. Coleman, 83

S.W.3d 801 (Tex. 2002) (3 year delay). This court and others have rejected delay-

based waiver claims as a matter of law, absent any hearing deadline in R. 120a.

Peninsula Asset Management (Cayman) Ltd. v. Hankook Tire Co., Ltd., 2006 WL

1030185, p.4 (Tex.App. —Ft. Worth 2006) (unpublished) (18 months); Robertson v.

Hensel Phelps Construction Co., 1999 WL 233599, p. 1 (Tex.App.—Houston [1st

Dist.] 1999) (one year); Horizon Shipbuilding, Inc. v. Blyn II, Holding, LLC, 324


                                           40
S.W.3d 840, 846 (Tex.App.—Houston [14th Dist.] 2010) (one year).

      Because Texas courts lack a constitutional basis for personal jurisdiction over

NDS, the district court’s ruling cannot stand unless merits-related discovery is treated

as waiver. Doing so would require re-writing various controlling texts, as follows:

      1.     Add words to Rule 120a(1): “the use of discovery processes shall
             not constitute a waiver of such special appearance [if limited to
             jurisdictional facts];”

      2.     Add words to Rule 120a(2): “Any motion to challenge the
             jurisdiction shall be heard and determined before a motion to
             transfer venue or any other plea or pleading [or motion] may be
             heard;”

      3.     Re-write the supreme court’s opinion in Trejo so that it implies
             rather than disavows a ruling about the effect of non-jurisdictional
             discovery prior to a hearing on a special appearance; and

      4.     Re-write the no-waiver opinions of this court (Anderson, Forest
             River and Silbaugh) in order to treat merits discovery and related
             motions as waiving a special appearance.

Some of those re-writes are beyond the court’s power. There is no reason for re-writes

within this court’s power (en banc reconsideration of panel precedent) when its

opinions on jurisdiction and waiver are correct. It is the district court that is wrong.

      This lawsuit is, to date, a story of un-neighborly overreach by Texas. Jones

insists upon having a Texas lawsuit against a Tennessee company that does business

in Tennessee and Georgia, even though it has zero connection to Texas beyond

contracting with a Texas company in Georgia and then mailing invoices to a Texas

                                          41
accounting office designated by that company. After specially appearing, the foreign

defendant received a May 13, 2014 court order allowing less than 6 months before

expert designations were due, less than 7 months before a discovery cutoff, and less

than 8 months to trial. It engaged in discovery in preparation to defend itself at trial

if its special appearance were denied, only to be told that (contrary to the plain text of

R. 120a) using the discovery process waived its challenge to personal jurisdiction.

This is a Twilight Zone experience for a hapless foreigner whom Jones had no basis

to sue in Texas. The district court’s denial of the special appearance violates due

process, as seen in controlling precedent, and begs for correction.

                              CONCLUSION AND PRAYER

      Nationwide Distribution Services, Inc. therefore prays that

      a.     the Order denying its Special Appearance be reversed;

      b.     this court render judgment sustaining its Special Appearance because the

             undisputed facts establish lack of personal jurisdiction over and lack of

             waiver by appellant, as a matter of law, and

      c.     for such further relief to which appellant may be entitled.

                                         Respectfully submitted,

                                         RAMEY, CHANDLER, QUINN & ZITO, P.C.

                                         By:     /s/ Jack McKinley
                                                Jack McKinley

                                           42
                                              State Bar No. 13716300
                                              Robert L. Ramey
                                              State Bar No. 16498200
                                              750 Bering, Suite 600
                                              Houston, Texas 77057
                                              Telephone: (713) 266-0074
                                              Facsimile: (713) 266-1064
                                              jmm@ramey-chandler.com

                                              COUNSEL FOR APPELLANTS


                      CERTIFICATE OF COMPLIANCE

       The undersigned certifies that in compliance with Tex. R. App. P. 9.4(e), this
Brief has been prepared using conventional typeface no smaller than 14-point for text
and 12-point for footnotes, and contains 10085 words (excluding any parts exempted
by Tex. R. App. P. 9.4(i)(1)).


                                               /s/ Jack McKinley
                                              JACK McKINLEY




                                         43
                        CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of Brief of Appellant has been
served upon all counsel of record, in accordance with the rules, as follows:

      Jason A. Itkin                              Via e-service
      Cory D. Itkin
      Noah M. Wexler
      Arnold & Itkin, LLP
      6009 Memorial Drive
      Houston, Texas 77007
      Counsel for Appellee,
      Robert Jones

      Ruark D. Mershon                            Via e-service
      2000 W. Marshall Drive
      Grand Prairie, Texas 75051
      Counsel for Appellee,
      Poly Trucking, Inc.



on this   8th      day of     May     , 2015.


                                              /s/ Jack McKinley
                                            JACK McKINLEY




                                       44
                                        NO. 01-15-00232-CV


                                           IN THE
                                     COURT OF APPEALS
                                          FOR THE
                                  FIRST DISTRICT OF TEXAS


                   NATIONWIDE DISTRIBUTION SERVICES, INC.,
                                  Appellant

                                                    vs.

                      ROBERT JONES and POLY TRUCKING, INC.,
                                    Appellees


                                  APPELLANTS’ APPENDIX


Order Overruling Defendant’s Special Appearance
(Signed February 23, 2015).. .......................................................................... TAB 1




                                                    45
                                                                                2/20/2015 9 55 35 AM
                                                                                             -
                                                                                Chris Daniel District Clerk
                                                                                Harris County
                                                                                Envelope No 4224121
                                                                                By RODRIGUEZ, JIMMY E
                                                                                Filed 2/20/2015 9 55 35 AM
                                           CAUSE NO 2013-64642

Robert Jones                                   §      IN THE DISTRICT COURT OF
                                               §
      Plaintiff,                               §
                                               §      HARRIS COUNTY, TEXAS
                                                                                                 ft
V                                              §                                             Sf/)/>)/
                                               §
Kimberly-Clark Corporation,                    §
Kimberly-Clark Services, Inc ,                 §
Kimberly-Clark World-Wide, Inc ,               §
Nationwide Distribution Services, Inc ,        §
and Nationwide Express Inc                     §
      Defendants                               §      133rd JUDICIAL DISTRICT
            ORDER OVERRULING DEFENDANTS SPECIAL APPEARANCE

       The Court has considered Defendant Nationwide Distributions Services, Inc ’s

Special Appearance, all       responsive   briefing, the Court’s file   in   this matter, and/or the

arguments of counsel and finds that the special appearance lacks merit and should be

overruled

       It   is   therefore ORDEREDÿ.that Defendant Nationwide Distributions Services, Inc ’s
                                     A/Y
Special Appearance is in all things DENIED/OVERRULED



       SIGNED this             day of                                            2015




                                               PrÿsÿTng Jullge                        ?-»ÿ




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