                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 October 2, 2012 Session

COVISTA COMMUNICATIONS, INC. v. OORAH, INC. d/b/a CUCUMBER
                COMMUNICATIONS, INC.

                Appeal from the Chancery Court for Hamilton County
                  No. 11-0635    W. Frank Brown, III, Chancellor


            No. E2012-00720-COA-R3-CV-FILED-NOVEMBER 14, 2012
                       _________________________________

This appeal involves in personam jurisdiction over an out-of-state defendant. The chancery
court granted the defendant’s motion to dismiss for lack of personal jurisdiction pursuant to
Rule 12.02(2) of the Tennessee Rules of Civil Procedure. The court found that the defendant
had not purposely availed itself of the privilege of doing business in Tennessee and did not
have sufficient contacts with Tennessee to be subjected to jurisdiction in this state. The
plaintiff, a corporation that claims its principal place of business is in Tennessee, appeals.
We find that the circumstances do not support the exercise of personal jurisdiction over the
defendant foreign corporation by a Tennessee court. Accordingly, we affirm.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                            Affirmed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and D. M ICHAEL S WINEY, J., joined.

William H. Horton, Chattanooga, Tennessee, for the appellant, Covista Communications, Inc.

Sam D. Elliott, Chattanooga, Tennessee, and Steven G. Storch and Matthew D. Kane, New
York, New York, for the appellee, Oorah, Inc. d/b/a Cucumber Communications, Inc.


                                         OPINION

                                    I. BACKGROUND

     Capsule Communications, Inc. (“Capsule”) and the defendant, Oorah, Inc., d/b/a
Cucumber Communications, Inc. (“Oorah”), negotiated and executed an agreement dated
November 1, 2001 (“the Reseller Agreement”), in which Capsule, a Delaware corporation
with its principal place of business in Pennsylvania, agreed to deliver telecommunications
services for customers provided by Oorah. Oorah, a corporation organized under the laws
of New Jersey with its principal place of business in that state, is a non-profit organization
that serves the New York tri-state Jewish community and fund-raises in part by marketing
telecommunications services to members of the orthodox Jewish community in the New
York area.

       According to Oorah, the Reseller Agreement relates that Oorah was to receive
monthly commissions from Capsule based upon the usage charges paid by the Oorah-
provided customers purchasing Capsule’s telecommunications services.1 Further, Oorah
observed that the Reseller Agreement provides “the rights and obligations of the parties
hereunder and thereunder shall be construed in accordance with and be governed by the laws
of the Commonwealth of Pennsylvania” and “any legal action or proceeding . . . may be
brought in the state courts or the courts of the United States of America located in
Philadelphia, Pennsylvania . . . .” The original agreement refers to the jurisdiction of such
courts as “non-exclusive.”

       In February 2002, the plaintiff, Covista Communications, Inc. (“Covista”), acquired
Capsule. Per the Reseller Agreement, the Oorah contract was assigned to Covista.2
Subsequently, Covista began providing the telecommunications services to the customers
obtained by Oorah.

       According to Covista, around the time it acquired Capsule, it relocated its principal
place of business from New Jersey to Chattanooga, Tennessee. Two years later, on June
2004, Oorah and Covista executed another contract, an Independent Authorized Master
Agent Agreement (“the Agent Agreement”).3 Although this second agreement was executed


        1
       Oorah was authorized to resell the services provided by Capsule (later Covista). The Reseller
Agreement provides as follows:

        Throughout the term of the agreement, Reseller’s revenue commitment will be eighty (80)
        percent of the previous month’s billing with a minimum qualifying usage commitment of
        $150,000 upon a six-month ramp. If after the six-month ramp, Reseller’s net charges (after
        any applicable discounts hereunder) for the services are less than the minimum commitment,
        Reseller shall pay [Covista] the shortfall. . . .
        2
         The Reseller Agreement contains a clause that gave Capsule an unqualified right to assign its rights
under the agreement without Oorah’s consent.
        3
            Covista claimed the Agent Agreement did not supersede the Reseller Agreement. Oorah contended
                                                                                             (continued...)

                                                     -2-
when Covista’s principal office purportedly was located in Tennessee, it identifies Covista
as “a corporation incorporated under the laws of the State of Delaware, having a principal
office at 3331 Street Road, Bensalem, PA 19020.” The Agent Agreement specifically
provides that Pennsylvania law shall apply to its interpretation and contains a forum selection
clause conferring exclusive jurisdiction with the courts of Pennsylvania (“the Courts of
Philadelphia or Norristown, PA, for a State claim, and Philadelphia, PA, for a Federal
claim.”).

        In approximately May 2009, Oorah discovered that Covista had ceased paying the
monthly commissions. Covista filed this action for breach of contract on August 17, 2011,
alleging that Oorah failed to meet certain revenue commitments to Covista and was obligated
to pay “shortfalls.” Covista also sought a declaratory judgment regarding the amount of any
set off that may be owed to Oorah. Covista asserted that Oorah’s business transactions in
Tennessee made it subject to the jurisdiction of a Tennessee court. Covista contended that
although the Agent Agreement contained a mandatory forum selection clause selecting
certain Pennsylvania courts, it applied only with respect to legal actions “arising directly or
indirectly from this Agreement.” Covista asserted the claims in this case arose under the
Reseller Agreement rather than the Agent Agreement, as the forum selection clause of the
Reseller Agreement was not mandatory and the jurisdiction of the courts was “non-
exclusive.” Thus, according to Covista, the forum selection clause did not apply. Two days
later, on August 19, 2011, Oorah commenced its own action in the Supreme Court of New
York.

       Shortly after this case was initiated, Oorah filed a motion to dismiss for lack of
personal jurisdiction, accompanied by the affidavit of Jeffrey Stern, the Chief Executive
Officer of Oorah.4 Oorah took the position that it was not subject to the jurisdiction of the
Tennessee courts because it did not have sufficient contacts within this state. Covista filed
a response, along with the affidavit of Sandra Forquer, Controller and Vice President of



        3
         (...continued)
that the Agent Agreement did supersede or modify the Reseller Agreement, and that Covista’s argument
contradicts the Agent Agreement’s merger clause.
        4
          Rule 12.03 of the Tennessee Rules of Civil Procedure provides that: “[i]f, on a motion [to dismiss],
matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in Rules 56, and all parties shall be given reasonable
opportunity to present all material made pertinent to such a motion by Rule 56.” However, the Tennessee
Supreme Court has previously held that this general rule is inapplicable when the motion is one involving
jurisdictional issues. See Nicholstone Book Bindery, Inc. v. Chelsea House Publishers, 621 S.W.2d 560, 561
n. 1 (Tenn. 1981).

                                                     -3-
Finance.5

       A hearing was held on December 13, 2011. The trial court, in a December 30, 2011,
decision, dismissed Covista’s complaint. The court noted as follows:

        First, in both contracts, the contracting parties agreed to make the courts of
        Pennsylvania the forum for litigation between the parties. Forum selection
        clauses are generally enforced in Tennessee. . . . Plaintiff has not put forward
        any arguments why the forum selection clause is invalid and this court, after
        reviewing the factors and fairness of enforcing the forum selection clause,
        finds no reason not to enforce the clause. Thus, the case must be dismissed on
        the basis of the forum selection clause in the parties’ agreements.

        Second, the court finds that it does not have personal jurisdiction over Oorah
        in Tennessee. The work that is done in Tennessee is being done by Covista,
        pursuant to contract. There is no doubt that the court would have personal
        jurisdiction over Covista. However, the court does not believe Plaintiff has
        shown how Oorah has purposefully availed itself of the privilege of acting in
        Tennessee for this court to sufficiently have personal jurisdiction over Oorah.

        Plaintiff has attempted to shift the focus away from analyzing Oorah’s contacts
        with Tennessee and instead focuses on Plaintiff’s own contacts with
        Tennessee. This court certainly does not have general jurisdiction over Oorah,
        and to the extent it is alleged this court has specific jurisdiction because
        Defendant communicated with Plaintiff by phone and email, this court rejects
        that argument. The court does not believe any communications by Oorah
        about contractual issues would be sufficient to assert personal jurisdiction over
        Oorah. The nature and extent of these communications were not detailed by
        Ms. Forquer[;] rather they were merely generalized, nonspecific allegations.
        The mere act of communicating via phone and/or email with a resident of a
        forum is not enough to subject a foreign defendant to jurisdiction within the
        forum. See Kerry Steel, Inc. v. Paragon Industries, Inc., 106 F.3d 147, 151
        (6th Cir. 1997). These are the types of generalized contacts that do not by


        5
         “[I]f a defendant supports its motion [to dismiss] with affidavits, the plaintiff must establish its
prima facie showing of personal jurisdiction over the defendant by filing its own affidavits or other written
evidence.” Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 644 (Tenn. 2009) (citing Chenault v. Walker,
36 S.W.3d 45, 56 (Tenn. 2001); Mfrs. Consol. Serv., Inc. v. Rodell, 42 S.W.3d 846, 854-55 (Tenn. Ct. App.
2000)). A failure to establish a prima facie showing with affidavits or other materials is fatal to a plaintiff’s
claim.

                                                      -4-
       themselves create a claim of jurisdiction. See LAK, Inc. v. Deer Creek Enters.,
       885 F.2d 1293, 1300-1301 (6th Cir. 1989) (stating “[t]he telephone calls and
       letters on which the plaintiff’s claim of jurisdiction primarily depends strike
       us as precisely the sort of ‘random,’ ‘fortuitous’ and ‘attenuated’ contacts that
       the Burger King Court rejected as a basis for haling non-resident defendants
       into foreign jurisdictions”). The other actions Ms. Forquer specified are acts
       of Covista in carrying out its contractual obligations to Oorah.

       The existence of a contract between a foreign defendant and resident plaintiff
       alone does not itself confer jurisdiction to the plaintiff’s home forum. See
       Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985). If Covista could
       change its location and thereby make a contracting party with it subject to the
       jurisdiction of the new state, because it communicated with Covista about
       contractual matters, then this entire area of law would be turned upside down.
       In effect, this scenario happened here because Covista acquired Capsule and
       assumed the contract with Oorah. Sometime later, Covista changed its
       principal place of business from New Jersey to Tennessee. Covista changed.
       Oorah did not change its location or business. It would not be “fair and
       substantially just” to make Oorah litigate this case in Tennessee.

                                             ***

       In its motion to alter or amend, Covista argued that it has never had any connection
to Pennsylvania, and that the language in the Agent Agreement as to its principal office
location was erroneous. The trial court declined to revise its ruling. Covista filed a timely
appeal.


                                         II. ISSUES

       We restate the issues raised by Covista as follows:

       1. Whether the trial court erred in concluding that Oorah lacked sufficient
       contacts with Tennessee through its ongoing business relationship with a
       corporation located in Tennessee to establish personal jurisdiction.

       2. Whether the forum selection clauses in the parties’ contracts precluded
       filing of suit in Tennessee where Covista’s claims did not involve the contract
       containing the mandatory forum selection clause, neither party had a
       connection to the forum selected, and Oorah did not file its separate suit in that

                                              -5-
       forum.


                             III. STANDARD OF REVIEW

        A trial court’s decision to grant or deny a motion pursuant to Rule 12.02(2) of the
Tennessee Rules of Civil Procedure for lack of personal jurisdiction presents a question of
law. Accordingly, we review the trial court’s decision de novo, with no presumption of
correctness, for the purpose of determining whether the plaintiff established a prima facie
showing of personal jurisdiction over the defendant. JRM Invs., Inc. v. National Standard,
LLC, No. W2011-01143-COA-R3-CV, 2012 WL 1956421, at *2 (May 31, 2012). The
plaintiff need only demonstrate personal jurisdiction by a preponderance of the evidence.
Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 644 (Tenn. 2009) (citations omitted). In
reviewing a trial court’s decision to grant a motion to dismiss for lack of personal
jurisdiction, we must take the plaintiff’s allegations of fact as true. Tenn. R. App. P. 13(d);
Bell v. Icard, Merrill, Cullis, Timm, Furen and Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn.
1999).

         “The Due Process Clause protects an individual’s liberty interest in not being subject
to the binding judgments of a forum with which he has established no meaningful ‘contacts,
ties, or relations.’” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 185 S.Ct. 2174,
85 L.Ed 2d 528 (1985) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct.
154, 90 L.Ed. 95 (1945)). Personal jurisdiction over a nonresident defendant can only be
exercised if that defendant has “certain minimum contacts with [the forum state] such that
the maintenance of the suit does not offend ‘traditional notions of fair play and substantial
justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)
(quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). This
two-part test requires evaluating whether the requisite minimum contacts are present and
whether the exercise of jurisdiction is fair. Burger King, 471 U.S. at 476; Davis Kidd
Booksellers, Inc. v. Day-Impex, Ltd., 832 S.W.2d 572, 575 (Tenn. Ct. App. 1992).

       In Tennessee, personal jurisdiction over non-residents is governed by the state’s so-
called “long-arm statutes.” See Tenn. Code Ann. §§ 20-2-214, 20-2-223, and 20-2-225.
Section 20-2-214 reads as follows:

       Jurisdiction of persons unavailable to personal service in state – Classes
       of actions to which applicable. – (a) Persons who are nonresidents of this
       state and residents of this state who are outside the state and cannot be
       personally served with process within this state are subject to the jurisdiction
       of the courts of this state as to any action or claim for relief arising from:

                                              -6-
             (1) The transaction of any business within this state;
             (2) Any tortious act or omission within this state;
             (3) The ownership or possession of any interest in property
             located within this state;
             (4) Entering into any contract of insurance, indemnity or
             guaranty covering any person, property or risk located within
             this state at the time of contracting;
             (5) Entering into a contract for services to be rendered or for
             materials to be furnished in this state;
             (6) Any basis not inconsistent with the constitution of this state
             or of the United States;
             (7) Any action of divorce, annulment or separate maintenance
             where the parties lived in the marital relationship within this
             state, notwithstanding one party’s subsequent departure from
             this state, as to all obligations arising for alimony, custody, child
             support or marital dissolution agreement, if the other party to the
             marital relations continues to reside in this state.

      (b) As used in this section, “person” includes corporations and all other entities
      that would be subject to service of process if present in this state.

      (c) Any such person shall be deemed to have submitted to the jurisdiction of
      this state who acts in the manner described in subsection (a) through an agent
      or personal representative.

Section 20-2-223 provides as follows:

      Personal jurisdiction based on conduct. – (a) A court may exercise personal
      jurisdiction over a person, who acts directly or indirectly, as to a claim for
      relief arising from the person’s:

             (1) Transacting any business in this state;
             (2) Contracting to supply services or things in this state;
             (3) Causing tortious injury by an act or omission in this state;
             (4) Causing tortious injury in this state by an act or omission
             outside this state of the person who regularly does or solicits
             business, or engages in any other persistent course of conduct,
             or derives substantial revenue from goods used or derives
             substantial revenue from goods use or consumed or services
             rendered, in this state;

                                              -7-
             (5) Having an interest in, using or possessing real property in
             this state;
             (6) Contracting to insure any person, property or risk located
             within this state at the time of contracting; or
             (7) Conduct as a director or officer of a domestic corporation or
             the conduct of a domestic corporation while the person held
             office as a director or officer.

      (b) When jurisdiction over a person is based solely upon this section, only a
      claim for relief arising from acts enumerated in this section may be asserted
      against that person.

Section 20-2-225 states:

      Other bases of jurisdiction unaffected – Jurisdiction whenever permitted
      by constitution. – A court of this state may exercise jurisdiction:

             (1) On any other basis authorized by law; or
             (2) On any basis not inconsistent with the constitution of this
             state or of the United States.


      Courts recognize two types of personal jurisdiction: specific and general. Gordon,
300 S.W.3d at 647. In Gordon, the Tennessee Supreme Court explained as follows:

      Specific jurisdiction may be asserted when the plaintiff’s cause of action arises
      from, or is related to, the nonresident defendant’s activities in or contacts with
      the forum state. To invoke specific jurisdiction, a plaintiff must show (1) that
      the nonresident defendant has purposely established significant contact with
      the forum state and (2) that the plaintiff’s cause of action arises out of or is
      related to these activities or contacts. The nonresident defendant’s contacts
      with the forum state must be sufficient to enable a court to conclude that the
      defendant “should reasonably anticipate being haled into court [in the forum
      state].” If the plaintiff can make that showing, the defendant will have the
      burden of showing that the exercise of specific jurisdiction would be unfair.

      In contrast to specific jurisdiction, general jurisdiction may be asserted when
      the plaintiff’s cause of action does not arise out of and is not related to the
      nonresident defendant’s activities in the forum state. The threshold for
      satisfying the requirements for general jurisdiction is substantially higher than

                                             -8-
the requirements for establishing specific jurisdiction. An assertion of general
jurisdiction must be predicated on substantial forum-related activity on the part
of the defendant. The nonresident defendant’s contacts with the forum state
must be sufficiently continuous and systematic to justify asserting jurisdiction
over the defendant based on activities that did not occur in the forum state.

The general jurisdiction inquiry is very different from the specific jurisdiction
inquiry. The United States Court of Appeals for the Fifth Circuit has pointed
out that “[u]nlike the specific jurisdiction analysis, which focuses on the cause
of action, the defendant and the forum, a general jurisdiction inquiry is dispute
blind, the sole focus being on whether there are continuous and systematic
contacts between the defendant and the forum.” In order to warrant the
exercise of general jurisdiction over a nonresident defendant, “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.”

The proper analysis for determining whether a defendant’s contacts are
“continuous and systematic” enough to warrant an assertion of general
jurisdiction requires ascertaining whether “the continuous corporate operations
within a state [are] so substantial and of such a nature as to justify suit against
it on causes of action arising from dealings entirely distinct from those
activities.”

Questions involving whether a nonresident’s contacts with the forum state are
sufficient to warrant the exercise of general jurisdiction are extremely fact
dependent. Determining whether it is appropriate to exercise general
jurisdiction entails a careful, non-mechanical evaluation of the facts with
particular focus on the nonresident defendant’s contacts with the forum state.

Lest the distinction between the basis for specific jurisdiction and general
jurisdiction be overlooked, we emphasize that the assertion of specific
jurisdiction is appropriate only when the plaintiff’s cause of action arises from
or is related to the defendant’s contacts with the forum state. However,
general jurisdiction is appropriate when the plaintiff’s cause of action does not
arise from and is not related to the defendant’s contacts with the forum state.
Thus, when a plaintiff’s cause of action is based on the defendant’s activities
in or contacts with the forum state, specific jurisdiction, as opposed to general
jurisdiction, applies. Therefore, consistent with the due process requirements

                                        -9-
       of the federal and state constitutions, when a nonresident defendant’s contacts
       with a forum state are substantial, systematic, and continuous, and the exercise
       of general jurisdiction satisfies the fairness requirement, the cause of action
       need not arise out of or relate to those contacts.

Id. at 647-49 (internal citations omitted).

       Oorah asserts that it does not conduct business within the State of Tennessee. Oorah
notes that it does not maintain an office in Tennessee, has no employees and has engaged no
independent contractors who work or reside in Tennessee, maintains no bank accounts and
owns no real estate within Tennessee, does not specifically direct any solicitation for
donations to Tennessee, and none of its charitable activities are specifically directed to
Tennessee or its residents.

       Covista argues that Oorah received the benefit of its services under the contract
provided in Tennessee, including provisioning, billing, customer service, customer support,
and account management. Covista notes the actual telephonic service originated from
Tennessee, customer bills were mailed from Tennessee, and the customers sent payments to
a lock box at a Tennessee bank. Covista states it processed the customer payments in
Tennessee and its payments to Oorah under the Reseller Agreement were drawn on a
Tennessee bank and mailed from Tennessee.

        The only basis for jurisdiction argued by Covista is the contract pursuant to which it
brings this action. The contract at issue was negotiated with Covista’s predecessor Capsule,
which itself had no connection to Tennessee. Oorah agreed to the jurisdiction of
Pennsylvania courts as a condition of entering into the deal with Capsule. The contract was
not signed or executed within Tennessee. Capsule was able to assign its interests under the
contract to Covista without Oorah’s consent. We note that the decision of Covista, itself a
foreign corporation, to headquarter its offices in Tennessee, alone cannot subject Oorah to
the state’s jurisdiction. See Calphalon Corp. v. Rowlette, 228 F.3d 718, 722-23 (6th Cir.
2000) (“The defendant was not attempting to ‘exploit any market for its products’ in the State
of Michigan, but rather had contact with the state only because the plaintiff chose to reside
there.”) (quoting Int’l Techs. Consultants v. Euroglas, 107 F.3d 386, 395 (6 th Cir. 1997)).

       In regard to the contract, the marketing of Covista’s telecommunications services to
Oorah’s customers was not specifically directed to residents of Tennessee. To the contrary,
the primary marketing for Oorah’s solicitation efforts is the orthodox Jewish community in
the New York tri-state area. Oorah has not solicited business from Tennessee residents or
provided services to them.



                                              -10-
        We find that Oorah has no “sufficiently continuous and systematic” contacts with
Tennessee. Thus, any finding of personal jurisdiction in this case must be based upon
specific, as opposed to general, jurisdiction. The gravamen of our inquiry is whether Oorah’s
contacts with Tennessee are sufficient to enable our courts to conclude that Oorah “should
reasonably anticipate being haled into court [in Tennessee].” Lindsey v. Trinity Commc’ns,
Inc., 275 S.W.3d at 418.

        To determine whether the circumstances warrant the exercise of specific jurisdiction,
Tennessee courts have adopted three primary factors and two lesser factors to be considered
in determining whether the necessary “minimum contacts” exist. Masada Inv. Corp. v. Allen,
697 S.W.2d 332, 334 (Tenn. 1985). The three primary factors are: (1) the quantity of the
contacts, (2) the nature and quality of the contacts, and (3) the source and connection of the
cause of action with the contacts. Id. at 334. The two lesser factors to be considered are the
interest of the forum state and the convenience of the parties.

        Under Tennessee’s “minimum contacts” test, the cause of action need not arise in the
state. Masada, 697 S.W.2d at 332. All five factors in Masada need not be present in order
for courts to exercise jurisdiction. Walker v. Nationwide Ins. Co., 813 S.W.2d 135, 138
(Tenn. Ct. App. 1990). The defendant’s contacts with the forum state need not be physical,
and the court will primarily examine the quantity of the contacts, their nature and quality, and
the relationship between the contacts and the cause of action. Masada, 697 S.W.2d at 334.

        As part of the evaluation of the reasonableness of exercising jurisdiction, the court
“must consider the burden on the defendant, the interests of the forum state, and the
plaintiff’s interest in obtaining relief. It must also weigh in its determination ‘the interstate
judicial system’s interest in obtaining the most efficient resolution of controversies[,] and the
shared interest of the several States in furthering fundamental substantive social policies.’”
Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed. 2d
92 (1987) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct.
559, 62 L.Ed. 2d 490 (1980)).

       The United States Supreme Court has emphasized that “[t]he unilateral activity of
those who claim some relationship with a nonresident defendant cannot satisfy the
requirement of contact with the forum State.” Burger King, 471 U.S. at 474. To the
contrary, it is essential in each case that there be “some act by which the defendant
purposefully avails itself of the privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws.” Asahi, 480 U.S. at 109.

      Under the circumstances before us, we cannot find that Oorah directed activities at
Tennessee such that it could “reasonably anticipate being haled into court” in Tennessee.

                                              -11-
Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 647 (Tenn. 2009) (citing Lindsey v.
Trinity Commc’ns, Inc., 275 S.W.3d 411, 418 (Tenn. 2009)). Accordingly, we find no error
in the trial court’s decision to decline to exercise personal jurisdiction over Oorah.


                                             B.

       Having concluded that personal jurisdiction over Oorah is lacking, we pretermit
consideration of Covista’s argument regarding the forum selection clauses in the contracts.
Even if the forum selection clauses are unenforceable, because Covista has failed to establish
personal jurisdiction over Oorah by this state, determining this issue would not change the
outcome.


                                    V. CONCLUSION

       The decision of the trial court is affirmed and the cause remanded. Costs of the appeal
are assessed to the appellant, Covista Communications, Inc.


                                                          ___________________________
                                                          JOHN W. McCLARTY, JUDGE




                                             -12-
