                                                                                             ACCEPTED
                                                                                        01-14-01014-CV
                                                                              FIRST COURT OF APPEALS
                                                                                      HOUSTON, TEXAS
                                                                                   3/25/2015 5:29:16 PM
                                                                                    CHRISTOPHER PRINE
                                                                                                 CLERK


                           No. 01-14-01014-CV
                   __________________________________
                                                             FILED IN
                                                      1st COURT OF APPEALS
                  IN THE COURT OF APPEALS FOR THE HOUSTON, TEXAS
                FIRST DISTRICT OF TEXAS AT HOUSTON    3/25/2015 5:29:16 PM
                   __________________________________ CHRISTOPHER
                                                              Clerk
                                                                      A. PRINE


                               LETICIA LOYA,
                                  Appellant,
                                       v.
   IAN TAYLOR, JACOBUS STERKEN, STICHTING TINSEL GROUP,
        VITOL HOLDING II S.A., AND TINSEL GROUP, S.A.,

                                Appellees.
                   __________________________________

                         BRIEF OF APPELLEES
                   __________________________________

        On Appeal from the 190th District Court, Harris County, Texas
                     Trial Court Cause No. 2012-33464
                __________________________________

                                            VINSON & ELKINS L.L.P.
                                            Patrick W. Mizell
                                            Attorney-In-Charge
                                            Texas Bar No. 14233980
                                            Catherine B. Smith
                                            Texas Bar No. 03319970
                                            Deborah C. Milner
                                            Texas Bar No. 24065761
                                            Jaclyn M. Lynch
                                            Texas Bar No. 24083429
                                            1001 Fannin, Suite 2500
                                            Houston, Texas 77002-6760
                                            Telephone: 713.758.2932
                                            pmizell@velaw.com; csmith@velaw.com;
                                            cmilner@velaw.com; jaclynlynch@velaw.com
  Attorneys for Appellees Ian Taylor, Jacobus Sterken, Stichting Tinsel Group,
                  Vitol Holding II S.A., and Tinsel Group, S.A.

ORAL ARGUMENT CONDITIONALLY REQUESTED                               March 25, 2015
                                         TABLE OF CONTENTS
                                                                                                    Page
TABLE OF AUTHORITIES ....................................................................................iv

STATEMENT REGARDING ORAL ARGUMENT ........................................... viii

STATEMENT OF THE CASE.................................................................................ix

ISSUES PRESENTED...............................................................................................x

STATEMENT OF THE FACTS ...............................................................................1

SUMMARY OF THE ARGUMENT ........................................................................3

STANDARD OF REVIEW .......................................................................................5

ARGUMENT .............................................................................................................6

I.       Loya Has Not Pled That Taylor or Sterken Committed an Act in
         Texas, and They Therefore Defeated Jurisdiction by Proof of Non-
         Residence. ........................................................................................................6

         A.       Under Texas law, the plaintiff has the initial burden to plead
                  jurisdictional facts as to each defendant................................................6

         B.       Loya did not plead sufficient jurisdictional facts as to Sterken
                  and Taylor, and Sterken and Taylor proved non-residence in
                  Texas......................................................................................................7

II.      A Texas Court Does Not Have General Jurisdiction Over the Vitol
         Defendants. .....................................................................................................8

         A.       A defendant must be “at home” in the forum for general
                  jurisdiction to exist. ...............................................................................8

         B.       Ian Taylor is not subject to general jurisdiction in Texas. ..................11

                  1.        Taylor’s contacts with Texas as an officer, employee, or
                            agent of a company cannot be attributed to him
                            individually. ..............................................................................11


                                                             i
               2.       The other alleged contacts with Texas do not establish
                        general jurisdiction over Taylor................................................13

       C.      Tinsel Group, S.A. is not subject to the general jurisdiction of
               Texas courts.........................................................................................14

               1.       Having and communicating with Texas-based directors
                        does not subject a company to general jurisdiction in
                        Texas. ........................................................................................14

               2.       Entering into contracts with Texas residents does not
                        establish general jurisdiction.....................................................15

               3.       The relief Tinsel sought from a Houston federal court
                        does not establish general jurisdiction. .....................................17

       D.      Jacobus Sterken is not subject to the general jurisdiction of
               Texas courts.........................................................................................17

               1.       Sterken’s former directorships of two Texas companies
                        do not subject him to general jurisdiction in Texas..................17

               2.       Sterken’s occasional trips to and communications with
                        Texas do not subject him to general jurisdiction in Texas. ......18

               3.       The contracts Sterken signed and communications he
                        sent on behalf of Vitol entities are not Texas contacts
                        attributable to Sterken. ..............................................................18

       E.      Stichting Tinsel is not subject to the general jurisdiction of
               Texas courts.........................................................................................19

       F.      VHIISA is not subject to the general jurisdiction of Texas
               courts. ..................................................................................................20

III.   A Texas Court Does Not Have Specific Jurisdiction Over the Vitol
       Defendants for Loya’s Claims.......................................................................21

       A.      Specific Jurisdiction ............................................................................21

       B.      Taylor’s London deposition is not a Texas contact. ...........................24

                                                          ii
        C.       The shareholder agreements are not substantially connected to
                 the operative facts of the case. ............................................................25

IV.     The Trial Court Did Not Err in Denying Loya’s Motion for
        Continuance. ..................................................................................................26

        A.       A plaintiff seeking a continuance of a special appearance
                 hearing must demonstrate that the discovery is “essential” to the
                 plaintiff’s opposition. ..........................................................................26

        B.       Loya had ample time to conduct discovery.........................................27

        C.       The documents requested are unnecessary or irrelevant to the
                 establishment of jurisdictional facts....................................................29

CONCLUSION........................................................................................................32

CERTIFICATE OF COMPLIANCE.......................................................................35

CERTIFICATE OF SERVICE ................................................................................36




                                                          iii
                                    TABLE OF AUTHORITIES

                                                                                                        Page(s)
Cases

Air Tropiques, Sprl v. N. & W. Ins. Co.,
     No. CIV.A. H-13-1438, 2014 WL 1323046 (S.D. Tex. Mar. 31, 2014).........21

Aronson v. Celebrity Cruises, Inc.,
    Case No. 12–CV–20129, 2014 WL 3408582 (S.D. Fla. May 9, 2014) ..........21

Barriere v. Juluca,
     No. 12-23510-CIV, 2014 WL 652831 (S.D. Fla. Feb. 19, 2014) ...................21

BMC Software Belgium, N.V. v. Marchand,
   83 S.W.3d 789 (Tex. 2002) .............................................................. 5, 6, 25, 28

Bryan v. Gordon,
    384 S.W.3d 908 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ............6, 14

Burger King Corp. v. Rudzewicz,
    471 U.S. 462 (1985)...........................................................................................6

CSR Ltd. v. Link,
    925 S.W.2d 591 (Tex. 1996) .............................................................................7

Curocum Energy LLC v. Young-Sub Shim,
    416 S.W.3d 893 (Tex. App.—Houston [1st Dist.] 2013, no pet.)...................25

Daimler AG v. Bauman,
    134 S. Ct. 746 (2014).......................................................... 9, 13, 15, 16, 21, 30

Denso Corp. v. Hall,
    396 S.W.3d 681 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ................15

Dowdy v. Miller,
   122 S.W.3d 816 (Tex. App.—Amarillo 2003, no pet.) ...................................19

Favour Leading, LLC v. Mulligan,
    No. 05-13-01000-CV, 2014 WL 4090130 (Tex. App.—Dallas Aug. 19,
    2014, no pet.) (mem. op.) ................................................................................17
                                                        iv
GlobeRanger Corp. v. Software AG,
    2013 WL 1499357 (N.D. Tex. Apr. 12, 2013) (mem. op.) .............................21

Goodyear Dunlop Tires Operations, S.A. v. Brown,
    131 S. Ct. 2846 (2011).......................................................................... 9, 13, 18

Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C.,
    815 S.W.2d 223 (Tex. 1991) .............................................................. 6, 7, 8, 22

Helicopteros Nacionales de Columbia v. Hall,
     466 U.S. 408 (1984).....................................................................................8, 22

In re Cathode Ray Tube (CRT) Antitrust Litig.,
      No. C-07-5944-SC, 2014 WL 1091044 (N.D. Cal. Mar. 13, 2014)................10

In re Stern,
      321 S.W.3d 828 (Tex. App.—Houston [1st Dist.] 2010, orig.
      proceeding) ......................................................................................................29

In re Taylor,
      401 S.W.3d 69 (Tex. App.—Houston [14th Dist.] 2009) (orig.
      proceeding) ......................................................................................................13

J. McIntyre Mach., Ltd. v. Nicastro,
     131 S. Ct. 2780 (2011).......................................................................................9

J.A. Riggs Tractor Co. v. Bentley,
     209 S.W.3d 322 (Tex. App.—Texarkana 2006, no pet.) ......................... 16, 26

Johnson v. Fourth Court of Appeals,
    700 S.W.2d 916 (Tex. 1985) .............................................................................6

Kelly v. Gen. Interior Constr., Inc.,
     301 S.W.3d 653 (Tex. 2010) .............................................................................7

Knight v. Knight,
    367 S.W.3d 715 (Tex. 2012) ...........................................................................10

Michiana Easy Livin’ Country, Inc. v. Holten,
    168 S.W.3d 777 (Tex. 2005) .............................................................. 11, 15, 26



                                                            v
Moki Mac River Expeditions v. Drugg,
    221 S.W.3d 569 (Tex. 2007) .............................................................. 22, 23, 30

Moncrief Oil Int’l, Inc. v. OAO Gazprom,
   414 S.W.3d 142 (Tex. 2013) .................................................................... 10, 29

Moore v. Lake States Dairy Ctr., Inc.,
    2014 IL App (1st) 140149-U (Ill. App. Sept. 30, 2014)..................................16

Morris v. Kohls-York,
    164 S.W.3d 686 (Tex. App.—Austin 2005, pet. dism’d)..................................7

Nat’l Indus. Sand Ass’n v. Gibson,
     897 S.W.2d 769 (Tex. 1995) ...........................................................................22

Perna v. Hogan,
    162 S.W.3d 648 (Tex. App.—Houston [14th Dist.] 2005, no pet.) ..............7, 8

PHC-Minden, L.P. v. Kimberly-Clark Corp.,
   235 S.W.3d 163 (Tex. 2007) .......................................................................9, 15

Rapaglia v. Lugo,
    372 S.W.3d 286 (Tex. App.—Dallas 2012, no pet.) .......................................21

Schlobohm v. Schapiro,
     784 S.W.2d 355 (Tex. 1990) ...........................................................................22

Shaffer v. Heitner,
     433 U.S. 186 (1977).........................................................................................18

Shell Compania Argentina De Petroleo, S.A. v. Reef Exploration, Inc.,
     84 S.W.3d 830 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) ..............22

Siskind v. Villa Found. for Educ., Inc.,
     642 S.W.2d 434 (Tex. 1982) .............................................................................8

Stull v. LaPlant,
      411 S.W.3d 129 (Tex. App.—Dallas 2013, no pet.) ................................ 12, 19

Wellness Wireless, Inc. v. Vita,
    No. 01-12-00500-CV, 2013 WL 978270 (Tex. App.—Houston [1st
    Dist.] Mar. 12, 2013, no pet.) ..........................................................................12

                                                        vi
Constitutions, Statutes, and Rules

28 U.S.C. § 1782......................................................................................................17

Ill. R. Sup. Ct. 23(e) .................................................................................................16

Texas Rules of Civil Procedure,
    Rule 120a(3) ....................................................................................... 26, 28, 30




                                                           vii
              STATEMENT REGARDING ORAL ARGUMENT

      Appellees do not believe that oral argument would aid the Court’s decisional

process. This case does not involve complex facts or issues of first impression.

The facts are clear from the record, and to the extent there is any ambiguity, the

issues can be decided as a matter of law even assuming Appellant’s jurisdictional

allegations are true. However, in the event that this Court grants Appellant’s

request for oral argument, Appellees request that they also be given an equal

opportunity to present oral argument to the Court.




                                        viii
                         STATEMENT OF THE CASE

      Nature of the case: This case arises out of the divorce of Appellant Leticia

Loya (“Loya”) and Miguel Loya. It has two parts: legal malpractice claims

against Loya’s attorneys in the divorce, and fraud and breach of fiduciary duty

claims against Miguel Loya and eight defendants associated with Mr. Loya’s

employer, Vitol Inc. (including the five Appellees). SCR 3-25.

      Course of proceedings: Loya filed this case in June 2012 against her former

attorneys. CR 7. In June 2014, she filed an amended petition to add the claims

against the Vitol-related defendants.    CR 16.    The Appellees are all foreign

individuals and entities not subject to personal jurisdiction in Texas; accordingly,

each Appellee specially appeared. CR 51, 64, 77, 90, 103. Appellant responded to

the special appearances and also filed motions for continuance of the special

appearance hearings. CR 239, 296, 356, 424, 652. The trial court heard the

Appellees’ special appearances and Appellant’s motions for continuance on

November 10, 2014. RR 5.

      Trial court disposition: The trial court denied Appellant’s motions for

continuance and granted Appellees’ special appearances. CR 1268-72, 1280.




                                         ix
                             ISSUES PRESENTED

1.    Did the trial court err in granting Appellees’ special appearances, where

Appellees are all foreign entities or individuals and Appellant did not plead or

prove that any Appellee made a misrepresentation or omission while in Texas or

even in a communication to a person in Texas?

      2.    Did the trial court err in denying Appellant’s motions for continuance,

where Appellant failed to request any jurisdictional discovery for several months

after Appellees filed special appearances, Appellant deposed each Appellee on

jurisdictional issues, and Appellant failed to demonstrate that the documents

requested were necessary to her opposition to the special appearances?




                                        x
                           STATEMENT OF THE FACTS

       In 2008, Appellant Leticia Loya (“Loya”) filed for divorce from her

husband, Miguel Loya. SCR 7. Loya contends that Miguel Loya was employed

by Vitol Inc., and that the Loyas were shareholders in appellee Vitol Holding II,

S.A. (“VHIISA”). SCR 8. In 2006, the Loyas exchanged their shares in VHIISA

for shares in Appellee Tinsel Group, S.A.; Loya alleges that the value of the Tinsel

shares reflects the performance of “a given underlying combination of shares in

VHIISA.” SCR 8-9. The value of these shares was at issue in the divorce, which

was made final in 2010. SCR 11. In this lawsuit, which also includes claims

against her lawyers in the divorce proceeding, Loya contends that Appellees

VHIISA, Tinsel, Stichting Tinsel, Jacobus Sterken, and Ian Taylor (collectively,

the “Vitol Defendants”) had information about a future investment that Vitol Inc.1

intended to make in Africa but did not disclose this information to her, even though

it allegedly would have had a material impact on the value of the Tinsel shares.

SCR 9-11.

       Loya admits that none of the Vitol Defendants are citizens or residents of

Texas. SCR 4-6. With one exception, it is undisputed that none of the Vitol

Defendants participated in discovery in the Loyas’ divorce or had any

communications with Loya or her attorneys or expert witnesses at any time, but

1
       Loya’s amended petition states that “Vitol” made this investment, and it defines “Vitol”
as “Vitol Inc.” SCR 6. Vitol Inc. was a defendant in the case but did not specially appear.
                                              1
Loya nonetheless alleges that they had an affirmative duty to disclose the future

plans of one Vitol-related entity to her during the divorce proceedings because of

her community property interest in the Tinsel shares. CR 132, 158, 172, 209, 234.

      Appellee Ian Taylor (“Taylor”) resides in London, England; he is not a

citizen or resident of Texas. CR 152, 158. He is employed by a British company

called Vitol Services, Limited. CR 1007. The Vitol group of companies (referred

to as the “Vitol Group,” although this is not a business entity) includes a company

headquartered in Houston, Vitol Inc., but Taylor is not an employee, officer, or

director of this entity. CR 152, 158. The only connection between Taylor and

Loya’s claims is that Taylor was deposed in London, not in Texas, as part of the

Loyas’ divorce proceedings. CR 158.

      Appellee Stichting Tinsel is a Dutch foundation with its principal place of

business in Rotterdam, the Netherlands; it is not a resident or citizen of Texas. CR

171. Stichting Tinsel has no connection to the Loyas’ divorce proceedings. CR

172. Appellee Tinsel Group, S.A. (“Tinsel”) is a Luxembourg company with its

principal place of business in Luxembourg City; it is not a resident or citizen of

Texas. CR 131. Tinsel had no involvement in the Loyas’ divorce proceedings.

CR 132. Stichting Tinsel and Tinsel did enter into shareholders’ agreements with

the Loyas and other Texas residents. There is no allegation that this shareholders’

agreement was performed, or intended to be performed, in whole or in part in

                                         2
Texas; rather, it governs the relationship between the shareholders—wherever they

may be located—and these Netherlands and Luxembourg entities. CR134-44.

Further, the shareholders’ agreement specifies that it is governed by the laws of the

Netherlands and that the courts of Rotterdam, the Netherlands, have exclusive

jurisdiction over any disputes arising under the agreement. CR 140.

      Appellee VHIISA is a Luxembourg company with its principal place of

business in Luxembourg City, Luxembourg; it is not a resident or citizen of Texas.

CR 209. It was not involved in the Loyas’ divorce proceedings. CR 209. Like

Tinsel, VHIISA entered into a shareholders’ agreement with each of its

shareholders, including Texas shareholders, to govern the relationship between the

shareholders and VHIISA.       CR 212-223.     This shareholders’ agreement also

specifies that it is governed by the laws of the Netherlands and that the courts of

Rotterdam, the Netherlands, have exclusive jurisdiction over any disputes arising

under the agreement. CR 219.

      Appellee Jacobus Sterken (“Sterken”) is a citizen of the Netherlands who

resides in Switzerland; he is not a citizen or resident of Texas. CR 234. He did not

participate in the Loyas’ divorce proceedings. CR 234.

                      SUMMARY OF THE ARGUMENT

      Loya failed to plead sufficient jurisdictional facts against Sterken and

Taylor, and Sterken and Taylor therefore met their burden to negate all


                                         3
jurisdictional facts by proving that neither of them is a resident of Texas. The trial

court’s rulings as to Sterken and Taylor can be upheld on that basis alone.

      To the extent the trial court, or this Court, considers the unpled facts alleged

by Loya in her opposition to the special appearances, Loya has failed to show that

these facts support general or specific jurisdiction as to any Appellee. None of the

Appellees is at home in Texas; at most, they have occasional or sporadic contacts

with Texas, such as occasional telephone calls from their foreign residences with a

person in Texas. These limited contacts do not establish general jurisdiction.

      Loya has not explained to the trial court or to this Court which alleged

contacts with Texas support specific jurisdiction, but the only alleged contacts with

a remote tie to this case are not substantially connected to the operative facts of this

case, which is the relevant inquiry. She has alleged that Appellee, Ian Taylor, gave

a deposition in the underlying divorce case, but she has not alleged any

misrepresentations or omissions that occurred in that deposition, and, moreover,

that deposition took place in London pursuant to an order from a London court.

She has also alleged that Appellees signed contracts with Texas residents, but these

contracts, while generally related to the subject matter of this case, are not

substantially connected to the operative facts. This is not a breach of contract case,

and the specific terms of the contracts are not at issue. In addition, the contracts all

contain forum selection and choice of law clauses mandating jurisdiction in the

                                           4
courts of Rotterdam, the Netherlands, and application of Dutch law, indicating that

the parties specifically intended to avoid availing themselves of the protections of

Texas law. The trial court did not err in granting Appellees’ special appearances.

      Further, the trial court did not err in denying Appellant’s motions for

continuance.    Appellant filed these motions a few days before the special

appearance hearing, which was postponed for over a month at Appellant’s request.

Appellant waited about three months after Appellees filed their original special

appearances to conduct any discovery, and Appellees made themselves available

on short notice for depositions. Appellant argues that the trial court should have

granted a continuance to allow Appellant to obtain responses to requests for

production, but Appellant failed to explain to the trial court or to this Court how

those requests are relevant to the special appearances and why the depositions were

insufficient. Appellant did not meet her burden on the motions for continuance,

and the trial court properly denied those motions.

                           STANDARD OF REVIEW

      Whether a trial court has personal jurisdiction over a nonresident defendant

is a question of law that is reviewed de novo. BMC Software Belgium, N.V. v.

Marchand, 83 S.W.3d 789, 794 (Tex. 2002). The trial court often must resolve

questions of fact before deciding the jurisdictional question. Id. Where the trial

court fails to issue findings of fact and conclusions of law, all facts necessary to


                                         5
support the judgment and supported by the evidence are implied. See Bryan v.

Gordon, 384 S.W.3d 908, 913 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

      A trial court’s denial of a motion for continuance in a special appearance

proceeding is reviewed under an abuse of discretion standard. BMC Software, 83

S.W.3d at 800. A trial court abuses its discretion when it acts in a manner so

“arbitrary and unreasonable as to amount to a clear and prejudicial error of law.”

Id. (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.

1985)).

                                 ARGUMENT

I.    Loya Has Not Pled That Taylor or Sterken Committed an Act in Texas,
      and They Therefore Defeated Jurisdiction by Proof of Non-Residence.

      A.    Under Texas law, the plaintiff has the initial burden to plead
            jurisdictional facts as to each defendant.
      Texas courts do not have jurisdiction over a nonresident defendant unless the

nonresident defendant has purposefully established “minimum contacts” with

Texas and the exercise of jurisdiction comports with “traditional notions of fair

play and substantial justice.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475–

76 (1985); Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815

S.W.2d 223, 226 (Tex. 1991). Under the minimum contacts analysis, Texas courts

must determine whether the nonresident defendant has purposefully availed

himself of conducting activities within the State of Texas. CSR Ltd. v. Link, 925


                                        6
S.W.2d 591, 596 (Tex. 1996); Guardian Royal, 815 S.W.2d at 226. Minimum

contacts are not established unless the court finds it has either specific or general

jurisdiction over the defendant. Guardian Royal, 815 S.W.2d at 227.

      The plaintiff has the initial burden of pleading sufficient allegations to bring

a nonresident defendant within the provisions of the Texas long-arm statute. “If

the plaintiff does not plead jurisdictional allegations, i.e., that the defendant has

committed any act in Texas, the defendant can satisfy [his] burden of negating all

bases of personal jurisdiction by presenting evidence that [he] is a nonresident at

the special appearance hearing.” Perna v. Hogan, 162 S.W.3d 648, 652–53 (Tex.

App.—Houston [14th Dist.] 2005, no pet.); accord Kelly v. Gen. Interior Constr.,

Inc., 301 S.W.3d 653, 658–59 (Tex. 2010). The plaintiff must specify, and a court

must examine, each individual defendant’s contacts with the forum state; the

defendants’ contacts cannot be aggregated. See Morris v. Kohls-York, 164 S.W.3d

686, 693 (Tex. App.—Austin 2005, pet. dism’d) (stating that, when a case involves

multiple defendants, “each defendant’s actions and contacts with the forum [must

be tested] separately.”).

      B.     Loya did not plead sufficient jurisdictional facts as to Sterken and
             Taylor, and Sterken and Taylor proved non-residence in Texas.
        As to Sterken and Taylor, Loya only pled that they each “actively

participated in Texas businesses,” without pleading that this “participation”

occurred while Sterken and Taylor were in Texas. SCR 5. Sterken and Taylor

                                          7
each submitted declarations stating that they are not citizens or residents of Texas,

a fact that is undisputed. CR 152, 158, 234.

       Because Loya failed to plead that Sterken or Taylor committed an act in

Texas, Sterken and Taylor defeated Loya’s allegation of jurisdiction by submitting

proof that they are not citizens or residents of Texas, and the trial court’s orders as

to Sterken and Taylor can be upheld on that basis alone. Perna, 162 S.W.3d at

652–53.

II.    A Texas Court Does Not Have General Jurisdiction Over the Vitol
       Defendants. 2

       A.     A defendant must be “at home” in the forum for general
              jurisdiction to exist.
       General jurisdiction cannot be exercised unless the nonresident defendant

has continuous and systematic contacts with the State of Texas. Guardian Royal,

815 S.W.2d at 230; Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 438

(Tex. 1982); see also Helicopteros, 466 U.S. 408, 416 (1984). Indeed, “those who

live or operate primarily outside a state have a due process right not to be subjected

to judgment in its courts as a general matter.” J. McIntyre Mach., Ltd. v. Nicastro,


2
        Loya has combined her arguments as to each Vitol Defendant on general and specific
jurisdiction. Because the standards are different, the Vitol Defendants have separately addressed
general and specific jurisdiction. Loya has not made clear which facts she believes support
general jurisdiction and which support specific jurisdiction. The Vitol Defendants have assumed
that, unless Loya has alleged or argued at least some connection to this case, the facts alleged
relate to her argument on general jurisdiction. None of the facts discussed in the Vitol
Defendants’ argument on general jurisdiction bear any relationship whatsoever to the operative
facts of Loya’s claims, except as separately discussed in the section on specific jurisdiction.
                                               8
131 S. Ct. 2780, 2787 (2011). Thus, general jurisdiction should only be asserted

over defendants whose contacts with a forum state “render them essentially at

home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 131

S. Ct. 2846, 2851 (2011). As the United States Supreme Court recently explained,

“[f]or an individual, the paradigm forum for the exercise of general jurisdiction is

the individual’s domicile.” Goodyear, 131 S. Ct. at 2853–54; see also Daimler AG

v. Bauman, 134 S. Ct. 746, 760 (2014) (“Goodyear made clear that only a limited

set of affiliations with a forum will render a defendant amenable to all-purpose

jurisdiction there.”).

       Even under the pre-Daimler standard, the contacts alleged by Loya would

not establish general jurisdiction. In PHC-Minden, L.P. v. Kimberly-Clark Corp.,

235 S.W.3d 163, 168-69 (Tex. 2007) (internal citations omitted), the Texas

Supreme Court explained that courts can evaluate general jurisdiction by

“construct[ing] a hypothetical claim without any forum connection ‘to insure that

any related forum activities of the defendant are not improperly infiltrating the

dispute-blind inquiry.’”3      In this case, for example, the Court might consider

whether it would exercise jurisdiction over each of the Vitol Defendants if each of

them were defending a case in Texas brought by a New York resident regarding a


3
       In that case, the Court held that Texas courts did not have general jurisdiction over a
Louisiana corporation, despite that corporation’s trips to Texas, payments to Texas vendors, and
contracts with Texas companies. PHC-Minden, 235 S.W.3d at 171.
                                               9
breach of a contract unconnected with Texas. Would Texas have jurisdiction over

Stichting Tinsel, a Dutch company defending a suit by a New York resident, in that

case? Or jurisdiction over Ian Taylor, a UK citizen who lives in London? If the

answer is no, then Texas does not have general jurisdiction over the Vitol

Defendants in this case either.

      Loya cites In re Cathode Ray Tube (CRT) Antitrust Litig., No. C-07-5944-

SC, 2014 WL 1091044, at *4 (N.D. Cal. Mar. 13, 2014) for the proposition that,

where “the target and end result of the activity was in the forum state,” the

defendant is subject to general jurisdiction. But evaluation of contacts specific to

the case at hand is a specific jurisdiction analysis, and in fact, that case is about

specific jurisdiction. The court there stated, “Plaintiffs do not argue that the Court

has general jurisdiction over Defendant.” Id. To the extent Loya is arguing that

Texas courts have jurisdiction over the Vitol Defendants because of some activities

elsewhere that were allegedly directed at a Texas resident, the Texas Supreme

Court has repeatedly rejected the idea that, because the plaintiff feels the injury in

Texas, jurisdiction exists. See Moncrief Oil Int’l, Inc. v. OAO Gazprom, 414

S.W.3d 142, 157 (Tex. 2013) (refusing to find jurisdiction even though defendants

knew plaintiff would feel the effects in Texas); Knight v. Knight, 367 S.W.3d 715,

727 (Tex. 2012) (refusing to find specific jurisdiction where plaintiff, the alleged

victim of an intentional tort specifically directed at her, was in Texas, but the

                                         10
alleged wrongful acts all occurred outside of Texas); Michiana Easy Livin’

Country, Inc. v. Holten, 168 S.W.3d 777, 778-92 (Tex. 2005) (explicitly rejecting

the “directed a tort” test).

       B.       Ian Taylor is not subject to general jurisdiction in Texas.
       In support of her argument regarding Ian Taylor, Loya first recites facts

regarding the “Vitol Group,” which is not actually a business entity and which is

not a party to this case. App’t Br. 3-4. Loya then points out that Taylor has been

to Texas 11 times in ten years (on unspecified business); that he receives

communications from the Houston office of the “Vitol Group” about unspecified

matters; that he signed certain agreements with and sent letters to Mr. Loya—not

Appellant Ms. Loya—on behalf of various Vitol entities; that he was the manager

of a Texas limited liability company and carried out business for that company;

and that he discussed investments in Houston real estate with Mr. Loya in 2008.

App’t Br. 4-7. Finally, Loya cites to a 2009 Fourteenth Court of Appeals opinion

allegedly affirming a trial court opinion finding that Taylor was subject to

jurisdiction in Harris County. App’t Br. 7. None of these facts establish general

jurisdiction.

                1.    Taylor’s contacts with Texas as an officer, employee, or agent
                      of a company cannot be attributed to him individually.

       Under the fiduciary-shield doctrine, a court cannot exercise jurisdiction over

a nonresident corporate officer if his only contacts with Texas are those the officer

                                           11
encounters by virtue of his role as an officer on behalf of the corporation. See

Wellness Wireless, Inc. v. Vita, No. 01-12-00500-CV, 2013 WL 978270, at *9

(Tex. App.—Houston [1st Dist.] Mar. 12, 2013, no pet.) (unpublished) (“Texas

courts have adopted the fiduciary-shield doctrine to protect a corporate officer or

employee from the trial court’s exercise of general personal jurisdiction when all

of the individual’s contacts with Texas were on behalf of his employer.”) (internal

quotations omitted). When a corporate officer, employee, or agent signs a contract

with a Texas resident on behalf of the corporation, that individual officer,

employee, or agent has not, in his or her individual capacity, created a

jurisdictional contact with Texas.4 Stull v. LaPlant, 411 S.W.3d 129, 137-38 (Tex.

App.—Dallas 2013, no pet.).

       Other contacts not attributable to Taylor individually include:                   (1) the

alleged importance of the Houston office to the “Vitol Group,” Taylor’s alleged

employer; (2) communications from Houston that Taylor receives in his capacity

as an employee of the “Vitol Group”; and (3) contracts he signed on behalf of

VHIISA and other entities. Likewise, Taylor’s activities as manager of a Texas

LLC, on behalf of that company, are not attributable to him individually.

Jurisdiction over Taylor must be determined based on Taylor’s own contacts, not

contacts on behalf of a company that employs him or for which he acts as an agent.

4
        There is no allegation or evidence that any of these alleged contacts with Texas on behalf
of an entity involved tortious acts by Taylor or were connected with this case in any way.
                                               12
            2.     The other alleged contacts with Texas do not establish general
                   jurisdiction over Taylor.

      Loya simply misstates the issue and the holding in the 2009 appeal. In that

case, the Fourteenth Court of Appeals considered whether Loya’s deposition would

constitute an impermissible apex deposition. CR 841; In re Taylor, 401 S.W.3d 69

(Tex. App.—Houston [14th Dist.] 2009) (orig. proceeding). The deposition was

ordered by a London court through letters of request from the Texas court, which

were ruled on by High Court of Justice, Queen’s Bench Division, in London. CR

841, 847. Loya’s divorce attorneys were well aware that a Texas court did not

have jurisdiction over Taylor and that a request for his deposition would have to

proceed using letters of request issued to the London court, and, accordingly, the

Fourteenth Court of Appeals did not consider whether a Texas court had

jurisdiction over Taylor. Likewise, Loya mischaracterizes the trial court’s May 19,

2009 order. That court did not deny Taylor’s special appearance; rather, Taylor

specially appeared to file a motion to quash, and the court denied the motion to

quash. CR 991-94. The order did not address the merits of the special appearance.

Id.

      That leaves the Court with Taylor’s 11 visits to Texas in ten years. Under

the standard articulated in Daimler and Goodyear, approximately one visit per year

to the forum does not make an individual “at home” there. Daimler, 134 S. Ct. at



                                        13
760; Goodyear, 131 S. Ct. at 2853–54. The trial court properly granted Taylor’s

special appearance as to general jurisdiction.

        C.     Tinsel Group, S.A. is not subject to the general jurisdiction of
               Texas courts.
        Loya cites the following facts in support of her claim of general jurisdiction

over Tinsel: (1) Tinsel has two Texas-based directors, (2) Tinsel occasionally

mails documents to those Texas directors, (3) the Texas directors participate in

calls and emails with the other Tinsel directors, (4) Tinsel entered into four related

contracts with Texas residents, and (5) Tinsel sought remedies from a Houston

federal district court in connection with a foreign discovery proceeding. App’t Br.

8-9.5

               1.     Having and communicating with Texas-based directors does
                      not subject a company to general jurisdiction in Texas.

        Loya cites no case law supporting her theory that a foreign corporation

purposefully avails itself of the benefits of Texas law by electing Texas residents to

its board of directors. At most, this demonstrates that the Texas residents have

chosen to subject themselves to foreign law as it relates to their obligations as

5
        Loya’s Second Amended Petition includes an allegation that Tinsel conducted meetings
in Texas. SCR 4. She does not reference these alleged meetings in her briefing, and there is no
proof that these meetings occurred; there is also no allegation that these meetings related to this
lawsuit in any way. Karl Pardaens, a Tinsel board member, testified that telephonic board
meetings are organized from Luxembourg, not Texas; that no board meetings have ever taken
place in the United States; and that the important board meetings take place physically in
Luxembourg. CR 1132-84, 1188, 1222-24. To the extent a factual finding on this point is
necessary to support the trial court’s judgment, a finding that no meetings occurred in Texas
must be implied. See Bryan, 384 S.W.3d at 913.
                                               14
directors. Likewise, communications with these Texas residents, from the foreign

company, discussing the business of the foreign company as governed by foreign

law, does not evidence any purposeful availment of the benefits of Texas law.

Moreover, even if these acts counted as jurisdictional contacts with Texas, they are

neither pervasive nor continuous enough to establish general jurisdiction over

Tinsel under the standards articulated in Daimler and PHC-Minden. Daimler, 134

S. Ct. at 760; PHC-Minden, 235 S.W.3d at 168-69.

            2.     Entering into contracts with Texas residents does not establish
                   general jurisdiction.

      Loya contends that, if a company enters into multiple contracts with Texas

residents, that is sufficient to establish general jurisdiction over that company.

That is contrary to Texas law. In Denso Corp. v. Hall, 396 S.W.3d 681, 693-95

(Tex. App.—Houston [14th Dist.] 2013, no pet.), the Fourteenth Court of Appeals

found that no general jurisdiction existed over a foreign defendant whose

employees had been to Texas 155 times in ten years for a variety of meetings,

including meetings to negotiate multiple contracts with Texas residents. Further,

as explained above, these contracts contain forum selection clauses mandating

exclusive jurisdiction in the courts of Rotterdam, the Netherlands, and choice-of-

law provisions mandating application of Dutch law. The Texas Supreme Court has

held that “insertion of a clause designating a foreign forum suggests that no local

availment was intended” by a contract. Michiana, 168 S.W.3d at 792; see also J.A.

                                        15
Riggs Tractor Co. v. Bentley, 209 S.W.3d 322, 332 (Tex. App.—Texarkana 2006,

no pet.) (“[W]e note that the forum selection clause in the credit agreement

suggests that Riggs anticipated suit in Arkansas and further suggests that Riggs

was not availing itself of the benefit of Texas’ laws.”).

      The Moore v. Lake States Dairy Ctr., Inc., 2014 IL App (1st) 140149-U (Ill.

App. Sept. 30, 2014), case cited by Loya on this issue is not even binding

precedent in Illinois. According to Illinois Supreme Court Rule 23, it can only be

cited for the purposes of double jeopardy, res judicata, collateral estoppel, or law

of the case. Ill. R. Sup. Ct. 23(e). Moreover, the contracts at issue here are vastly

different from the contracts in Moore. They are not contracts for the sale of goods

or services in Texas or with Texas residents; they are shareholder agreements

between all shareholders—whether residents of Texas or not—and foreign

companies, all containing provisions specifying application of Dutch law and

mandatory venue in the Netherlands. If having Texas shareholders established

general jurisdiction, that would negate the Supreme Court’s admonition in Daimler

that general jurisdiction tests should not lead to defendants being subject to general

jurisdiction in many states. Daimler, 134 S. Ct. at 761-62. Under such a test,

public companies in particular would be subject to general jurisdiction in most

states, and they would not be able to structure their activities to control where they

would be liable to suit. Id.

                                          16
            3.     The relief Tinsel sought from a Houston federal court does not
                   establish general jurisdiction.

      The relief Tinsel sought from the Houston federal court was in a proceeding

specifically designed for foreign entities, like Tinsel, to obtain discovery from

United States residents for use in a foreign proceeding. CR 1216. This procedure

is found in federal law, 28 U.S.C. § 1782. CR 1216. Deriving a benefit from

federal law—not Texas law—does not constitute purposeful availment of the

Texas forum. Favour Leading, LLC v. Mulligan, No. 05-13-01000-CV, 2014 WL

4090130, at *8 (Tex. App.—Dallas Aug. 19, 2014, no pet.) (mem. op.).

      D.    Jacobus Sterken is not subject to the general jurisdiction of Texas
            courts.
      Loya cites the following facts with respect to Sterken: (1) he was formerly a

director of two Texas entities; (2) he has traveled to Houston 12-13 times since

1999 and receives about a dozen phone calls or emails a year from the Vitol, Inc.

Houston office; (3) on behalf of Stichting Tinsel and Tinsel, he signed two

contracts with Miguel Loya, a Texas resident; and (4) he sent Vitol-related

business communications to Miguel Loya in Texas. App’t Br. 10-11.

            1.     Sterken’s former directorships of two Texas companies do not
                   subject him to general jurisdiction in Texas.

      Here, apparently in support of her claim of general jurisdiction, Loya alleges

that Sterken was formerly a director of two Texas companies.           There is no

allegation that Sterken committed any act related to this lawsuit in his capacity as

                                        17
director of either company.      The United States Supreme Court has held that

accepting a director position with a company incorporated in a particular state does

not, by itself, form a basis for personal jurisdiction over that director in the state of

incorporation. Shaffer v. Heitner, 433 U.S. 186, 214-216 (1977).

             2.     Sterken’s occasional trips to and communications with Texas
                    do not subject him to general jurisdiction in Texas.

      Even assuming that Sterken’s approximately annual trips to Texas and dozen

or so emails and phone calls per year with Texas residents were done in his

individual capacity, rather than in his capacity as an employee of a Vitol or other

entity, these contacts do not establish general jurisdiction. Sterken is a Dutch

citizen who resides in Switzerland, so the “paradigm forum” in which he is “at

home” is Switzerland, not Texas. Goodyear, 131 S. Ct. at 2853–54. If occasional

visits and phone calls rendered him “at home” in a state, he might be “at home” in

many states, contrary to the holding in Goodyear. These contacts are neither

continuous nor systematic, and they do not establish general jurisdiction.

             3.     The contracts Sterken signed and communications he sent on
                    behalf of Vitol entities are not Texas contacts attributable to
                    Sterken.

      Loya alleges that Sterken signed certain contracts as a representative of

Stichting Tinsel and Tinsel, not in his individual capacity, and sent letters on behalf

of Tinsel and VHIISA. App’t Br. 10; CR 264-273; CR 276-279. Because Sterken

undertook these actions as an employee or agent of these entities, and not on his

                                           18
own behalf, these contacts are not attributable to him individually. See Stull, 411

S.W.3d at 137-38.

       E.      Stichting Tinsel is not subject to the general jurisdiction of Texas
               courts.
       Loya cites two facts in support of her argument for jurisdiction over

Stichting Tinsel: (1) a Stichting Tinsel director traveled to Texas a number of

times on business, not necessarily for Stichting Tinsel, and (2) Stichting Tinsel has

entered into contracts with Texas residents.6 App’t Br. 12-13.

       First, there is no allegation or proof that the trips by the Stichting Tinsel

director related to any business for Stichting Tinsel, so these trips cannot possibly

create a jurisdictional contact between Stichting Tinsel and Texas. Second, as

discussed above with respect to Tinsel, entering into contracts with Texas residents

does not establish general jurisdiction. To the extent that Loya claims Texas has

jurisdiction over Stichting Tinsel because Stichting Tinsel holds shares of Tinsel in

trust for the individual shareholders, including Texas residents, the presence of a

trust beneficiary in Texas does not establish jurisdiction. See Dowdy v. Miller, 122

S.W.3d 816, 823 (Tex. App.—Amarillo 2003, no pet.).

6
        Loya’s Second Amended Petition includes an allegation that Stichting Tinsel conducted
meetings in Texas. SCR 6. She does not reference these alleged meetings in her briefing, and
there is no proof that these meetings occurred; there is also no allegation that these meetings
related to this lawsuit in any way. Sam Lambroza, a Stichting Tinsel board member, testified
that Stichting Tinsel has never had any Texas-based directors, and there is no evidence of
Stichting Tinsel’s attendance at any other type of meeting in Texas. CR 1071-72. Rather, the
evidence is that Stichting Tinsel’s business has taken place entirely in the Netherlands, and it has
never engaged in business in Texas. CR 171.
                                                19
       F.     VHIISA is not subject to the general jurisdiction of Texas courts.
       With respect to VHIISA, Loya again cites (1) the same contracts with

Miguel Loya, a Texas resident, along with annual communications to Texas

shareholders; (2) a trip by a VHIISA director to Texas for Vitol-related business,

not necessarily on behalf of VHIISA specifically; (3) that Miguel Loya, a Texas

resident, was formerly a director of VHIISA; and (4) that VHIISA allegedly has a

subsidiary in Houston (presumably she refers to Vitol Inc.).7 App’t Br. 14-15, 36.

As explained above, contracts and occasional communications with Texas

residents and the presence of a Texas resident on the board of directors are not

facts that create general jurisdiction. Likewise, one trip to Texas by a VHIISA

director, for business that may or may not have been on behalf of VHIISA, does

not demonstrate continuous and systematic contacts between VHIISA and Texas.

       Neither does an office or subsidiary in Texas. Loya has neither pled nor

proved that Vitol Inc. (which is a Houston-based company) is a subsidiary or agent

of VHIISA (or any of the other Vitol Defendants). But even if VHIISA had an

office or a subsidiary in Texas, that would not establish general jurisdiction. Judge

Rosenthal recently rejected the arguments that an office in Texas or a co-defendant

7
        Loya’s Second Amended Petition includes an allegation that VHIISA conducted
meetings in Texas. SCR 4. She does not reference these alleged meetings in her briefing, and
there is no proof that these meetings occurred; there is also no allegation that these meetings
related to this lawsuit in any way. There is no evidence that any meetings occurred in Texas.
Jonathan Marsh, a VHIISA board member, testified that it is a passive holding company that
does not do active business. CR 1150. The undisputed evidence is that VHIISA has no
employees or offices in Texas and had never done any business in Texas. CR 209.
                                              20
subsidiary in Texas could establish general jurisdiction over a foreign defendant.8

She found that, based on the standard articulated in Daimler, a defendant was not

subject to personal jurisdiction, despite having an office in Texas and a subsidiary

in Texas who was a defendant in the same lawsuit. Air Tropiques, Sprl v. N. & W.

Ins. Co., No. CIV.A. H-13-1438, 2014 WL 1323046, at *11 (S.D. Tex. Mar. 31,

2014). Texas courts have also long rejected the idea that personal jurisdiction over

a co-defendant establishes, or has any impact on, the issue of personal jurisdiction

over another defendant. See Rapaglia v. Lugo, 372 S.W.3d 286, 290 (Tex. App.—

Dallas 2012, no pet.); GlobeRanger Corp. v. Software AG, 2013 WL 1499357, at

*3 (N.D. Tex. Apr. 12, 2013) (mem. op.) (“[E]ven with allegations of a conspiracy,

the Court must evaluate each of the Defendants’ contacts separately to determine

whether personal jurisdiction exists.”).

III.   A Texas Court Does Not Have Specific Jurisdiction Over the Vitol
       Defendants for Loya’s Claims.

       A.      Specific Jurisdiction
       Specific jurisdiction can be exercised only if a nonresident defendant’s

activities were “purposefully directed” to Texas and the litigation resulted from

alleged injuries that “arise out of” or “relate to” those activities. Nat’l Indus. Sand

8
        In Barriere v. Juluca, No. 12-23510-CIV, 2014 WL 652831, at *5 (S.D. Fla. Feb. 19,
2014), the case cited by Loya, the court accepted all the plaintiff’s jurisdictional allegations as
true because the defendant did not submit any affidavits or other contrary evidence. Other courts
have limited Barriere to its unusual facts and generally disapproved of its holding. See Aronson
v. Celebrity Cruises, Inc., Case No. 12–CV–20129, 2014 WL 3408582, at *7 n.5 (S.D. Fla. May
9, 2014).
                                               21
Ass’n v. Gibson, 897 S.W.2d 769, 774 (Tex. 1995); Schlobohm v. Schapiro, 784

S.W.2d 355, 358 (Tex. 1990); see Helicopertos, 466 U.S. at 414; Guardian Royal,

815 S.W.2d at 227. The Texas Supreme Court recently explained that “for a

nonresident 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 River Expeditions v. Drugg, 221

S.W.3d 569, 585 (Tex. 2007) (emphasis added); Shell Compania Argentina De

Petroleo, S.A. v. Reef Exploration, Inc., 84 S.W.3d 830, 837 (Tex. App.—Houston

[1st Dist.] 2002, pet. denied) (“Specific jurisdiction is established if the

defendant’s alleged liability arises from, or is related to, an activity conducted

within the forum.”). The Moki Mac court emphasized that “purposeful availment

alone will not support an exercise of specific jurisdiction” and that for specific

jurisdiction, “purposeful availment has no jurisdictional relevance unless the

defendant’s liability arises from or relates to the forum contacts.” 221 S.W.3d. at

579 (emphasis added).

      The Vitol Defendants are not subject to specific jurisdiction in this case. A

specific jurisdiction contact must demonstrate that the defendant both

“purposefully availed” itself of the benefits and protections of Texas law, and that

it did so in a way “substantially connected to the operative facts” of this case.




                                        22
Moki Mac, 221 S.W.3d at 576, 584-85. There are no such facts in this case for the

specially appearing Vitol Defendants.

      In fact, Loya has not even sufficiently pled specific jurisdiction. Rather, she

merely alleged that, as to VHIISA, Tinsel, and Stichting Tinsel, these entities

engaged in unspecified “activities purposefully directed to Texas that caused injury

arising to and relating to those activities that form the basis of the lawsuit.” CR 4-

6. This is not the standard for specific jurisdiction. Loya is well aware that she

cannot allege any act by any Vitol Defendant in Texas substantially connected to

the operative facts of her claims, because none exist, so she has attempted to gloss

over the legal standard by alleging that these entities engaged in some activities in

unspecified locations that caused unspecified injuries to unspecified people that

relate in some way to other “activities that form the basis of this lawsuit.” SCR 4.

This vague pleading of some attenuated connection to the facts of this case does

not sufficiently allege specific jurisdiction. As to Sterken and Taylor, she has not

even attempted to allege specific jurisdiction. SCR 5. Nonetheless, in her briefing,

Loya has raised two facts that appear to constitute her basis for her argument on

specific jurisdiction: (1) Taylor’s deposition testimony in London in the divorce

proceedings and (2) the shareholder agreements and related contracts signed by

Miguel Loya relating to the VHIISA and Tinsel shares held by the Loyas as




                                         23
community property. Neither of these establishes specific jurisdiction over any

Vitol Defendant.

      Loya has not alleged that any Vitol Defendant made any misrepresentation

to her, or omitted to tell her any facts, while present in Texas, or even in any

telephone call, letter, or email to Texas. Nor has Loya alleged that the investments

that are the subject of her lawsuit were ever discussed or dealt with in any way by

any of the Vitol Defendants while in Texas. These are the types of facts that would

show a substantial connection between the Vitol Defendants’ contacts with Texas

and the operative facts of this case, but they do not exist.

      B.     Taylor’s London deposition is not a Texas contact.
      The only fact cited by Loya that connects Taylor to this case is Taylor’s

appearance in London at a deposition in the underlying divorce.            Taylor’s

appearance at a deposition in London, as ordered by a London court, cannot

constitute a contact with Texas. Even if Taylor made a misrepresentation or an

omission during that deposition in London—which Taylor denies and Loya has not

even alleged—that would not constitute a purposeful contact with Texas. Where

allegedly fraudulent conduct occurs outside of Texas, there is no purposeful

availment of the benefits of doing business in Texas, even if the tort relates to

property in Texas. Curocum Energy LLC v. Young-Sub Shim, 416 S.W.3d 893,




                                          24
978-98 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Loya cannot cite a single

act by Taylor in Texas that is substantially connected to her claims in this case.

      C.     The shareholder agreements are not substantially connected to
             the operative facts of the case.
      The Texas Supreme Court has explained that, in a fraud case, the operative

facts are the actual misrepresentations or communications in which facts were

omitted, not other events that just bear some relationship to the case.          BMC

Software, 83 S.W.3d at 786-87. Here, the shareholder agreements do require Loya

to litigate her claims against the Vitol Defendants in the Netherlands because

Loya’s allegations of duty are based on her alleged status as a shareholder of

VHIISA, Tinsel, and/or Stichting Tinsel, and the broad language of the forum

selection clause in the shareholder agreements encompasses all disputes “arising

out of or in connection with” the agreements. CR 180, 219.

      But a jurisdictional contact must be “substantially connected to the operative

facts” of the case, not merely “in connection with” some aspect of the case. BMC

Software, 83 S.W.3d at 786-87. The shareholder agreements are not substantially

connected to the operative facts of the case; there is no claim that Mr. Loya was

fraudulently induced to sign the agreements, for example.

      Loya’s only argument for a substantial connection between these contracts

and the operative facts of the case is that, because the Vitol Defendants cited them

in their motions to dismiss based on a mandatory forum selection clause, they must

                                          25
be substantially connected. But the Texas Supreme Court has rejected that theory.

In Michiana, the Texas Supreme Court found that (1) the trial court should have

enforced the forum selection clause in the contract between the Texas resident and

the foreign defendant and (2) Texas courts did not have specific jurisdiction over

the forum defendant. 168 S.W.3d at 793. In fact, Texas courts have treated forum

selection and choice of law provisions selecting foreign forums and foreign law as

evidence that the parties specifically intended to avoid availing themselves of the

benefits of Texas law. Id. at 792; see also J.A. Riggs Tractor Co., 209 S.W.3d at

332. Under Loya’s theory, a foreign defendant who had a contract with a Texas

resident that specified a mandatory foreign forum could never enforce that forum

selection clause without subjecting itself to personal jurisdiction in Texas. This is

absolutely contrary to the Texas Supreme Court’s holding in Michiana.            168

S.W.3d at 793. The trial court properly granted Appellees’ special appearances.

IV.   The Trial Court Did Not Err in Denying Loya’s Motion for
      Continuance.

      A.     A plaintiff seeking a continuance of a special appearance hearing
             must demonstrate that the discovery is “essential” to the
             plaintiff’s opposition.
      Rule 120a(3) of the Texas Rules of Civil Procedure provides that a trial

court may order a continuance to permit discovery to be had or depositions to be

taken, or make any other order as is just, where it appears from the affidavits of a

party opposing a special appearance that he cannot, for reasons stated in the

                                         26
affidavit, present facts essential to justify his opposition to the special appearance.

TEX. R. CIV. P. 120a(3) (emphasis added).

      B.     Loya had ample time to conduct discovery.
      The Vitol Defendants filed special appearances on July 26, 2014. CR 51,

64, 77, 90, 103. After all parties agreed to a hearing date, the Vitol Defendants

submitted a Notice of Oral Hearing on August 25, 2014, notifying the parties that

the special appearances were set for hearing on October 6, 2014. SCR 26. On

September 6, 2014, counsel for Ms. Loya contacted counsel for the Vitol

Defendants, requesting an extension on the hearing. SCR 27. Counsel for the

Vitol Defendants agreed to an extension, and on September 23, 2014, the Vitol

Defendants submitted an Amended Notice of Oral Hearing, notifying the parties

that the special appearances were set for hearing on November 10, 2014. Id. On

October 16, 2014, the Vitol Defendants filed amended special appearances. CR

121, 149, 160, 199, 225. These amended special appearances contained only a few

additional factual allegations. Id.; SCR 27. On October 27, 2014, the Vitol

Defendants submitted another Amended Notice of Hearing, confirming that the

special appearances were set for hearing on November 10, 2014. SCR 27.

      On October 28, 2014, less than two weeks before the hearing and over three

months after the Vitol Defendants filed their original special appearances, counsel

for Loya requested discovery for the first time—depositions of all the declarants to


                                          27
the special appearances, including Sam Lambroza, Karl Pardaens, Jonathan Marsh,

Ian Taylor, and Jacobus Sterken. Id.; CR 434. Counsel for the Vitol Defendants

agreed and offered Mr. Lambroza, Mr. Pardaens, Mr. Marsh, Mr. Taylor, and Mr.

Sterken for depositions by phone during the week of November 3, 2014. SCR 27.

On October 29, 2014, three months after the special appearances were filed and

two weeks before the hearing that had been set for almost two months, Loya served

her first requests for production on the Vitol Defendants, to which responses were

not due until after the long-scheduled hearing. Id.; CR 434-447.

      The affidavits of Loya’s counsel attached to the motions for continuance

simply make the conclusory assertion that Loya has been diligent in seeking

discovery; they do not explain why Loya waited three months to make these

requests or why the information is necessary to Loya’s opposition to the special

appearances. See, e.g., CR 449. Loya did not act diligently in trying to retain the

information sought, and the trial court properly denied Loya’s motions for

continuance on that basis alone. BMC Software, 83 S.W.3d at 800–01 (holding

that the trial court did not abuse discretion in denying the continuance before the

special appearance hearing when the movant had ample time to conduct, and did

conduct, discovery).




                                        28
      C.     The documents requested are unnecessary or irrelevant to the
             establishment of jurisdictional facts.
      This Court has recognized that “Rule 120a(3) does not authorize

postponement of a special appearance hearing to allow a party to obtain discovery

prior to the court’s ruling on the special appearance that is unnecessary or

irrelevant to the establishment of jurisdictional facts.” In re Stern, 321 S.W.3d

828, 839–40 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding) (holding that

that a non-resident defendant’s emails to his alleged co-conspirators are not

relevant to the establishment of Texas courts’ jurisdiction over the defendant and

cannot be essential to justifying the opposition to the special appearance and that

the trial court abused its discretion by ordering discovery); see also Moncrief Oil

Intn’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 158 (Tex. 2013) (holding that the

trial court did not abuse its discretion in refusing to allow depositions because the

party seeking to compel the depositions did not demonstrate the additional

jurisdictional facts the depositions would provide).

      Loya did not explain to the trial court why the requested discovery was

necessary. In fact, the information Loya requested from the Vitol Defendants is

wholly irrelevant to the establishment of jurisdictional facts. For example, Loya’s

request for information regarding the Vitol Defendants’ communications and




                                         29
contracts with Texas residents is irrelevant to general jurisdiction under recent case

law from the United States Supreme Court.9

       In Daimler, the United States Supreme Court rejected the exercise of general

jurisdiction “in every State in which a corporation ‘engages in a substantial,

continuous, and systematic course of business.’” Daimler, 134 S. Ct. at 760-61.

Recognizing the limited nature of general or all-purpose jurisdiction, the Court

reiterated that a defendant’s affiliations with the State in which suit is brought must

be so constant and pervasive as to render it essentially “at home” in the forum

State. Id. at 754. The jurisdictional facts Loya has alleged do not support general

jurisdiction under this standard, and she is not entitled to engage in a broad-ranging

fishing expedition into the “systematic course of business”-type facts that would

not support general jurisdiction.          Loya has admitted that none of the Vitol

Defendants reside in Texas, have their headquarters in Texas, or are incorporated

in Texas; accordingly, none of them are “at home” in Texas.

       The document requests Loya propounded are extraordinarily broad and

burdensome, and they bear little, if any, connection to the jurisdictional facts Loya

9
        Although Loya has argued specific jurisdiction to this Court, she did not allege a
substantial connection between the Vitol Defendants’ alleged contacts with Texas and the
operative facts of the litigation. SCR 4-6; see Moki Mac River Expeditions v. Drugg, 221
S.W.3d at 585 (emphasis added). To the extent Loya genuinely contends specific jurisdiction
exists, the relevant facts involve the alleged misrepresentations and omissions. Loya contends
these occurred in discovery in her divorce proceeding. Loya has the products of that discovery,
and to the extent any of that discovery physically took place in Texas, Loya was well aware of
those facts prior to filing her claims against the Vitol Defendants. She did not need discovery to
allege or prove those facts, if they existed.
                                               30
has pled.10 Loya has essentially asked the Vitol Defendants to open their file

cabinets and let her search through them for any Texas contacts. For example, of

the entity defendants, Loya has sought all articles of incorporation, by-laws,

minutes of shareholder and board meetings, resolutions of the directors and

shareholders, and stock transfer books; all telephone bills reflecting long-distance

calls and faxes (whether or not involving Texas); all invoices received from Texas

customers or clients of the entity and its affiliated or subsidiary companies in the

last five years (notwithstanding the fact that affiliate and subsidiary contacts cannot

be attributed to the defendants); all organizational charts; all insurance policies,

including on any vessels or drilling rigs; all accounting ledgers; all documents

reflecting asset acquisitions; and many other items with no connection to

jurisdiction. See, e.g., CR 434-447 (requests to Stichting Tinsel). These requests

do not reflect a good-faith attempt at jurisdictional discovery, nor did Loya

demonstrate by affidavit to the trial court any tie between these requests and

information that is “essential to justify [her] opposition.” TEX. R. CIV. P. 120a(3).

          To the extent that any of Loya’s document requests were even relevant,

Loya was not prevented from conducting discovery on the information sought in

those requests. When Loya requested depositions less than two weeks before the

hearing, the Vitol Defendants made a corporate representative for each Vitol


10
     See, e.g., CR 434-447 (Stichting Tinsel); 667-678 (Ian Taylor).
                                                 31
Defendant available for depositions by phone during the following week. Loya’s

counsel had the opportunity to ask questions related to the topics covered in her

requests for production, and in most instances, Loya’s counsel failed to ask any

questions regarding those topics. SCR 30; see also CR 1003, 1057, 1085, 1128,

1159 (deposition transcripts). Loya has complained that certain deponents deferred

to other deponents on important questions, but when this occurred, Loya had the

opportunity to follow up with the subsequent deponent.          For example, Karl

Pardaens, the corporate representative for Tinsel, testified that the best person to

ask about contracts between Tinsel and Miguel Loya was Jacques Sterken. CR

1196-98. Pardaens was deposed on November 4, 2014. CR 1155. Sterken was

deposed on November 6, 2014. CR 1081. Counsel for Loya asked Sterken about

the contracts between Tinsel and Miguel Loya. CR 1103-05. The trial court

properly denied Loya’s motion for continuance.

                                 CONCLUSION

      The trial court did not err in granting the Vitol Defendants’ special

appearances.   Loya has not pled sufficient jurisdictional facts, and the Vitol

Defendants have negated all facts pled and all facts alleged in response to the Vitol

Defendants’ special appearances.      Further, the trial court did not abuse its

jurisdiction in denying Loya’s motion for continuance. Loya failed to demonstrate

that she diligently pursued discovery and that the requested discovery was


                                         32
necessary to her opposition to the special appearances. The Vitol Defendants

respectfully request that the Court affirm the trial court’s orders granting the Vitol

Defendants’ special appearances and dismissing Loya’s claims against the Vitol

Defendants.




                                         33
                                   Respectfully submitted,

                                   VINSON & ELKINS L.L.P.


                                   /s/ Patrick W. Mizell
                                   Patrick W. Mizell
                                   Attorney-In-Charge
                                   Texas Bar No. 14233980
                                   Catherine B. Smith
                                   Texas Bar No. 03319970
                                   Deborah C. Milner
                                   Texas Bar No. 24065761
                                   Jaclyn M. Lynch
                                   Texas Bar No. 24083429
                                   1001 Fannin, Suite 2500
                                   Houston, Texas 77002-6760
                                   Telephone: 713.758.2932
                                   Facsimile: 713.615.5912
                                   e-mail: pmizell@velaw.com
                                   e-mail: csmith@velaw.com
                                   e-mail: cmilner@velaw.com
                                   e-mail: jaclynlynch@velaw.com

         Attorneys for Appellees Ian Taylor, Jacobus Sterken,
Stichting Tinsel Group, Vitol Holding II, S.A., and Tinsel Group, S.A.




                                 34
                      CERTIFICATE OF COMPLIANCE

       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
this brief contains 8,519 words, excluding the words not included in the word
count pursuant to Texas Rule of Appellate Procedure 9.4(i)(1). This is a computer-
generated document created in Microsoft Word, using 14-point typeface for all
text, except for footnotes which are in 12-point typeface. In making this certificate
of compliance, I am relying on the word count provided by the software used to
prepare the document as well as a hand count of words contained in the charts
included in the brief.

                                          /s/ Deborah C. Milner
                                          Deborah C. Milner




                                         35
                         CERTIFICATE OF SERVICE

      The undersigned certifies that on March 25, 2015, the foregoing Brief of
Appellees was served electronically on the following parties in accordance with the
requirements of the Texas Rules of Appellate Procedure:

      Jennifer Job
      James E. Payne
      Provost Umphrey Law Firm, L.L.P.
      490 Park Street
      P. O. Box 4905
      Beaumont, Texas 77701
      409.835.8605
      jjob@pulf.com
      jpayne@pulf.com
      Attorneys for Appellant Leticia Loya


                                         /s/ Deborah C. Milner
                                         Deborah C. Milner




                                        36
