I live in California, and I have a friend who lives in Texas that wired a large amount of money to me. Someone sued my friend in Texas claiming that the money did not belong to her. Recently, I learned that I too have been sued by this same person in Texas. I have never traveled to Texas, nor have I lived or worked in Texas. I do not own property in Texas. I did, however, have numerous phone calls with my Texas friend. Can I get out of this Texas lawsuit?
Maybe, but you should hire a Texas attorney to help you, and the outcome will necessarily depend upon the facts of your particular case. Your Texas attorney may find some support in Old Republic National Title Insurance Co. v. Bell, 2018 WL 2449390 (Tex. June 1, 2018), an opinion recently handed down by the Texas Supreme Court. In Old Republic, the Court found that personal jurisdiction was lacking over the non-resident defendant even though there were allegedly hundreds of phone calls between the Texas resident and the non-Texas resident. Additionally, the Court noted that a non-resident defendant’s acceptance of money – a fungible asset – from someone in Texas is generally of negligible significance for purposes of deciding whether a Texas court can exercise jurisdiction over the non-resident defendant.
"On Texas Law" Developments and Commentary on Texas Civil Litigation, Contracts, Trade Secrets, Tortious Interference, and Procedure
Showing posts with label Special Appearance. Show all posts
Showing posts with label Special Appearance. Show all posts
Monday, June 25, 2018
Friday, February 20, 2015
The Fiduciary Shield Doctrine and Personal Jurisdiction over Non-resident Employees
Should an individual who resides in another state be subject to a Texas Court’s jurisdiction for his work done in Texas when his work was done solely on behalf of his employer?
Generally, an out-of-state resident who is working on behalf of an employer would not be individually liable in Texas because of the “fiduciary shield doctrine.” The “fiduciary shield doctrine” protects nonresident employees from the jurisdiction of Texas courts when all of the employee’s contacts with Texas were made on behalf of his employer. Nichols v. Tseng Hsiang Lin, 282 S.W.3d 743, 750 (Tex. App.–Dallas 2009, no pet.) This doctrine is consistent with the Texas Supreme Court’s holding that an out-of-state employee, in his individual capacity, cannot be subject to Texas personal jurisdiction based solely on the activities of his employer. Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 437-38 (Tex. 1982). For example, a Texas court should not exercise personal jurisdiction over a Colorado resident who traveled to a Texas office every few months to conduct business on behalf of his employer. See Urban v. Barker, 2007 Tex. App. LEXIS 1633, at *21 (Tex. App.–Houston [14th Dist.], March 6, 2007).
The fiduciary shield doctrine does not apply to an officer’s or employee’s tort’s committed in Texas. See Ennis v. Losieau, 164 S.W.3d 698, 707 (Tex. App.–Austin 2005, no pet.) This rule is not based on an exception to the fiduciary shield doctrine, but rather on the well-established principal that "a corporate officer is primarily liable for his own torts." Morris v. Kohls-York, 164 S.W.3d 686, 695 (Tex. App.–Austin 2005, no pet.).
Generally, an out-of-state resident who is working on behalf of an employer would not be individually liable in Texas because of the “fiduciary shield doctrine.” The “fiduciary shield doctrine” protects nonresident employees from the jurisdiction of Texas courts when all of the employee’s contacts with Texas were made on behalf of his employer. Nichols v. Tseng Hsiang Lin, 282 S.W.3d 743, 750 (Tex. App.–Dallas 2009, no pet.) This doctrine is consistent with the Texas Supreme Court’s holding that an out-of-state employee, in his individual capacity, cannot be subject to Texas personal jurisdiction based solely on the activities of his employer. Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 437-38 (Tex. 1982). For example, a Texas court should not exercise personal jurisdiction over a Colorado resident who traveled to a Texas office every few months to conduct business on behalf of his employer. See Urban v. Barker, 2007 Tex. App. LEXIS 1633, at *21 (Tex. App.–Houston [14th Dist.], March 6, 2007).
The fiduciary shield doctrine does not apply to an officer’s or employee’s tort’s committed in Texas. See Ennis v. Losieau, 164 S.W.3d 698, 707 (Tex. App.–Austin 2005, no pet.) This rule is not based on an exception to the fiduciary shield doctrine, but rather on the well-established principal that "a corporate officer is primarily liable for his own torts." Morris v. Kohls-York, 164 S.W.3d 686, 695 (Tex. App.–Austin 2005, no pet.).
Wednesday, February 11, 2015
Texas Court’s have “All Purpose” Jurisdiction if a Company is “At Home” in Texas
Does a Texas court have general (i.e., “all-purpose”) jurisdiction over a foreign corporation for alleged injuries that took place entirely outside of Texas?
Generally, the Due Process Clause of the Fourteenth Amendment does not permit a Texas court to exercise general jurisdiction over a foreign corporation for alleged injuries that took place entirely outside of Texas unless the corporation’s affiliations with Texas are so constant as to render it essentially “at home” in Texas. See Daimler AG v. Bauman, 134 S. Ct. 746, 748 (2014).
General jurisdiction (or all-purpose jurisdiction) is appropriate only when a foreign corporation’s continuous corporate operations within Texas are so substantial that its activity justifies jurisdiction over dealings entirely different from its activities in Texas. See International Shoe Co. v. Washington, 236 U.S. 310, 318 (1945). The proper test for general jurisdiction is whether a foreign corporation’s affiliations with a state are so continuous and systematic as to render it essentially at home in the state. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846 (2011). A company’s place of incorporation and principal place of business are normally where a corporation is “at home” and that is the state in which a corporation may normally be sued. See Daimler AG, 134 S. Ct. at 760. In Daimler, the Supreme Court noted that it is possible for general jurisdiction to exist in a state other than where its formal place of incorporation or principal place of business is, but such a such a case would have to be exceptional and the company’s operations in the state would have to be substantial. See Daimler AG, 134 S. Ct. at 760.
Generally, the Due Process Clause of the Fourteenth Amendment does not permit a Texas court to exercise general jurisdiction over a foreign corporation for alleged injuries that took place entirely outside of Texas unless the corporation’s affiliations with Texas are so constant as to render it essentially “at home” in Texas. See Daimler AG v. Bauman, 134 S. Ct. 746, 748 (2014).
General jurisdiction (or all-purpose jurisdiction) is appropriate only when a foreign corporation’s continuous corporate operations within Texas are so substantial that its activity justifies jurisdiction over dealings entirely different from its activities in Texas. See International Shoe Co. v. Washington, 236 U.S. 310, 318 (1945). The proper test for general jurisdiction is whether a foreign corporation’s affiliations with a state are so continuous and systematic as to render it essentially at home in the state. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846 (2011). A company’s place of incorporation and principal place of business are normally where a corporation is “at home” and that is the state in which a corporation may normally be sued. See Daimler AG, 134 S. Ct. at 760. In Daimler, the Supreme Court noted that it is possible for general jurisdiction to exist in a state other than where its formal place of incorporation or principal place of business is, but such a such a case would have to be exceptional and the company’s operations in the state would have to be substantial. See Daimler AG, 134 S. Ct. at 760.
Web Sites and Texas Court Jurisdiction
If my company is not incorporated in Texas and does no business in Texas, will its merely having a web site nevertheless subject it to the jurisdiction of a Texas court?
Generally, a company that is neither incorporated in Texas nor does business in Texas, will not be subject to a Texas court’s jurisdiction just because of its web site. See Monkton Ins. Servs. v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014). The Supreme Court recently held that the proper test for general jurisdiction is whether the defendant’s affiliations with a state are so continuous and systematic as to render it “at home” in the state. Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014). For corporations, it is therefore “incredibly difficult to establish general jurisdiction in a forum other than the place of incorporation or principal place of business.” Monkton Ins. Servs., 768 F.3d at 432.
Generally, a foreign corporation’s website, at most, shows that the corporation conducts business with the forum state, not in the forum state. Id. An interactive website is not enough to render a defendant “at home” and general jurisdiction is therefore improper. Id. Even evidence that the foreign corporation communicated with other residents of the forum state through its website would not be enough for general jurisdiction. Monkton Ins. Servs., 768 F.3d at 434.
Generally, a company that is neither incorporated in Texas nor does business in Texas, will not be subject to a Texas court’s jurisdiction just because of its web site. See Monkton Ins. Servs. v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014). The Supreme Court recently held that the proper test for general jurisdiction is whether the defendant’s affiliations with a state are so continuous and systematic as to render it “at home” in the state. Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014). For corporations, it is therefore “incredibly difficult to establish general jurisdiction in a forum other than the place of incorporation or principal place of business.” Monkton Ins. Servs., 768 F.3d at 432.
Generally, a foreign corporation’s website, at most, shows that the corporation conducts business with the forum state, not in the forum state. Id. An interactive website is not enough to render a defendant “at home” and general jurisdiction is therefore improper. Id. Even evidence that the foreign corporation communicated with other residents of the forum state through its website would not be enough for general jurisdiction. Monkton Ins. Servs., 768 F.3d at 434.
Saturday, July 5, 2014
Mandamus Available for Continuance of Special Appearance Hearing
Does a trial court abuse its discretion if it continues a special appearance hearing even though the plaintiff has not followed the requirements of Texas Rule of Civil Procedure 120a?
Yes. If a plaintiff, prior to a hearing on a special appearance, does not file affidavits proving he needs a continuance to obtain essential discovery, the trial court abuses its discretion if it continues the special appearance hearing to allow discovery. See IRN Realty Corp. v. Hernandez, 300 S.W.3d 900, 903 (Tex. App – Eastland 2009, no pet.)(holding trial court abused its discretion by granting motion to compel and abating special appearance hearing to allow plaintiff to conduct additional discovery because plaintiff did not follow procedures for continuance under Rule 120a(3)); see also Washington DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723, 739 (Tex. App.--Houston [14th Dist.] 2013, pet. filed)(holding plaintiff did not follow procedures under Rule 120a(3) for discovery continuance). “Texas Rule of Civil Procedure 120a governs special appearances,” and “Rule 120a ‘specifically provides for the means to obtain a continuance of the special appearance so that . . . [additional discovery] may be conducted: affidavits of the party opposing the special appearance.’” In re Stern, 321 S.W.3d 828, 836-839 (Tex. App. – Houston [1st Dist.] 2010, orig. proceeding)(quoting IRN Realty Corp. v. Hernandez, 300 S.W.3d 900, 903 (Tex. App – Eastland 2009, no pet.)); see also Said v. Maria Invs., Inc., No. 01-08-00962-CV, 2010 Tex. App. LEXIS 959, 2010 WL 457463, at *3 (Tex. App.--Houston [1st Dist.] Feb. 11, 2010, pet. denied) (mem. op.) ("Rule 120a(3) gives the trial court the discretion to continue a special appearance hearing and thereby extend the time in which evidence may be served, but this power applies only to a party opposing the special appearance who avers that he cannot adequately prepare for the special appearance hearing.")(emphasis added); see also Parex Resources, Inc. v. ERG Resources, LLC, 2014 Tex. App. Lexis 880, *66 fn. 34 (Tex. App. – Houston [14th Dist.] Jan. 28, 2014).
Yes. If a plaintiff, prior to a hearing on a special appearance, does not file affidavits proving he needs a continuance to obtain essential discovery, the trial court abuses its discretion if it continues the special appearance hearing to allow discovery. See IRN Realty Corp. v. Hernandez, 300 S.W.3d 900, 903 (Tex. App – Eastland 2009, no pet.)(holding trial court abused its discretion by granting motion to compel and abating special appearance hearing to allow plaintiff to conduct additional discovery because plaintiff did not follow procedures for continuance under Rule 120a(3)); see also Washington DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723, 739 (Tex. App.--Houston [14th Dist.] 2013, pet. filed)(holding plaintiff did not follow procedures under Rule 120a(3) for discovery continuance). “Texas Rule of Civil Procedure 120a governs special appearances,” and “Rule 120a ‘specifically provides for the means to obtain a continuance of the special appearance so that . . . [additional discovery] may be conducted: affidavits of the party opposing the special appearance.’” In re Stern, 321 S.W.3d 828, 836-839 (Tex. App. – Houston [1st Dist.] 2010, orig. proceeding)(quoting IRN Realty Corp. v. Hernandez, 300 S.W.3d 900, 903 (Tex. App – Eastland 2009, no pet.)); see also Said v. Maria Invs., Inc., No. 01-08-00962-CV, 2010 Tex. App. LEXIS 959, 2010 WL 457463, at *3 (Tex. App.--Houston [1st Dist.] Feb. 11, 2010, pet. denied) (mem. op.) ("Rule 120a(3) gives the trial court the discretion to continue a special appearance hearing and thereby extend the time in which evidence may be served, but this power applies only to a party opposing the special appearance who avers that he cannot adequately prepare for the special appearance hearing.")(emphasis added); see also Parex Resources, Inc. v. ERG Resources, LLC, 2014 Tex. App. Lexis 880, *66 fn. 34 (Tex. App. – Houston [14th Dist.] Jan. 28, 2014).
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